Citation Nr: 1751482 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-34 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to April 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in pertinent part, granted service connection for PTSD and assigned an initial 50 percent rating, effective from October 29, 2008, the date of the Veteran's claim. The Veteran disagreed with the initial rating assigned and this appeal ensued. In November 2016, the Board remanded the case back to the RO so that the Veteran could be scheduled for a video hearing at the RO. In July 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's service-connected PTSD has, since the effective date of service connection, been manifested by impaired impulse control; difficulty in adapting to stressful circumstances (including work or a worklike setting); chronic sleep disturbance, isolative behavior, impaired insight, and an inability to establish and maintain effective relationships; all of which more nearly approximates occupational and social impairment with deficiencies in most areas, including judgment, thinking, mood, family relations, and work; total occupational and social impairment has never been demonstrated. 2. The evidence is in relative equipoise as to whether the Veteran's service-connected disabilities preclude gainful employment. CONCLUSIONS OF LAW 1. Resolving all doubt in favor of the Veteran, the criteria for the assignment of an initial 70 percent rating, but not higher, for the service-connected PTSD, have been more nearly approximated since the effective date of service connection. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for TDIU are more nearly approximated. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran maintains that his PTSD symptoms are more severe than currently rated, and, that his PTSD precludes gainful employment. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria are as follows. A 50 percent rating is warranted for 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; difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for 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. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; 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; memory loss for names of close relatives, own occupation, or own name. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. In this case, the Board finds that the Veteran has had deficiencies in most areas, including work, family relations, judgment, thinking, and mood. This finding is supported by evidence obtained from VA examination reports in June 2009, November 2011, and March 2013, as well as VA outpatient mental health records from December 2011 through January 2012; lay statements provided by the Veteran's sisters; and, his July 2017 video conference hearing testimony. Collectively, this evidence shows that the Veteran has difficulty getting along with others, including several ex-spouses, as well as his children. He has been divorced 4 times and is currently single. He has consistently reported that he does not like to be around other people and has left several jobs in the past because he did not like his co-workers. He has spent time in jail, and has consistently reported exaggerated startle response, hypervigilance, and impaired impulse control. He described panic attacks and nightmares. He had a restricted range of affect, and a markedly diminished interest in participation in significant activities. In December 2010, the Veteran was evaluated by a VA psychiatrist, who noted that the Veteran appeared depressed and anxious, with only fair insight and judgment. His GAF score was 47. GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation or severe obsessional rituals) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The Veteran's two sisters reported in December 2012 lay statements that the Veteran was never the same after his return from Vietnam. They reported that the Veteran abused alcohol, avoided discussing distressing events in Vietnam, and had periods of unprovoked violence. They noticed that the Veteran was very jumpy, and paranoid. The Veteran's sisters also indicated that the Veteran could not keep a job because he had issues with authority figures, and he was unable to maintain relationships with women. The findings in December 2010 and December 2012 are consistent with the Veteran's July 2017 hearing testimony. At the hearing, the Veteran described periods of violent behavior, nightmares, obsessional rituals, avoidant behavior, and an inability to maintain social relationships. The Veteran's inability to maintain social relationships is demonstrated by his four failed marriages, and his estrangement from most of his siblings and children. Although VA examiners in 2009 and 2011 suggested that the Veteran's PTSD was in remission, or only mild in degree, these findings were made without knowledge of the competent and credible statements from the Veteran's sisters. Additionally, the Board places great weight on the VA psychiatrist's December 2010 assessment, which is more in line with the behavior noted by the Veteran's sisters after he returned home from Vietnam. According to the VA psychiatrist in December 2010, the Veteran had only limited insight, which could have resulted in the Veteran underreporting, or downplaying, his symptoms at the earlier examinations. Additionally, the Board places great weight on the evidence provided by the Veteran's sisters because they were able to observe the Veteran's day to day behavior and functional limitations over time, instead of just a snapshot at one moment during a VA examination. Moreover, the Veteran's July 2017 hearing testimony is more in line with the overall disability picture described by the Veteran's sisters since the Veteran returned home from Vietnam, than what is noted during the examinations. The Veteran and his sisters are competent to report these types of observable symptoms. In light of the foregoing, the Board finds that the evidence is in relative equipoise as to whether the Veteran has deficiencies in most areas as a result of his PTSD. In other words, the evidence in favor of the assignment of a 70 percent rating is equally weighed against the evidence suggesting that a lower rating should be assigned; and, at no time has the evidence supported the assignment of a 100 percent rating for PTSD. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for the assignment of a 70 percent rating, but not higher, is warranted for the Veteran's PTSD for the entire period covered by this claim. At no time, however, has the Veteran exhibited PTSD symptomatology suggestive of total occupational and social impairment. This is demonstrated by the Veteran's ability to appear on time for his medical appointments, dress appropriately; and, interact and communicate appropriately with his doctors and at his hearing. See, e.g., VA examination reports from June 2009, November 2011, and March 2013; outpatient treatment records from December 2010 to January 2011; and, July 2017 hearing transcript. The Veteran also asserts that he is unable to maintain gainful employment as a result of his PTSD. A total disability rating may be assigned, where the schedular rating is less than total, when it is determined that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16(a) where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system and/or disabilities resulting from common etiology or a single accident are considered as one disability. Id. Even when the above threshold percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The Board must determine whether the Veteran is precluded from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage") as a result of service-connected disabilities. See Moore v. Derwinski, 1 Vet. App. 356 (1991). To prevail in a claim for a TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place the Veteran in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in 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, 168 (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 degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities include PTSD, now rated as 70 percent disabling since October 29, 2008 pursuant to this decision. Other service-connected disabilities include tinnitus, rated as 10 percent disabling; and, malaria, shell fragment wound left lateral neck, bilateral hearing loss, and right wrist scar, all rated as noncompensable. The combined evaluation for compensation purposes is 70 percent. Accordingly, the threshold schedular percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) are met for the entire period covered by this claim, and the only remaining question is whether the Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and work history. The record shows that the Veteran has only an 8th grade education. See, e.g., August 2008 private disability assessment. According to the record, the Veteran has been unemployed since 2005. The Social Security Administration (SSA) determined in September 2008 that the Veteran was disabled for SSA purposes due to glaucoma and anxiety disorders. The Veteran has described himself as a "workaholic" and has reported that he had never been fired from a job. However, he also noted that he had left numerous jobs for various reasons, including that he could not get along with others, and because he "got tired of it." He worked at one job for 5 years, but explained that he was able to work alone and never had to deal with other people. That job ended when the company went out of business. See August 2008 private disability assessment, June 2009 VA examination report, and March 2013 VA examination report. His sisters indicated in December 2012 lay statements that the Veteran could never keep a job very long because of an inability to work with authority figures and anger outbursts. The VA examiner in March 2013 opined that the Veteran was not unemployable due to his service-connected PTSD because he was able to maintain gainful employment for 5 years and his employment there did not end due to his PTSD. Notwithstanding the Veteran's 5-year employment ending in 2005, the Board finds that the Veteran has been unemployable due to service-connected disabilities for the entire period covered by this claim. As noted above, the Veteran is unable to maintain social relationships; and, according to his sisters' statements, he cannot respond appropriately to authority figures. Thus, while the Veteran may act appropriately with his doctors and other mental health care providers, it is clear that the Veteran cannot work with others. For example, at his March 2013 VA examination, the Veteran explained that at one point in 2007, he was driving a dump truck and accidentally backed into his boss's car, and when the boss "got in his face" he threatened to kill his boss and never returned to the job site. After careful review of the record, the Board finds the Veteran experiences functional limitations due to service-connected PTSD that preclude substantially gainful employment. To the extent that the record suggests that the Veteran could perform the requirements of employment in a solo environment, the Board finds that such employment in this case would be no more than marginal given the excessive restrictions this would put on finding adequate employment. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal). Moreover, the ultimate responsibility for determining the effects of disabilities on the question of employability rests with the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). When, as in this case, reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. Therefore, affording the Veteran all benefit-of-the-doubt, the Board finds that the Veteran is unable to perform the physical and mental acts required for substantially gainful employment due to his service-connected PTSD. Accordingly, TDIU is granted. (CONTINUED ON NEXT PAGE) ORDER A 70 percent initial disability rating, but no higher, for PTSD, is granted, subject to regulations applicable to the payment of monetary benefits.. A TDIU is granted, subject to regulations applicable to the payment of monetary benefits. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs