Citation Nr: 1751893	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  14-03 286	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

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


WITNESSES AT HEARING ON APPEAL

The Veteran and B. L.



ATTORNEY FOR THE BOARD

S. S. Mahoney, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Army from January 1965 to January 1968, including service in the Republic of Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  

In January 2017, the Veteran presented testimony before the undersigned Veterans Law Judge.  A hearing transcript is of record.


FINDINGS OF FACT

1.  The Veteran's PTSD has been manifested by no more than occupational and social impairment with deficiencies in most areas for the entire appeal period.

2.  The Veteran's PTSD renders him unable to secure or follow a substantially gainful occupation. 


CONCLUSIONS OF LAW

1.  A rating in excess of 70 percent for PTSD is denied for the entire appeal period.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017).

2.  The criteria for a TDIU are met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.341, 4.3, 4.16(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

PTSD

The Veteran asserts that the currently assigned PTSD ratings are not adequate and warrant higher ratings.  The appeal period before the Board begins on January 19, 2010, one year before the claim for an increased rating.  Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found 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.  If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

The Veteran's PTSD is rated pursuant to 38 C.F.R. § 4.130, DC 9411.  PTSD is rated under the General Rating Formula for Mental Disorders, which provides a 70 percent rating 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 work-like setting); inability to establish and maintain effective relationships.  Id.
A 100 percent 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; 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.  Id.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).

Initially, the Board notes that the Veteran is also diagnosed with nonservice-connected major depressive disorder, and the August 2008 and February 2011 VA examiners have indicated that his depression is partially related or secondary to his PTSD.  Thus, the Board's instant discussion attributes all of the Veteran's mental health symptoms to his service-connected PTSD.  Mittleider v. West, 11 Vet. App. 181, 182 (1998). 

Upon review of the totality of the record, the Board finds that a rating in excess of 70 percent for PTSD is not warranted at any point during the appeal period.

At the January 2017 Board Hearing, the Veteran endorsed experiencing impaired impulse control, impaired short term memory, as well as hallucinations or delusions.  He stated that he prefers to socially isolate himself and stay away from crowds.  The Veteran further stated that he has intrusive thoughts about Vietnam and that he knows they won't ever go away until he's dead, so "death doesn't scare [him]."  He also reported sleeping excessively to escape and that he wishes "[he] could go to sleep and not wake up."  B.L, the Veteran's girlfriend, testified that the Veteran can sleep for days and that normally he does not want to be asleep, but does not know what to do with himself so he just sleeps, and that at times when he gets frustrated or angry, he just goes to sleep and stays asleep.  She also reported that he often talks and thinks about death and that once after a sleeping well, he told her that "[he] decided that if this is what death was, [he] want[s] to go there."  The Veteran has reported suicidal thoughts and wishes for death since the beginning of the appeal period.  See February 2011 VA examination report.  However, the Veteran has never demonstrated symptoms of similar severity, frequency, or duration as to those contemplated by the 100 percent criteria.  Here, the Veteran is currently living with his girlfriend of 18 years.  At his Board hearing, he indicated limited social relationships and appropriate social interactions with other individuals, and even mentioned joking around with others at his counselor's office.  Thus, the evidence does not show total social impairment due to his PTSD symptoms.  Moreover, any current social impairments, to include his limited social relationships, impaired impulse control and difficulty interacting with other individuals, are adequately considered by his currently assigned 70 percent rating.  Furthermore, VA examination reports and treatment records do not show a deficiency in judgment or insight, and there have been no deficiencies identified in the Veteran's thought processes or communication.  Additionally, he has never been found to exhibit inappropriate behavior or be unable to maintain a minimum level of hygiene and has been found competent to manage his financial affairs.  See August 2009 and February 2011 VA examination reports.

Although the Veteran has testified as to experiencing disorientation, hallucinations and delusions, these symptoms are not otherwise reflected during the appeal period, and therefore are not "persistent."  Also, despite expressing suicidal ideation, he has consistently denied any intent; thus there is not a persistent danger of the Veteran hurting himself.  Moreover, even though he has reported memory loss, there is no competent and credible evidence of such severe memory loss associated with a 100 percent rating.  There are no other symptoms throughout the appeal period reflective of total social impairment.  Therefore, a 100 percent schedular rating is not warranted at any point during the appeal period.

TDIU

The Veteran asserts that his PTSD prevents him from securing or following any substantially gainful employment.  He reports that he prefers to be alone, dislikes large crowds, and has problems with concentration.  Therefore, he states that he is unable to maintain employment and finds tasks difficult.  See Board Hearing Transcript at 3.

A total disability rating may be assigned, 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.  38 C.F.R. § 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 any nonservice-connected disabilities.  See 38 C.F.R. 
§§ 4.16, 4.19.

Given the Veteran's 70 percent rating for PTSD, he meets the criteria for consideration of TDIU on a schedular basis.  38 C.F.R. § 4.16(a).  He has no other service-connected disabilities.  Accordingly, what remains to be determined is whether the functional impairment associated with his PTSD is of such nature and severity as to preclude substantially gainful employment.

The Veteran reports that he has been unemployed since either 1978 (see March 2011 VA Form 21-8940), 1996 (see September 2008 VA Form 21-8940), or 1998 (see September 2013 VA Form 21-8940), or 2000 (see August 2007 VA treatment record).  He reports completing two years of high school with no other education or training.  See September 2013 VA Form 21-8940. 

Here, while the February 2011 VA examiner found that the Veteran's medical problems had a "primary impact" on his occupational functioning, he also determined that his isolative behavior, irritability, and low motivation associated with PTSD also "significantly" impacted such functioning.  The Board emphasizes that the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question.  Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  The examiner's favorable finding, coupled with the Veteran's lengthy history of chronic suicidal ideation and competent and credible reports of severe social withdrawal, indicate the Veteran is unable to secure or follow a substantially gainful occupation.  Accordingly, affording the Veteran the benefit of the doubt, the Board finds that employment is not realistically within his mental capabilities.  A TDIU is therefore granted.


ORDER

A rating in excess of 70 percent for PTSD is denied.

A TDIU is granted.



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



Department of Veterans Affairs