Citation Nr: 1800591 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-09 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1988 to May 1992. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from July 2012 and January 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A hearing was not requested. In July 2014, the RO granted service connection for right testicular removal at an initial rating of 0 percent. The Veteran filed a notice of disagreement and a statement of the case issued in January 2014. In March 2014, the Veteran filed a VA Form 9 that only listed the claim of entitlement to a rating in excess of 50 percent for PTSD and entitlement to TDIU. These were also the only claims listed in the VA Form 9. The Board does not have jurisdiction over the claim of entitlement to a compensable rating for right testicular removal. The Veteran has been granted special monthly compensation based on loss of use of a creative organ. FINDINGS OF FACT 1. The Veteran's PTSD is characterized by occupational and social impairment, with deficiencies in most areas, such as work, family relations, or mood, due to such symptoms as 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, but is not characterized by gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. 2. The Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no greater, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017). 2. From July 1, 2013, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating for PTSD 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 are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a July 2012 decision, the RO granted service connection for posttraumatic stress disorder (PTSD) at an initial rating of 50 percent under Diagnostic Code 9411 from May 27, 2011, the date that the Veteran filed his claim. The Veteran is appealing that decision. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, a 50 percent rating is appropriate 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is provided 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. Id. A 100 percent rating is provided 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 of the veteran 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 associated with the rating criteria are not intended to constitute exhaustive lists, 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). A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration that result in the levels of occupational and social impairment provided. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). To adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the Veteran's GAF scores and the enumerated factors listed in 38 C.F.R. § 4.130. Mauerhan, 16 Vet. App. at 436. As this claim was certified to the Board after August 4, 2014, DSM V is applicable to the claim. Before undertaking analysis, the Board notes that the Veteran is service-connected for PTSD, but not for other mental disorders. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181 (1998). The evidence supports a rating of 70 percent based on occupational and social impairment, with deficiencies in most areas, such as work, family relations, or mood, due to such symptoms as 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. First of all, there is evidence of impaired impulse control. A December 2016 private disability evaluation notes "unstable mood." A July 2013 VA medical record describes how the "Veteran is considered to be at elevated risk over the long term for impulsive aggression toward [his] girlfriend" and "will refrain from face-to-face contact with girlfriend." In a May 2013 VA medical record, the Veteran relates that the police were called following an angry outburst towards his girlfriend, and that "this behavior pattern is typical of many of his interactions." Consistent with this, an April 2012 VA psychological examination reports "[i]rritability or outbursts of anger." This evidence supports a finding impaired impulse control that is consistent with a rating of 70 percent. There is also evidence of difficulty in adapting to stressful circumstances. A December 2016 private disability evaluation noted "poor frustration tolerance." A March 2014 private medical opinion states that the Veteran "is currently generally unable to deal with the usual stresses of competitive work." The Veteran's January 2014 SSA application indicates that he deals very poorly with stress and changes to routine. Consistent with this, the April 2012 VA psychological examination previously revealed "reportedly poor coping skills." This evidence supports a finding of difficulty in adapting to stressful circumstances that further supports a rating of 70 percent. There is substantial evidence of the inability to establish and maintain effective relationships. This is a specific finding in the April 2012 VA psychological examination, which is further supported by other evidence of record. According to the December 2016 private disability evaluation, the Veteran denies "having or wanting any friends or contact with his siblings," reports "pervasive mistrust of others that limit[s] his ability to cultivate relationships," and experiences "significant deficits in emotional regulation and interpersonal functioning." Consistent with this, a March 2014 private medical opinion states: "He is currently unable to accept instructions from supervisors and deal appropriately with coworkers and the public on a consistent basis." A January 2014 SSA application reveals that the Veteran becomes aggressive and angry when dealing with co-workers, has very little family support, and has a hard time getting along with others. According to an August 2013 VA psychological examination, the Veteran is "sullen and withdrawn and has poor interpersonal skills. He has greater difficulty working with others as well as working in confined spaces." Furthermore, private medical records dated from December 2012 through May 2013 consistent bear out that the Veteran is unable to maintain personal relationships and that his PTSD symptoms negatively impact his ability to work. Taken together, this evidence is consistent with a finding of inability to establish and maintain effective relationships that further supports a rating of 70 percent. There is additional evidence of occupational and social impairment. The December 2016 private disability evaluation notes "significant deficits in emotional regulation and interpersonal functioning" and "substantial internal distress." According to a March 2014 private medical opinion, the Veteran is indicated as being "currently unable to consistently perform work activities of any kind in a timely appropriate manner with or without additional supervision." The April 2012 VA psychological examination indicates that the Veteran's PTSD symptoms "cause clinically significant distress or impairment in social, occupational, or other important areas of functioning." This evidence, along with findings of impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, strongly supports a rating of 70 percent for the Veteran's PTSD. The Veteran's symptoms fluctuate, such that there are records weighing against a finding of total occupational and social impairment with deficiencies in most areas. See, e.g., July 2013 VA medical records. Additionally, the Veteran is able to live with his sister, is regularly attended at the VA by a friend, and consistently denies suicidal ideation. But as noted in a July 2013 lay statement from the Veteran's then-girlfriend, his mood fluctuates wildly and is regularly punctuated by periods of deep depression and anger. Taken together, the weight of the evidence is most consistent with total occupational and social impairment with deficiencies in most areas so as to support a rating of 70 percent. The evidence does not support a rating of 100 percent based on total occupational and social impairment. Private medical records dated from October 2012 through May 2013 consistent bear out that the Veteran is oriented to time and place and has normal memory. In these same records he consistently denies visual and auditory hallucinations. See also December 2016 private disability evaluation; August 2013 VA psychological examination. In private and VA treatment records the Veteran also regularly denies homicidal ideations, which weighs against a finding that he is a persistent danger to hurting others. See, e.g., December 2016 private disability evaluation; December 2012 VA medical record. This evidence strongly weighs against a rating of 100 percent based on total and occupational impairment. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. II. TDIU The Veteran is claiming entitlement to individual unemployability due to service-connected disability (TDIU). VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not the same as substantially gainful employment. 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, 529 (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. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). From May 27, 2011, to May 9, 2013, the Veteran's service-connected disabilities are PTSD at 70 percent, right knee degenerative joint disease at 10 percent, status post right testicle removal at 0 percent, erectile dysfunction associated with status post right testicle removal at 0 percent, and right knee scars at 0 percent with a combined rating of 70 percent. For this time period, the Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). The Veteran also meets the schedular criteria for TDIU from May 10, 2013. From that date, the Veteran's service-connected disabilities are PTSD at 70 percent, right knee degenerative joint disease at 30 percent, status post right testicle removal at 0 percent, erectile dysfunction associated with status post right testicle removal at 0 percent, and right knee scars at 0 percent with a combined rating of 80 percent. For this time period, the Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies to circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred one year prior to the claim, the increase is effective as of the date the increase is "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. 5110(b)(2); 38 C.F.R. § 3.400(o); Dalton, 21 Vet. App. at 31-32. The Veteran filed a claim for TDIU on July 8, 2013. In light of the Dalton and the provisions cited above, the Board will consider evidence within the one-year period preceding the date of receipt of a claim for TDIU. However, the evidence indicates that from July 1, 2013, the Veteran is unable to secure substantially gainful employment. The evidence consistently bears out that the Veteran was a full-time corrections officer prior to July 2013. See January 2016 SSA record; June 2013 TDIU application. According to a March 2014 Virginia disability record, the Veteran "stopped working in June 2013 secondary to his health problems" and "has not sought employment since that time." See also June 2013 TDIU application. While the Veteran did part-time work from August 2012 to August 2013, this does not constitute substantially gainful employment, in that he was only paid $5,083 over the course of these 13 months. See September 2013 payroll summary. Similarly, in 2015 and 2016 the Veteran volunteered for Habitat for Humanity and worked part-time in landscaping. See Legacy Content Manager Documents. This work is also not sufficient to qualify as substantially gainful employment, in that the volunteer work was unpaid and the landscaping work was part-time and was short-lived. The evidence supports a finding that the Veteran was unable to maintain substantially gainful employment from July 1, 2013. The evidence also indicates that this unemployment is due entirely to service-connected disabilities. An August 2013 VA psychology examination indicates that the Veteran has not been working due to mental health issues. A March 2014 private medical opinion states that because of daily "spontaneous panic attacks he is currently unable to consistently perform work activities of any kind in a timely manner with or without additional supervision." He is also "currently unable to accept instructions from supervisors and deal with coworkers and the public on a consistent basis" and "is currently generally unable to deal with the usual stresses of competitive work." According to the December 2016 private disability evaluation, the Veteran is "not currently able to return to work in any capacity" due to psychological symptoms and daily pain in his right knee. Taken together, the weight of this medical evidence supports a finding that the Veteran's inability to pursue substantially gainful employment is solely the result of service-connected disabilities. Consistent with this, a March 2017 SSA disability determination lists "Anxiety Disorders" as the Veteran's "Primary Diagnosis." As the weight of the evidence supports a finding that the Veteran's service-connected disabilities alone preclude substantially gainful employment, the Veteran is entitled to prevail on his claim of entitlement to TDIU from July 1, 2013. ORDER Entitlement to an initial rating of 70 percent, but no greater, for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. From July 1, 2013, entitlement to a TDIU is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs