Citation Nr: 1621590	
Decision Date: 05/31/16    Archive Date: 06/08/16

DOCKET NO.  12-25 379	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to a rating in excess of 50 percent prior to July 13, 2015, and in excess of 70 percent as of that date, for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) from November 24, 2010 to July 12, 2015.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

David Gratz, Counsel



INTRODUCTION

The Veteran served on active duty from May 1966 to March 1968, including in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  In a July 2015 rating decision, the RO increased the Veteran's rating for PTSD from 50 percent to 70 percent, effective as of July 13, 2015; a TDIU was also awarded beginning July 13, 2015.

The Veteran originally requested a Travel Board hearing in his September 2012 substantive appeal; however, in a June 2014 statement, the Veteran withdrew his request for a Board hearing.  38 C.F.R. § 20.704(e).


FINDINGS OF FACT

1.  Throughout the appeal, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas.

2.  As of November 24, 2010, the Veteran's service-connected PTSD precludes him from securing or following a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  From November 24, 2010 through July 12, 2015, the criteria for a 70 percent rating, but no higher, for PTSD are met; a rating in excess of 70 percent is denied for the entire appeal period.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2015).

2.  From November 24, 2010 through July 12, 2015, the criteria for a TDIU are met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Analysis: Ratings greater than 50 percent for PTSD from November 24, 2010 to July 12, 2015, and greater than 70 percent thereafter

The Veteran contends in his December 2010 statement in support of claim that his PTSD is characterized by anxiety, startle response, a quick temper, nightmares, avoidance of large crowds, and extreme moodiness.  In his July 2011 notice of disagreement, the Veteran asserted that he is very angry and temperamental.  He endorsed prior thought of suicide and noted he would do all he could "not to succumb to those thoughts."  In correspondence dated March 2012, the Veteran reported experiencing terrible nightmares and flashbacks.  In September 2012, the Veteran's spouse wrote that he experiences anger.  In his September 2012 substantive appeal, the Veteran wrote that he has severe anger, a short temper, nightmares, hypervigilance, strained relationships, depression, and severe anxiety.  The statement indicated that the Veteran got rid of all of his guns because he was concerned with what would happen if he got too upset.  He was described as always on alert, with his back to the wall in public.  He noted that he was "obsessed" with being clean and with ensuring the security of his home, checking the locks on doors and windows over and over again.  In August 2014, the Veteran characterized his symptoms as making him angry and mean.

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.

Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Thus, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The Veteran is currently rated at 50 percent under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 for PTSD from November 24, 2010 to July 12, 2015.  In a June 2011 rating decision, the RO assigned the effective date of November 24, 2010 for the increase in the Veteran's disability rating to 50 percent, because that is the date of his claim.  Following the June 2011 rating decision, the Veteran filed a notice of disagreement with the assigned 50 percent rating in July 2011.  In a July 2015 rating decision, the RO increased the Veteran's disability rating for PTSD to 70 percent as of the date of a VA examination, July 13, 2015.  In an October 2015 rating decision, the RO also granted TDIU as of July 13, 2015.

The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorder.  38 C.F.R. § 4.130, DC 9411.  Under the General Rating Formula, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id.

A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  Id.

The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

Following a review of the evidence of record, the Board finds that a rating of 70 percent is warranted from November 24, 2010 to July 12, 2015.  The Veteran's initial VA examination, provided in January 2011, includes the Veteran's report that he became so mad during his cooking class that the instructor asked him to leave.  The Veteran also told the January 2011 VA examiner that he has nightmares about Vietnam and road rage, and that he quit his job in November 2009 due to losing his temper with shoplifters.  The Veteran also reported grabbing his nephew by the throat at a family gathering.  He stated that he had recently lost interest in doing activities with other people, and has a very limited social life.  The January 2011 VA examiner observed that the Veteran had a constricted affect and dysphoric mood, and found that his level of anger is attributable to hyperarousal.  The examiner concluded that "there is ample evidence of significant impairment in occupational, social, and recreational functioning," and assigned a global assessment of functioning (GAF) score of 51.
In his September 2012 substantive appeal, the Veteran noted that he did not share all pertinent symptomatology (including his obsessive rituals, hypervigilance, and severe anxiety) with the 2011 VA examiner because he was "trying to be macho."  He also reported the following symptoms to treating VA or Vet Center clinicians for the purpose of treatment: anger and irritability in December 2010; anger, sleep disturbance, road rage, anxiety, nightmares, exaggerated startle response, crowd avoidance, flashbacks, and depression in February 2011; anxiety and aggression in April 2011; visual hallucination of a girl with brief suicidal ideation without intent or plan in January 2013; nightmares and startle response in February 2013; anger and nightmares in April 2013; severe insomnia in June 2013; anxiety, irritability, and recurring nightmares and flashbacks about body bags in July 2013; nightmares a few times per week in January 2014; and anxiety in April 2014.

Based on the evidence of record described above, the Board finds that the Veteran's PTSD resulted in at least occupational and social impairment with deficiencies in most areas due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.  Because the Veteran's PTSD symptoms were consistent with occupational and social impairment with deficiencies in most areas from November 24, 2010 through July 12, 2015, a 70 percent rating is warranted for that period.

Throughout the appeal, the Board finds that a disability rating in excess of 70 percent is not warranted because the Veteran's symptoms do not rise to the level of total occupational and social impairment.  First, the symptoms described above for the appellate period prior to July 13, 2015 do not rise to the level of total occupational and social impairment.  Second, the July 13, 2015 VA examiner recorded that the Veteran tolerates going out, albeit with significant anxiety and distress.  The Veteran also reported yelling, kicking and punching walls, having many physical altercations and some memory concerns, having occasional passive suicidal ideation weekly, and having assaultive ideation daily.  The Veteran denied any homicidal ideation, delusions, or hallucinations.  The examiner found that the Veteran's PTSD symptoms include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and impaired impulse control.

Throughout the appeal, the Veteran is married and lives with his spouse, and does not have symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations (his single hallucination throughout the appeals period cannot be characterized as persistent); grossly inappropriate behavior; persistent danger of hurting self or others (no evidence of harm from his reported physical altercations is of record); intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.  Therefore, a rating in excess of 70 percent is not for application in this case.

Analysis: TDIU from November 24, 2010 to July 12, 2015

The Court has held that a TDIU is a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability.  Id.  Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19.  There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

The record reflects that the Veteran is eligible for TDIU consideration on a schedular basis, as his combined disability rating is 70 percent for his three service-connected disabilities, namely PTSD, rated 70 percent disabling; tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated noncompensable.  38 C.F.R. §§ 4.16(a), 4.25 (2015).

At his January 2011 VA examination, the Veteran told the examiner that he quit his job in the loss prevention field in November 2009 due to losing his temper with shoplifters.  The examiner did not dispute this assessment as to why the Veteran was unable to work, and it is also endorsed by the July 2015 VA examiner and supported by the other findings in the record.  Although the Veteran informed VA in an August 2015 VA Form 21-8940 that he has three years of college education and a work history as a probation officer and loss prevention employee, the Board finds that the severity of his PTSD symptoms described above preclude substantially gainful employment, even with his qualifications.

After reviewing the evidence, the Board finds that the severity of the Veteran's PTSD renders him unable to secure or follow a substantially gainful occupation effective as of November 24, 2010.  38 C.F.R. § 4.16(a).  The Veteran's employer has confirmed the date of his cessation of employment as September 2009, and the reason provided by the Veteran-loss of temper-is consistent with his VA and Vet Center treatment records documenting the severity of his service-connected PTSD.  Thus, entitlement to a TDIU is warranted effective as of November 24, 2010, and the Veteran's appeal is granted.  Id.


ORDER

From November 24, 2010 through July 12, 2015, a rating of 70 percent, but no higher, for PTSD is granted

As of July 13, 2015, a disability rating in excess of 70 percent for PTSD is denied.

A TDIU is granted, effective November 24, 2010.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs