Citation Nr: 1803220 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-32 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating higher than 60 percent for a heart disability, diagnosed as coronary artery disease (CAD). 2. Entitlement to a disability rating higher than 70 percent for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), prior to February 1, 2015, and higher than 50 percent beginning February 1, 2015. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the Veteran's psychiatric claim broadly, as reflected on the title page. In the September 2011 rating decision on appeal, the RO continued its previously-assigned 10 percent rating for the Veteran's CAD. During the pendency of the appeal, in an October 2013 rating decision, the RO increased the rating for the Veteran's CAD to 60 percent during the entire period of the claim. Because the RO did not assign the maximum allowable rating for the condition, the issue of entitlement to an increased rating for CAD remains in appellate status. In November 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) at his local RO (Travel Board hearing). A transcript of the hearing is of record. The record shows the Veteran has raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Accordingly, the Board takes jurisdiction of such issue as part and parcel with the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2015). FINDINGS OF FACT 1. Prior to promulgation of a decision on his appeal, the Veteran withdrew his appeal with respect to the issue of entitlement to an increased rating for a heart disability. 2. Throughout the period of the claim, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; it has not been productive of total occupational and social impairment. 3. Throughout the period of the claim, the Veteran has met the threshold percentage requirements and the evidence is at least in equipoise as to whether he has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran as to the issue of entitlement to an increased rating for a heart disability have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2015); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. For the period prior to February 1, 2015, the criteria for a rating higher than 70 percent for PTSD were not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2015); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 3. For the period beginning February 1, 2015, the criteria for a 70 percent rating, but not higher, for PTSD, were met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2015); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2017). 4. Throughout the period of the claim, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased rating for heart disability The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 U.S.C.A. § 7105 (West 2015); 38 C.F.R. §§ 20.202, 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. The Veteran perfected an appeal as to his claim for an increased rating for a heart disability. However, at his November 2017 hearing before the undersigned, the Veteran's representative unequivocally asserted the Veteran wished to withdraw the claim. There is no further correspondence in the record from the Veteran or his representative regarding this issue. As such, the Board finds there remains no allegation of error of fact or law for appellate consideration with regard to this issue. Thus, the Board no longer has jurisdiction to review the appeal regarding this issue, and the claim is dismissed. Increased rating for PTSD General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 3.321(a), 4.1 (2017). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. Under this formula, in pertinent part, a 50 percent rating is warranted for 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. 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 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); and 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 process 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 for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9411 (2017). The symptoms considered in determining the level of impairment under the General Rating Formula for Mental Disorders are not restricted to the symptoms provided in the diagnostic code. Instead, VA must 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: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-V). Mauerhan v. Principi, 16 Vet. App. 436 (2002). By way of background, the Veteran was initially granted service connection for PTSD in a May 1999 rating decision, and an initial 30 percent rating was assigned. Following the Veteran's filing of a claim for an increased rating, the rating was increased to 70 percent in a March 2002 rating decision, effective October 15, 2001. In a June 2010 statement, the Veteran asserted he had been an account manager for a security company, but that he had been fired because of his PTSD, and had not been able to work with others since. The RO interpreted this statement as both a claim for entitlement to a TDIU and a claim for an increased rating for PTSD. Accordingly, the Veteran was afforded a VA examination in January 2011. The examiner noted the Veteran had been married two times, with the first marriage lasting thirty years and resulting in two children, but ending in divorce, and the second marriage lasting nine years. The Veteran reported he had close relations with his two children. He reported he liked to go to the Veterans of Foreign Wars (VFW) Post for dinner on occasion. He also reported walking his dog daily and playing computer games. It was noted the Veteran was last employed as a store manager at a 7-11 in 1998, after having retired from the U.S. Army in 1990 after twenty-three years of service. Prior to his work at 7-11, the Veteran reported having been fired from several jobs because of differences of opinion as to how to run the businesses he was employed by. He reported this was due to his failure to change for the civilian world after discharge. Consequently, he retired in 1998 after being unable to find suitable employment. The examiner noted the Veteran had a history of heavy alcohol use in the past, and that although he quit for seven years, he had restarted drinking in August 2009. The Veteran's symptoms were noted to include irritability and outbursts of anger, difficulty concentrating, mild immediate memory impairment, and intrusive memories of his experiences in Vietnam. With regard to the Veteran's employment history, the examiner noted the causes of his retirement were his age and duration of work as well as a failure to adjust to the civilian world. However, the examiner concluded the Veteran had no psychiatric barriers that would preclude occupational functioning. In a June 2011 statement, the Veteran described a series of terminations from employment since his discharge from service which he attributed to his PTSD. Specifically, he recalled being fired from five separate jobs and being kicked out of a university due to physical and/or verbal fights with others. In an accompanying statement, the Veteran's wife explained the Veteran had been unable to keep a job because he got in a lot of disagreements with people due to his PTSD. The Veteran was afforded an additional VA examination in October 2014. The Veteran reported his wife had left him approximately five weeks earlier, at least in part due to her fear of him becoming violent, including because of his punching and choking her during his sleep in the past. The Veteran reported he had some contact with his two children from his previous marriage, and spent most of his time watching television and playing computer games, caring for his pets, and visiting American Veterans (AMVETS) for social interaction. Although he reported he had begun to distance himself from others due to trust issues, he also reported he had one close friend he spoke to a couple times a week, and that he visited AMVETS four or five times per week to have beers with others. The Veteran reported he had not been able to obtain employment since 1998 because of a poor employment record. He reported he had an inability to reason with people. In addition, he was noted to have continuing issues with sleep, including due to memories of Vietnam a couple times per week, which on occasion caused him to punch or choke his wife during sleep. He reported being worried and anxious most of the time and always having to sit with his back to the wall and check his locks four or five times during the night. On the basis of the October 2014 examination report, the RO reduced the Veteran's PTSD rating from 70 percent to 50 percent in a November 2014 rating decision, effective February 1, 2015. At his November 2017 hearing, the Veteran testified that his PTSD had remained at least constant during the period of the claim, and that his symptoms included fits of rage, recurring nightmares, irritability, and mood swings. He stated he was unable to keep a job after discharge due to a difference of opinions as to how things should be done. He stated his typical day involved walking his dog, watching television and playing computer games, and visiting the VFW and AMVETS to spend time with other veterans. Upon a review of the foregoing, the Board has determined that throughout the period of the claim, contrary to the RO's November 2014 reduction of the Veteran's rating, the Veteran's service-connected PTSD has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In this regard, the Board notes that although the Veteran testified that his symptoms have fluctuated in severity over the years, the record shows his PTSD has significantly interfered with his marriages, other relationships, and occupational functioning, in the form of nightmares and intrusive memories causing sleep impairment, as well as self-isolation, irritability and anger, and occasional instances of violence. Accordingly, the Board finds a 70 percent rating is warranted for the Veteran's PTSD for the period beginning February 1, 2015. However, upon a review of the record, there is no evidence of gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, or own occupation, or own name. In sum, the evidence does not show that the Veteran's occupational and social impairment have been "total" at any time during the period of the claim. Specifically, the Board notes that although the Veteran's symptoms contributed to at least one divorce and resulted in his distancing himself from social relationships, the record shows he has maintained at least one close friendship and that he has a relationship with his daughters and is also able to socialize with others at VFW and AMVETS Posts several times per week. Based on the foregoing, the Board finds a rating higher than 70 percent for the Veteran's PTSD is not warranted for any portion of the period of the claim. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15 (2017). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). As discussed above, the Board has determined the Veteran's PTSD warrants a 70 percent rating throughout the period of the claim. Service connection is also in effect for CAD, rated as 60 percent disabling, bilateral hearing loss, rated as 30 percent disabling, type II diabetes mellitus, rated as 20 percent disabling, tinnitus, rated as 10 percent disabling, left lower extremity neuropathy, rated as 10 percent disabling, and right lower extremity neuropathy, rated as 10 percent disabling. As such, the Veteran has satisfied the scheduler criteria for a TDIU under 38 C.F.R. § 4.16 (a). After consideration of the record, and having resolved all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service-connected PTSD has rendered him unable to maintain any form of substantially gainful employment consistent with his education and occupational background throughout the period of the claim. The record shows the Veteran was last employed in approximately 1998 as a security guard, a position requiring at least some degree of communication and interpersonal skills. The record also shows the Veteran's highest level of education attained was graduation from high school with two years of college. The Veteran was afforded a VA psychiatric examination in January 2002. Although the examination took place prior to the period of the current increased rating claim, the examination findings shed light on the effect of the Veteran's PTSD on his occupational functioning. Importantly, the Board notes the Veteran's testimony and the VA examination reports, as well as the Veteran's longstanding receipt of a 70 percent rating, indicate his PTSD symptoms have remained disabling to a consistent degree since service connection for PTSD was granted in May 1999. Accordingly, the Board will consider the findings made by the January 2002 examiner in its assessment of the claim for entitlement to a TDIU. Specifically, the January 2002 examiner noted the Veteran had been seen by counselors for anger management since his discharge from service, and noted his reports he had been terminated from his last job for making a threat. The examiner noted the Veteran's reports that he tended to get into trouble because of his temper and that when he expressed himself other people felt threatened. He reported he was unable to find a new job due to poor references from previous positions, and further that he had lost his drivers' license due to a road rage incident several years prior. The examiner concluded the Veteran's PTSD caused him serious problems with impaired impulse control and anger modulation, resulting in an inability to maintain employment. She further noted the Veteran had a history of alcohol abuse, but stated that given that his history of confrontations in work settings had occurred while sober, it was more likely than not he would have anger modulation problems due to PTSD even if he maintained sobriety. In an April 2002 addendum to her opinion, the examiner reiterated that the Veteran's occupational impairment was due to PTSD symptoms, particularly his inability to control his anger in work settings. The Board notes the January 2002 opinion and April 2002 addendum contrast with the January 2011 VA opinion discussed above, which found the Veteran had no psychiatric barriers that would preclude occupational functioning. However, the Board observes the January 2011 examiner failed to reconcile this finding with the significant psychiatric symptoms detailed in his own report, and otherwise provided no explanation. Upon review, the Board notes the Veteran's statements recalling his employment history and difficulties are consistent with those he has provided to VA examiners during the period of the claim. Moreover, the Veteran's psychiatric symptoms include anger, concentration impairment, social withdrawal, irritability, and nightmares, which cause interference with sleep. In an occupational setting, these symptoms clearly would result in problematic interpersonal interactions. The Veteran's claim is also supported by his own lay statements, and those submitted by his wife, which document similar symptoms. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected PTSD has been sufficiently severe to render him unable to maintain any form of substantially gainful employment consistent with his limited education and occupational background throughout the period of the claim. Accordingly, granting of a TDIU is warranted. The Board briefly notes that the Veteran was granted service connection for bilateral lower extremity neuropathy in a November 2017 rating decision. Pursuant to a November 2017 VA examination related to this condition, a VA examiner noted the Veteran's ability to work was impacted by his lower extremity neuropathy in the form of instability of the feet due to numbness, which prevented prolonged standing and walking. At his November 2017 hearing, the Veteran testified his neuropathy had caused him to limit walks with his dog to a single block from up to two miles previously. While the Board has determined a TDIU is warranted based on the Veteran's PTSD alone, the evidence of an impact on employability by the Veteran's lower extremity neuropathy further supports the granting of a TDIU. ORDER The appeal as to the issue of entitlement to an increased rating for a heart disability is dismissed. Entitlement to a rating higher than 70 percent for PTSD for the period prior to February 1, 2015, is denied. The Board having determined a 70 percent rating for PTSD is warranted for the period beginning February 1, 2015, the appeal is granted to this extent, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a TDIU is granted throughout the period of the claim. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs