Citation Nr: 1722945 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 13-18 390A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1969 to September 1971, including service in the Republic of Vietnam. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. During the pendency of the appeal, the RO issued a rating decision in September 2015, increasing the Veteran's disability rating to 70%, effective March 24, 2009. However, as the Veteran is presumed to seek the maximum available benefits, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, during the pendency of the appeal, the Veteran reported that he is unemployed due to his service-connected PTSD. See, e.g., January 2016 VA Form 21-8940; See also November 2013 VA Examination; April 2016 VA Examination. Entitlement to a TDIU rating was denied by the RO in a July 2016 rating decision. Although no Statement of the Case (SOC) has been furnished on the question, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2010), the issue of entitlement to a TDIU is considered to be part of the appeal in this matter. Therefore, the issue of entitlement to TDIU is also on appeal before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Symptoms of the Veteran's PTSD have not approximated total occupational and social impairment at any point during the pendency of this appeal. 2. The Veteran's service-connected PTSD at least as likely as not renders him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for the Veteran's PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2016). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2016); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Here, the RO provided the Veteran with an adequate pre-adjudication VCAA notice for his PTSD claim by letter dated April 2009. With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Veteran's service treatment records and DD Form 214 are on file. Additionally, there are no outstanding post-service treatment records which the Veteran has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c)(2), (3) (2016). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded VA examinations, which addressed his PTSD claim, in November 2013 and April 2016. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the November 2013 and April 2016 examination reports, when taken together, are adequate to decide the case. The reports sufficiently address the central medical issues in this case to allow the Board to make a fully informed determination and are supported by rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2016). The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Increased Rating for PTSD Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficient to identify the disease, the resulting disability, and above all, coordination of the rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). The Veteran's PTSD has been rated as 70 percent disabling under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Pursuant to the rating formula, a 70-percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 work-like setting); and inability to establish and maintain effective relationships. The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as: grossly 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; and memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment." Id. As stated above, the Veteran's service-connected PTSD is currently rated as 70 percent disabling under 38 C.F.R. § 4.130, DC 9411. Following review of the evidence of record, the Board finds that his PTSD symptoms do not warrant a higher evaluation at any point throughout the period on appeal. In that regard, the Veteran was afforded a VA PTSD examination in November 2013. The Veteran reported that he lived alone in a house near his daughter's home that was close to the woods, which he did in order to not deal with being in close proximity to many people. He reported that he maintained his property by making necessary repairs and that he handled aspects of daily living on his own. Further, the examiner noted that the Veteran was capable of managing his own financial affairs. In terms of his PTSD symptoms, the examiner reported that the Veteran's PTSD resulted in difficulty falling and staying asleep, irritability, outbursts of anger, difficulty concentrating, hypervigilance, depressed mood, anxiety, suspiciousness, impaired judgment and abstract thinking, disturbances in motivation and mood, impaired impulse control, and difficulty in establishing and maintaining effective work and social relationships. Although the examiner noted short-term memory loss, the examiner attributed the memory loss to the Veteran's apparent limited intellectual functioning, rather than as a symptom of PTSD. In making this finding, the examiner noted an evaluation based on the St. Louis University Mental Status test. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In April 2016, the Veteran was afforded another VA PTSD examination. The Veteran reported that he still lived alone in the same home as reported to the November 2013 examiner. He reported that he attended church every Sunday, but that he sat in the back of the church in order to feel more comfortable. He reported having difficulties with social interactions, as they often resulted in him becoming easily agitated. He reported that he experienced panic attacks, frequent nightmares, hypervigilance, avoidance behavior, irritability, depressed mood, and exaggerated startle response. The Veteran reported that he was hospitalized in an acute psychiatry ward in March 2010 for suicidal and homicidal ideations, but claimed that he had not experienced homicidal thoughts in over two to three years. He reported that he had thoughts of committing suicide, but denied intentions and plans of doing so. The examiner opined that the Veteran was not an imminent threat to harm himself. The examiner reported that the Veteran had persistent and exaggerated negative beliefs about himself and others. The Veteran had a persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, and persistent inability to experience positive emotions. The examiner further reported that the Veteran experienced irritable behavior and angry outbursts with little or no provocation, problems with concentration, and sleep disturbances. The examiner noted that the Veteran was appropriately dressed and groomed for the examination. He was alert and oriented, and his thought processes were logical and coherent. His speech was fluent, and his judgment and insight appeared intact. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. As shown above, the record reflects that the Veteran's symptoms have not been consistent with total occupational and social impairment such that a 100 percent disability rating is warranted. In that regard, the Veteran has not displayed gross impairment in thought process or communication, nor has the record shown that he is a persistent danger of hurting himself or others. As stated above, the record reflects that the Veteran was hospitalized in March 2010 for homicidal and suicidal ideations. However, the Veteran has denied intentions of acting on the ideations. Moreover, a review of the record reflects that the Veteran is not a persistent danger of hurting himself or others. Additionally, VA examiners and clinicians have consistently observed the Veteran to be alert and oriented, and with appropriate grooming and hygiene. Further, the Veteran has not displayed disorientation to time or place, or memory loss for names of close relatives, his prior occupations, or his own name. Accordingly, the Board finds that the Veteran's PTSD symptoms most nearly approximate a 70 percent evaluation. The Board has also considered the lay statements of record and finds that they are consistent with the 70% disability rating that has been assigned. III. TDIU All veterans who are shown to be unable to secure and follow substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure or follow substantially gainful employment. See 38 C.F.R. § 4.16. An award of TDIU does not require a showing of 100% unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). However, an award of a TDIU requires that the claimant show an inability to undertake substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b) ("[A]ll veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled."). In determining whether a claimant is unable to secure or follow substantially gainful employment, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). 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 the Board conducts a TDIU analysis, it must take into account the individual's education, special training, and previous work experience, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See id. The Veteran is service connected for PTSD, evaluated as 70 percent disabling. Thus, the Veteran meets the schedular requirements for TDIU due to service-connected disabilities under 38 C.F.R. § 4.16(a). Throughout the appeal period, the Veteran has alleged that his service-connected PTSD has precluded him from obtaining and maintaining employment. See January 2016 VA 21-8940. As shown above, the record reflects that the Veteran has significant work-related limitations due to his service-connected PTSD. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the Veteran's highest educational level is ninth grade. After separating from the military, the Veteran worked as a utility worker until approximately 1989. The April 2016 VA examiner opined that the Veteran's PTSD symptoms significantly limited his ability to maintain longer-term employment in particular work settings. Specifically, work settings that require interpersonal interactions. Thus, when taking into account the evidence of the Veteran's limited education along with limitations caused by his service-connected PTSD as noted by the November 2013 and April 2016 VA examiners, the Board finds that the evidence is at least in equipoise as to whether the Veteran can secure or follow substantial gainful employment. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f ... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). Accordingly, entitlement to a TDIU is granted. ORDER Entitlement to an evaluation in excess of 70 percent for PTSD is denied. Entitlement to a TDIU is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs