Citation Nr: 1801587 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-22 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder. 2. Entitlement to total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. He earned the Combat Infantryman's Badge. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's PTSD with major depressive disorder manifested with social and occupational impairment with deficiencies in most areas, including work, school, family relations, judgment, thinking, or mood without total impairment. 2. The Veteran's service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. Throughout the rating period on appeal, the criteria for an evaluation in excess of 70 percent have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9440 (2017). 2. The criteria for an award of TDIU on a schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to provide claimants with notice and assistance in substantiating a claim. The VA provided the Veteran with a notice letter in December 2010. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. The Veteran was afforded a VA examination in February 2011 and August 2015. As such, the Board will proceed to the merits of the appeal. Increased Rating Applicable Law and Regulations Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Rating Criteria PTSD with Major Depressive Disorder Under the General Rating Formula, the criteria for 70 percent rating are: 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. The criteria for 100 percent rating are: 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. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, 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. See 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Indeed, "VA must engage in a holistic analysis" that assess the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Facts and Analysis The Veteran believes that manifestations of his PTSD are more severe than the currently assigned disability ratings contemplate. The Veteran was afforded a VA examination in February 2011. The Veteran reported that he never received mental health treatment including medication or participation in therapy. He related that he asked his seventeen year old daughter to move back in with her mother because he could not tolerate having anyone live with him due to his PTSD symptoms and preference for living alone. He continued to have difficulty relating with others and did not have close friends except his ex-fiancée. He stayed in touch with his family, but it was not a close relationship. He moved out to the country to live in seclusion about twelve years ago. He worked as a meat cutter, but had to quit due to back pain. He also reported that he was having difficulty at work due to his anger outbursts and due to having a hard time getting along with people. Upon examination, he made appropriate eye contact and was cooperative. With regard to suicidal ideations, he had occasional passive ideations of death, no plans or intent. He maintained personal hygiene and other activities of daily life. He was oriented to person, place, and time. His memory was adequate, he did not have obsessive or ritualistic behavior, and his flow of speech was within normal limits. He endorsed a depressed mood related to stressful situations. He reported that it was hard to control his frustration and anger outbursts. The examiner opined that the Veteran's unemployment was due to mental health problems. It was explained that he was successful in his trade and his unemployed status was due to his decision to quit due to his perceived difficulties with his back and relating to others. It was determined that that his PTSD resulted in deficiencies in most areas including work, school, family relations, judgment, thinking, and mood. However, his symptoms were not severe enough to interfere with occupational and social functioning. 2/9/2011 VA Examination. The Veteran was afforded another VA examination in August 2015. His diagnosis of PTSD with mild major depressive disorder was affirmed and the examiner stated that the course of his disorders was unchanged. The Veteran reported that he did not have contact with his three children, but did have a good friend that drove him to his appointment. He had dated two or three women since 2011, but was not currently dating anyone. He spoke on the phone with his brothers and sisters, but did not visit them. He denied hospitalization, therapy, or medication for mental health problems. He asserted that as long as he stayed in his home in a remote area he could manage his symptoms. He engaged in physical activity regularly and ate well to improve his mood. His symptoms included depressed mood, suspiciousness, chronic sleep impairment, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Upon observation, he was appropriately groomed, maintained appropriate eye contact, and was cooperative and pleasant. Speech was at a normal rate, rhythm and volume. His mood was euthymic and affect was congruent and appropriate. No abnormal psychomotor activity was noted. Thought processes appeared logical and goal directed. There were no delusions, obsessions, or compulsions noted I thought content. He appeared fully alert and oriented with no gross sensorial defects apparent. His memory, attention and concentration appeared intact and appropriate. He denied suicidal and homicidal ideation or intent. The examiner explained that his PTSD symptoms contributed to difficulty getting along with others. He experienced increased levels of stress and irritability when in the city and outside of his "zone" which consisted of being home alone in a remote area. Under other circumstances his symptoms worsened. It was determined that he presented with occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. 8/21/2015 C&P Examination. At his hearing in December 2016, the Veteran stated that he did not receive treatment for PTSD, including medication or therapy. He controlled his symptoms by staying in the country where it was secluded. He stated that he walked his dog and rode his horse as his personal form of therapy. He slept about three hours at night and couple more during the day. He did not really speak with his siblings or children. He informed his children that he did not want to burden them with his problems. When he did talk to them, he ended up yelling and screaming over the phone. He worked as a meat cutter for about thirty to thirty-five years until about twelve years ago. He said that his PTSD symptoms were the main reason he could not work. He had trouble getting along with others. 12/8/2016 Hearing Transcript. Medical treatment records during the relevant period are silent for treatment of the Veteran's PTSD and this supports his previous statements that he does not receive medication or therapeutic treatment. The Board has considered the entirety of the evidence and finds that the Veteran's disability picture is more nearly approximated by the current 70 percent rating. Specifically, the evidence showed that the Veteran's disability picture was more nearly approximated by one of deficiencies in most areas including work, family, judgment, thinking, and mood, rather than total occupational and social impairment. For example, upon VA examination in 2015, his symptoms have manifested in depressed mood, suspiciousness, chronic sleep impairment, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The Board has also considered the Veteran's lay statements with regard to his claim and finds that his statements regarding the symptoms he experiences are competent evidence because this requires only personal knowledge. See 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board also finds the Veteran to be credible. However, the Veteran's statements are outweighed by other evidence of record, to include that as observed and recorded by competent mental health professional at the two VA examinations noted above. While a 70 percent evaluation is warranted, a rating in excess of this is not, as total impairment has not been shown. The Veteran is estranged from his siblings and children, but acknowledges having at least one close friend. Additionally, while he has indicated he is not close to others socially, he is able to interact with others on a brief and superficial basis. While the symptoms listed in the 100 percent rating category need not be demonstrated, symptoms on par or more nearly approximating with that level of severity do. The evidence here does not suggest symptoms as severe as those contemplated by the 100 percent criteria, such as grossly inappropriate behavior, persistent danger of hurting himself or others, persistent delusions or hallucinations, or gross impairment in thought processes. Rather, the Veteran has been oriented and thought processes and judgment have been normal throughout the appeal. He has been independent in activities of daily living and self-care and is able to satisfactorily attend to his grooming and hygiene. Moreover, he has been able to manage his symptoms without therapy or medication. Indeed, the Veteran has found that living in an isolated location is a therapy that works best for him. For the above reasons, the Board finds that the Veteran's PTSD warrants assignment of a 70 percent rating, but not higher, throughout the rating period on appeal. 38 C.F.R. §§ 3.400, 4.1, 4.10, 4.130, DC 9440. TDIU A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. In this case, the Veteran is service-connected for PTSD with major depressive disorder, rated at 70 percent disabling; and diabetes mellitus, rated at 20 percent disabling. His combined rating is 70 percent from July 30, 2010 and 80 percent from April 11, 2014. See 38 C.F.R. § 4.25. Therefore, he meets the schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). Even so, it must still be found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2014). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran contends that his PTSD symptoms are the main reason that he cannot work. Hearing Transcript, at 21. In August 2015, the Veteran was diagnosed with diabetes mellitus at a VA examination. The examiner opined that the Veterans diabetes mellitus did not have a functional impact on his ability to work. With regards to PTSD, the examiner noted that his symptoms contributed to difficulty getting along with others. Further, he experienced increased levels of stress and irritability when he was in the city rather than at his home in a remote area. Under other circumstances, his PTSD worsened. 8/31/2015 C&P Examination, at 6; 8/21/2015 C&P Examination. The evidence shows that the Veteran worked as a meat cutter for thirty to thirty-five years. He lasted worked in May 2005. At his hearing, he stated that his symptoms had increased at that time. His friend was his employer and gave him an opportunity to work with only one person versus the normal ten to fifteen people so that he would not have to fire him. However, he found that he could not cope with his symptoms and decided to quit and move to a remote area. 12/8/2016 Hearing Transcript, at 16-19; 11/18/2010 VA 21-8940. In light of all of these considerations, the Board finds that the criteria for entitlement to TDIU. The Board has evaluated the Veteran's claims regarding his ability to maintain employment, mainly in light of his PTSD, and his VA examinations. The evidence reflects that the Veteran's manifestations of PTSD result in his inability to handle stress and control his temper when he leaves his secluded home. Based on this, the record supports entitlement to TDIU. ORDER Rating in excess of 70 percent for PTSD with major depressive disorder is denied. Compensation based on TDIU is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs