Citation Nr: 1752516 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-21 298A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increase in a 50 percent rating for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1966 to May 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied an increase in a 50 percent rating for PTSD and denied a TDIU. In March 2017, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to various symptoms; total occupational and social impairment has not been shown. 2. The Veteran's service-connected disabilities are of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. PTSD Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2017). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). VA will consider staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. At 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). A 50 percent rating is warranted for PTSD where 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. A 70 percent rating requires 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). A May 2010 VA psychiatric examination report includes a notation that the Veteran's claims file was reviewed. The Veteran reported that he was receiving current treatment for his PTSD at a VA facility, and that he was taking medication for such disorder. He stated that he had a close relationship with his two adult children. The Veteran indicated that he would visit his daughter and his granddaughter three times a month. He also related that he would visit his son and his three grandsons each weekend. The Veteran maintained that he was currently living with his sister and that they got along fairly well, with occasional mild conflicts. It was noted the Veteran indicated that he planned to move out soon because he wanted to be left alone. The Veteran also reported that he would visit his older sister once a year, and that he would receive visits from his older brother monthly, but that they had conflicts. He reported that he was friendly if he bumped into former co-workers, but that he did not initiate any contact. He related that he would visit friends. The examiner reported that the Veteran was neatly groomed and casually dressed, but that some urinary odor was noticed. It was noted that the Veteran left the examining room three times to reduce his anxiety level. The examiner indicated that the Veteran was cooperative and attentive and that his speech was unremarkable. The examiner stated that the Veteran's mood was dysphoric and that he was oriented to person, time, and place. It was noted that the Veteran's thought process and thought content were both unremarkable. The examiner indicated that the Veteran had no delusions and that, as to his judgement, he understood the outcome of his behavior. The examiner related that, as to his insight, the Veteran understood that he had a problem. It was noted that the Veteran had sleep impairment and that he would only sleep in two hour intervals and obtain four to five hours of sleep each night. The examiner stated that the Veteran did not have hallucinations and that there was no inappropriate behavior, but that he did have obsessive and ritualistic behavior. The examiner reported that the Veteran did not have panic attacks or homicidal thoughts. The examiner maintained that the Veteran did have suicidal thoughts and that he had fleeting thoughts no more than one time per month of wanting to die, but that he had no intention or plan. It was noted that the Veteran cited his love for his grandchildren as reasons to live. The examiner reported that the Veteran's impulse control was fair. The examiner stated that the Veteran had excessive road rage, but that he did not aggressively approach other drivers. The examiner indicated that the Veteran hit a security guard at a dog track because the guard was walking to close. It was noted that the Veteran was able to maintain his personal hygiene and that he had no problems with activities of daily living. The examiner related that the Veteran's recent and remote memory were normal. The examiner indicated that the Veteran had PTSD symptoms of persistent re-experiencing traumatic events; persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness; persistent symptoms of increased arousal; avoidance and numbing symptoms; and arousal symptoms. The examiner described the onset of those symptoms as chronic and discussed them in some detail. The diagnosis was PTSD, chronic. A GAF score of 54 was assigned. The examiner reported that the Veteran was unemployed, but not retired, and that he had been unemployed for one to two years. It was noted that the Veteran reported that he was dead weight because of his PTSD and that the company held onto him too long. The examiner also indicated that the Veteran reported that he was fired from his work in 2008 following reduced work productivity secondary to chronic sleep disturbances and irritability with co-workers. The examiner stated that the Veteran indicated that his unemployment was due to his PTSD and that he would become angry with himself due to working with "draft dodgers." He also stated that he had difficulty remaining calm due to derogatory comments made by his co-workers and that he would often fall asleep at work due to chronic sleep impairment. The examiner stated that a causal link between the Veteran's PTSD and his changes at work appeared plausible. The examiner indicated that the Veteran did not have total occupational and social impairment due to his PTSD signs and symptoms and that his PTSD signs and symptoms did not result in deficiencies in areas of judgment, thinking, family relations, work, mood, or school. It was also noted that there was not reduced reliability and productivity due to PTSD symptoms. The examiner maintained that there was an occasional decrease in work efficiency and there were intermittent periods of an inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning with routine behavior, self-care, and normal conversation. The examiner stated that while the Veteran reported a reduction in occupational efficiency, productivity, and reliability, he was not assessed to be totally occupationally impaired and that he was not assessed to be unemployable based solely on his service-connected mental health symptoms. The examiner maintained that the Veteran may be best suited to work independently doing less complex, routine type tasks. The examiner commented that the Veteran's present level of PTSD symptoms may lead to workplace difficulties. A more recent April 2016 VA psychiatric examination report includes a notation that the Veteran's claims file was reviewed. The Veteran reported that he was divorced and that he lived alone. He stated that he had an adult son and daughter, as well as a sister, who all lived nearby. He indicated that his current family relationships were stable and supportive. The Veteran related that he went to check on his sister about twice per week and that he enjoyed visiting with his four grandchildren. As to social and recreational activities, the Veteran reported that he mostly stayed by himself and that he liked being alone. He reported that he belonged the Disabled American Veterans and the American Legion, but that he did not go to meetings. He stated that he went to a lot of movies, which he felt seemed to relax him. The Veteran indicated that he had a few buddies at a Vet Center, but that he did not socialize with them outside of the Vet Center. He maintained that he had not been employed since the time of his May 2010 VA psychiatric examination and that he retired in 2008. The examiner reported that the Veteran was casually and seasonally dressed. It was noted that the Veteran evidenced a somewhat slow and awkward gait, although he was without assistive devices. The examiner stated that the Veteran was alert and oriented to person, place, time, and situation. The examiner related that the Veteran's affect was dysphoric, and that his affect and mood were congruent for contact and setting. It was noted that the Veteran's speech was spontaneous and that his amplitude, pace, and prosody were normal. The examiner reported that there was no evidence that the Veteran was responding to internal stimuli, and that there were no overt delusions evident. The examiner maintained that the Veteran denied having any recent or acute suicidal or homicidal ideation, intent, and plans, in either active or passive forms. It was noted that the Veteran's judgment was intact. The examiner indicated that the Veteran's general memory and concentration appeared intact. As to PTSD criteria pursuant to Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (DSM-5), the examiner indicated that the Veteran met some aspects of Criterion A, B, C, D, and E, and all aspects of Criterion F, G, and H. The examiner indicated that the Veteran's PTSD symptoms were a depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The diagnoses were PTSD, chronic, and an unspecified depressive disorder, secondary to PTSD. The examiner indicated that the Veteran had occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner indicated that it was beyond the scope of his expertise to determine whether the Veteran's service-connected disabilities rendered him unable to secure and maintain substantially gainful employment. Recent private and VA treatment reports show that the Veteran has continued to receive treatment for his service-connected PTSD on multiple occasions. At a March 2017 Board hearing, the Veteran testified testimony on appeal the Veteran has reported that he has symptoms including anger and impaired impulse control, difficulty adapting to stressful situations, and trouble with relationships. Viewing all the evidence, the Board finds that, throughout the appeal period, there is a reasonable basis for finding that the Veteran's PTSD is productive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to various symptoms supporting a higher rating of 70 percent. The Board observes that the May 2010 VA examination report notes that the Veteran had suicidal thoughts, as well as obsessive and ritualistic behavior. The examiner also reported that the Veteran had only fair impulse control, and that he had excessive road rage. The examiner further reported that the Veteran hit a security guard for walking to close to him. The examiner related a GAF score of 54, which suggests moderate symptoms (e.g., a flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The Board notes that the more recent April 2016 VA psychiatric examination report indicates that the Veteran had PTSD symptoms of a depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner indicated that the Veteran had occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Board observes that in statements and testimony on appeal the Veteran has reported that he has symptoms including anger and impaired impulse control, difficulty adapting to stressful situations, and trouble with relationships. The Board notes that the evidence indicates that the Veteran has had symptoms of suicidal ideation, obsessional rituals, difficulty in adapting to stressful circumstances, and problems with establishing and maintaining effective relationships, which are indicative of a 70 percent rating for his PTSD. In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports an initial 70 percent disability rating for the Veteran's PTSD. At the March 2017 hearing, the Veteran indicated that he was seeking a 70 percent rating for his PTSD and that a grant of a 70 percent rating would satisfy his appeal. Because the Veteran has limited his appeal to a 70 percent rating, and since the Board finds that the evidence supports such entitlement, there is no need to discuss whether the Veteran's PTSD. See AB, 6 Vet. App. at 35, 38. II. TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The provisions of 38 C.F.R. § 4.16(a) provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 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 circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (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). "A claim for TDIU presupposes that the rating for the condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Pursuant to 38 C.F.R. § 3.340(a), "total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." A determination whether a person is capable of engaging in a substantially gainful occupation must consider both the person's abilities and his employment history. Faust v. West, 13 Vet. App. 342, 355 (2000). The Veteran essentially contends that his service-connected disabilities prevent gainful employment, warranting a TDIU. He reports that his service-connected PTSD, diabetes mellitus, and diabetic peripheral neuropathy of the lower extremities prevent him from securing or following any substantially gainful occupation. His service-connected disabilities are PTSD (now rated 70 percent); diabetes mellitus (rated 20 percent); peripheral neuropathy of the right lower extremity (rated 20 percent); peripheral neuropathy of the left lower extremity (rated 20 percent); diabetic nephropathy (rated 0 percent); and erectile dysfunction (rated 0 percent). The Veteran clearly meets the minimum schedular requirements to be considered for a TDIU throughout the period of the appeal. The remaining question is whether the Veteran is unemployable due to his service-connected disabilities alone, taking into consideration his educational and occupational background. The record reveals that the Veteran completed four years of high school and that he has not worked full-time since January 2008. The Veteran has described his previous employment as warehouse work. The Board observes that there are multiple VA examination reports of record, as well as a March 2017 private vocational evaluation report from Vass Vocational Services, Inc., that include statements addressing the Veteran's employability. Based upon the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's service-connected disabilities in combination with each other have rendered him unable to secure or follow a substantially gainful occupation ORDER An increased rating of 70 percent is granted for PTSD, subject to the laws and regulations governing the payment of monetary awards. A TDIU is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs