Citation Nr: 1800606 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 15-11 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) with major depression and alcohol abuse. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 31, 2015. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Bush, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from May 1966 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In November 2016, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. During the period on appeal, the Veteran's acquired psychiatric disorder to include PTSD with major depression and alcohol abuse has most closely approximated social and occupational impairment with deficiencies in most areas. 2. The Veteran became unable to secure or follow substantially gainful employment on May 13, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for the Veteran's service-connected acquired psychiatric disorder to include PTSD with major depression and alcohol abuse have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. From May 13, 2012, the criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board finds that the notice requirements have been satisfied by letters informing the Veteran of what evidence was required to substantiate his claims. With regard to VA's duty to assist the Veteran, the claims file contains service treatment records, post-service VA medical evidence, private medical evidence, and hearing testimony in support of the claim. In addition, the Veteran was provided VA examinations. Neither the Veteran nor his representative has identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA's duties to notify and assist him with the claim have been satisfied. Increased Rating for PTSD When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a) (2017). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b) (2017). The Veteran is currently rated at 70 percent for an acquired psychiatric disorder to include PTSD with major depression and alcohol abuse under Diagnostic Code (DC) 9411. Under DC 9411, 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 work-like 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; 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. See DC 9411. The Veteran's acquired psychiatric disorder to include PTSD with major depression and alcohol abuse has manifested in symptoms such as depression, anxiety, anger, irritability, mild memory loss or impairment, panic attacks, and occasional suicidal ideation, ultimately resulting in occupational and social impairment with deficiencies in most areas. The Board finds that these manifestations most nearly approximate the criteria for a 70 percent rating. The Board finds that an increased 100 percent rating is not warranted for the period on appeal as the Veteran's combined symptoms do not more nearly approximate the 100 percent criteria. The Veteran's condition does not manifest in total occupational and social impairment. The Board notes that the Veteran has had problems with maintaining employment. However, notably, the Veteran does not have symptoms such 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 (the Veteran has been able to maintain independence, including hygiene, throughout the appeal process), disorientation to time or place (he has consistently been fully oriented on evaluation), memory loss for names of close relatives, own occupation, or own name. The record reflects that he has been married for over forty years and has many children and grandchildren with whom he is able to maintain relationships. He also worked as a pastor for many years and throughout the appeal period continued to attend church and visit the sick and elderly in his community. Thus, he is not totally socially impaired. Therefore, the Board finds that the Veteran's disability picture does not more nearly approximate total occupational and social impairment. Entitlement to TDIU prior to March 31, 2015 When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340 (2017). If the schedular rating is less than total, as here, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16 (2017). Total disability ratings for compensation 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. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a) (2017). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a) (2017). Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16 (b) (2017). Notably, this inquiry must focus on whether, in light of his service-connected disorders, the Veteran 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). A total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16 (a) (2017). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one. See 38 C.F.R. § 4.16 (a)(2) (2017). From August 6, 2004, the Veteran has been service-connected for an acquired psychiatric disorder, to include PTSD with major depression and alcohol use at 70 percent, thereby meeting the schedular criteria for TDIU since that time. The combined evaluation for his service-connected disabilities is currently 80 percent. The Veteran was awarded TDIU in a July 2016 rating decision with an effective date of March 31, 2015. The Veteran maintains that he was work as a result of his service-connected acquired psychiatric disorder prior to this date. Therefore, the issue before the Board is when the Veteran became too disabled to secure or follow a substantially gainful occupation. On his October 2014 formal claim for TDIU, the Veteran indicated that he last worked full-time in February 2012 as the pastor of W.B. Church. Following that, he listed part-time employment at Chick-Fil-A and employment at A.G.P. Church. He noted that his disability first began to affect his employment in September 2004 and that he became too disabled to work in September 2012. See VA Form 21-8940. The record supports the Veteran's claims that his acquired psychiatric disorder began to affect his employment in 2004. A letter from a former colleague at W.B. Church confirmed that there was a marked change in his personality in 2004 after he saw a movie which triggered painful and traumatic memories of his time in the Navy. His former colleague detailed that the Veteran began to show signs of depression, disengagement during meetings, trouble focusing on sermon delivery, and some obsessional behavior. See February 2012 Letter from D.B. A letter from a VA clinical social worker corroborated these observations. She noted that he had been treated by VA since August 2004 after seeing the movie and had presented with severe depression and suicidal ideation. Since then, he participated in multiple treatment programs at VA. See September 2012 Letter from VA Clinical Social Worker. While the Veteran was noted as having difficulties with his acquired psychiatric disorder in 2004, he continued to as pastor at W.B. Church. However, he reported increasing difficulties with his work performance, including difficulty communicating and obsessive behavior. His pay was reduced. See Hearing Transcript. In May 2012, the Veteran was referred to VA for in-patient treatment for his acquired psychiatric disorder by his VA therapist. He entered treatment on May 13, 2012. At the time of entry, he suffered from re-experiencing, hypervigilance, anger, avoidance, numbing, depression, attentional deficits, and cognitive deficits, including tangential thoughts and problems with memory. He was discharged at the end of June 2012. See June 2012 Discharge Summary. During this time, W.B. Church granted him a sabbatical with pay; however when he exited treatment, he was told that he was on permanent sabbatical, meaning he was no longer functioning in the capacity of pastor of the church. The Veteran interpreted this as the church's attempt to phase him out completely and decided to start a new church, A.G.P. In January 2013, W.B. Church decided to let the Veteran go. He was given an 18-month severance package with the stipulation that he not take church members from W.B. Church to his new church. However, that severance was ended in March 2013; a mere two months after the Veteran left W.B. Church. VA received a letter in support of the Veteran's claim from a person who has known the Veteran for over thirty years and served as a trustee in both of the churches he founded, W.B. Church and A.G.P. The trustee stated that the Veteran had served faithfully and effectively until about 2004, when he began to demonstrate a decline in ability to focus, lead meetings, and preach to the level of excellence to which his congregants were accustomed. The trustee noted that over the past couple of years the Veteran required more extensive VA treatment and showed an inability to concentrate and make important decisions, became withdrawn, began to forget names, missed meetings and has gotten up and left without explanation. He also exhibited obsessional behavior. He further indicated that the Veteran was grossly impaired in his ability to lead the congregation and was no longer employed by A.G.P. See March 2015 Trustee Letter. Letters from VA treatment providers indicate that the Veteran has experienced a decline in his memory and ability to concentrate and deal with situations in life and work and has tried for years to work productively and diligently but has not been successful due to erratic behavior, distractions, anxiety, and the inability to deal with the stress of full-time work. See April and May 2015 VA Treatment Providers' Letters. As noted above, entitlement to TDIU is based on the ability to secure and follow substantially gainful employment, with a focus on whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. Here, the record reflects that the Veteran was incapable of performing the mental acts required by employment beginning on or around May 13, 2012 when he entered seven week in-patient treatment at VA. At that time, he was experiencing symptoms such as hypervigilance, anger, depression, and cognitive deficits that would make it difficult to engage in any type of employment, including that for which he was trained to perform, that of a pastor. Information from his former colleagues and medical professionals echo that these symptoms contribute to the Veteran's past and current difficulties with work. While W.B. Church allowed the Veteran to be on sabbatical during this time and kept the Veteran on permanent sabbatical following his discharge until they let him go in January 2013, sabbatical indicates that he was not actually working in the capacity of a pastor at the church. Following his work at W.B. Church, he was marginally employed at Chick-Fil-A and A.G.P., never returning to full-time gainful employment. The above evidence reflects that the Veteran's service connected disabilities rendered him unable to secure or follow substantially gainful employment from May 13, 2012. Moreover, while the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner," Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Board's finding is consistent with the opinions of the Veteran's VA treatment providers that he has been precluded from successfully securing and following gainful employment due to his acquired psychiatric disability. Further, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). The Veteran has provided his own competent and credible testimony regarding the trajectory of the effect of his service-connected acquired psychiatric disorder on his employment history and has supported his averments with lay statements with former colleagues. To the extent that the Veteran has indicated he was rendered unemployable by his service-connected acquired psychiatric disorder prior to March 31, 2015, the Board finds the above evidence confirms his statements. For the foregoing reasons, the Board concludes that the Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment prior to March 31, 2015. ORDER Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) with major depression and alcohol abuse is denied. Entitlement to TDIU from May 13, 2012 is granted. ____________________________________________ Bradley W. Hennings Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs