Citation Nr: 1802332 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-37 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent prior to February 13, 2017, for posttraumatic stress disorder (PTSD) and an evaluation in excess of 70 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1960 to December 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 50 percent evaluation for PTSD. In a March 2017 rating decision, the Veteran was granted a 70 percent evaluation for PTSD, effective February 13, 2017. In August 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A transcript of the proceeding is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas; total occupational and social impairment is not shown. 2. The Veteran is unable to maintain substantially gainful employment by reason of his service-connected PTSD for the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for the assignment of an evaluation of 70 percent, but no higher, for PTSD for the entire appeal period are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a TDIU are met for the entire appeal period. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As such, the case is ready to be decided on its merits. I. Disability Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). 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 any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's claim for an increased evaluation for PTSD was received in August 2013. The Veteran's PTSD is evaluated as 50 percent disabling prior to February 13, 2017, and 70 percent disabling thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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, warrants a 50 percent rating. Id. Under these criteria, the next higher rating of 70 percent rating is warranted where the disorder is manifested by 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 that is 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, an inability to establish and maintain effective relationships. Id. The highest possible rating of 100 percent rating requires 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; and, memory loss of names of close relatives, own occupation or own name. Id. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as mere examples of the type and degree of symptoms, or their effects, which would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to symptoms provided in that Diagnostic Code. Id. at 443. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-V). Id. If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to what would be caused by the symptoms listed in a particular diagnostic code, the appropriate, equivalent rating will be assigned. Id. Further, when evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Here, in March 2015, Dr. M.R., a VA psychiatrist, wrote that the Veteran's medical conditions exacerbated his PTSD. His PTSD sleep disturbance had increased and he had a low anger threshold. His hearing acuity made it difficult for him to participate in group therapy. Dr. M.R. concluded that the Veteran was unemployable. In August 2016, Dr. M.R., a VA psychiatrist, wrote that the Veteran's PTSD was severely straining his marriage and rendered him unable to pursue gainful employment. He wrote that the Veteran's PTSD symptoms had worsened. In February 2017, the Veteran was afforded a VA examination in connection with his claim for an increased evaluation for his PTSD. The VA examiner confirmed the Veteran's diagnosis of PTSD. The Veteran reported that things were the same since his last VA examination. He indicated that his relationships with his immediate family members were strained and he only had one friend. He spent most of his time watching television alone. The Veteran had been unemployed for 15 years. His PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and disorientation to time or place. The VA examiner concluded that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. In August 2017, the Veteran testified that he had anxiety attacks a couple of times a day between 2 and 3 days a week. He also endorsed depression, anxiety, and difficulty remembering names. The Veteran attended monthly breakfast with members from his therapy group. The Board finds that the weight of the evidence shows the Veteran is entitled to a 70 percent evaluation for his PTSD for the entire appeal period. His PTSD is productive of occupational and social impairment with deficiencies in most areas. The February 2017 VA examiner specifically found that the Veteran's PTSD was productive of productive of occupational and social impairment with deficiencies in most areas. In March 2015 and August 2016, Dr. M.R. wrote that the severity of the Veteran's PTSD rendered him unable to maintain substantially gainful employment. This evidence warrants a higher 70 percent disability rating during the appeal period, as the evidence demonstrates occupational and social impairment with deficiencies in most areas. 38 C.F.R. § 4.130, Diagnostic Code 9411. However, the evidence is against a 100 disability rating for PTSD for the entire appeal period. Throughout the appeal period, he has maintained relationships with his family and a friend. He has also attended a monthly breakfast meeting with members of his therapy group. The Veteran has been married for the entire appeal period. This evidence does not document total social impairment. During the appeal period, the Veteran's PTSD was also not manifested by evidence of 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; and, memory loss of names of close relatives, own occupation or own name - enumerated symptoms for the 100 percent rating. Id. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his PTSD, as the conclusions of the VA examiner were based upon the Veteran's lay statements, a review of the record, clinical findings, and her medical expertise. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A 70 percent disability rating, but no higher, is granted for the Veteran's PTSD for the entire appeal period. 38 C.F.R. § 4.130, Diagnostic Code 9411. II. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of the service- connected disabilities. 38 C.F.R. § 4.16(b). 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 education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As the Board has granted a 70 percent evaluation for PTSD for the entire appeal period, the Veteran meets the criteria for a schedular TDIU rating per 38 C.F.R. § 4.16(a). The Veteran is also service-connected for a laceration scar near the right eye, which is assigned a 10 percent disability rating. The weight of the evidence demonstrates that the Veteran's service-connected PTSD precludes him from obtaining and maintaining substantially gainful employment. The February 2017 VA examiner specifically found that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas. In March 2015 and August 2016, Dr. M.R. wrote that the severity of the Veteran's PTSD rendered him unable to maintain substantially gainful employment. There is no contrary evidence of record. In sum, the preponderance of the evidence shows that the Veteran is unable to secure and follow substantially gainful employment by reason of his service-connected PTSD. See 38 C.F.R. § 4.16(a). As a consequence, entitlement to a TDIU is granted. ORDER A 70 percent evaluation for PTSD, but no higher, is granted for the entire appeal period. Entitlement to a TDIU is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs