Citation Nr: 1800668 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 15-10 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with secondary depression. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 until November 1971. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before the undersigned Veterans Law Judge in September 2016. A transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. During the pendency of this appeal, the Veteran's PTSD manifests with depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and nightmares. 2. With resolution of the doubt in the Veteran's favor, the Veteran's PTSD is so severe that it has precluded him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. During the pendency of this appeal, the criteria for a rating in excess of 70 percent rating for PTSD are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.130, DC 9411 (2017). 2. The criteria for the assignment of a TDIU are met from August 1, 2011. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating - PTSD Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§3.321 (a), 4.1 (2016). Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4 (2016). If two disability evaluations are potentially applicable, 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. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's PTSD is currently rated as 70 percent disabling. He is seeking a higher rating for the entire appeal period. Under Diagnostic Code 9411, a 50 percent evaluation requires 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. Id. A 70 percent rating is prescribed when there is evidence of 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Regarding occupational impairment, in February 2014, a VA examiner found the Veteran had an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. He reported that he retired from working as a dry wall finisher. He had a depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and nightmares. In September 2016, the Veteran reported that he did not feel that he was able to work full time due to his disability. With respect to social impairment, in February 2014, the Veteran's wife had died suddenly three months before the examination. Although he saw death in service, he said that watching his wife of 43 years die was very difficult and triggered memories of Vietnam. His children checked on him but his family life changed since his wife passed away. The Veteran admitted that he was not as engaged emotionally. The examiner found that he had logical and linear thoughts. He denied thoughts of suicide or self-harm. In August 2014, the Veteran stated that his wife stopped him from committing suicide a few years earlier, which was prior to the appeal period. In September 2016, the Veteran reported that he did not socialize with his neighbors and that he stayed home and watched TV. He had been more depressed since his wife died. The Veteran continued to see his three children and grandchildren. In October 2016, he stated that he had limited contact with his family and had a few friends. In April 2017, he stated that he felt increasingly depressed due to isolation, lack of motivation, and lowered self-esteem. After review of the evidence, the Board finds that a 70 percent rating is the appropriate rating for the Veteran's PTSD for the entire appeal period. The Veteran's PTSD manifested with occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as, depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and nightmares. The Board finds the rest of the evidence consistent with these findings. The next higher, 100 percent rating, is not demonstrated by the evidence of record, as the Veteran's PTSD is not manifested total occupational and social impairment. 8 C.F.R. § 4.130, DC 9411. Although the Veteran is totally occupationally impaired, this is being addressed via TDIU and is merely another avenue to a total rating, which is being granted. Moreover, he reported that he still had a relationship with his adult children and grandchildren and had a few friends. In addition, his thoughts were logical and linear and he denied suicidal ideation. Thus, total social impairment is not shown. In sum, the Board finds that his PTSD causes impairment with deficiencies in most areas during the entire appeal period. II. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). The Veteran must meet specific requirements before consideration of whether the evidence demonstrates unemployability. If the Veteran has only one service-connected disability, it must be rated at 60 percent or more. If the Veteran has two or more service-connected disabilities, at least one must be rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. Id. Here, he meets the schedular requirements for a TDIU starting from February 8, 2010, when he was granted service connection for PTSD, rated as 70 percent disabling. See 38 C.F.R. §§ 4.25, 4.26. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A review of the evidence indicates the Veteran stopped working in August 2011 as a dry wall finisher. He has not reported any substantial gainful employment since that time. His work history shows continued employment as a dry wall finisher for 19 years and a high school education. There is no indication that he has any additional training or education that is transferable to a different position. The Veteran reported that he was unable seek or maintain gainful employment due to his service-connected disabilities. In assessing the functional impairment of the Veteran's PTSD on his employability, the February 2014 VA examiner rated him as fair in understanding and memory, sustained concentration and persistence, social interaction, and adaption. The Board finds the rest of the evidence consistent with these findings. Based on this evidence, the Board finds a TDIU is warranted from August 1, 2011. The probative evidence indicates that the service-connected PTSD precluded gainful employment, consistent with the Veteran's education, occupational experience, and training. Accordingly, a TDIU is granted from August 1, 2011. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (West 2012). Here, the Board finds that the aforementioned evidence discussed in the assignment of a 70 percent rating is sufficient to place the relevant evidence, at a minimum, in a state of equipoise as to whether the Veteran's service-connected disabilities preclude employment. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of TDIU from August 1, 2011 is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER A rating in excess of 70 percent for PTSD with secondary depression is denied. A TDIU rating since August 1, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs