Citation Nr: 1803681	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  17-58 739	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and attention deficit disorder (ADD).

2.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	Gregory M. Rada, Attorney


ATTORNEY FOR THE BOARD

M. D. Bruce, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 2009 to July 2015.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2015 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office.  In lieu of a Board hearing, a pre-hearing conference was conducted in January 2018.  The Veteran waived his request for a hearing if a grant based on a review of the record could be found for TDIU.  

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) (2012).


FINDINGS OF FACT

1.  The Veteran's PTSD and ADD manifested in symptoms most nearly approximating occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment.  

2.  The evidence demonstrates that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation.  


CONCLUSIONS OF LAW

1.  The criteria for a 70 percent disability rating, but no higher, for PTSD and ADD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

2.  The criteria for entitlement to a TDIU have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all of the evidence in the Veteran's claims file.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein.  The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).  When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

PTSD

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's service-connected PTSD and ADD are currently rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411.  The Board notes that Diagnostic Code 9411 directs the rater to consider the appropriate rating under the General Rating Formula for Mental Disorders (Mental Disorders Formula).

Under the Mental Disorders Formula, 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.  Id.

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); and inability to establish and maintain effective relationships.  Id.

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; and memory loss for names of close relatives, own occupation, or own name.  Id.

When evaluating the level of disability from a mental disorder, the rating agency 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 (2017).  Furthermore, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Id. at 442; Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004).  A veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.

The Veteran first underwent VA examination in connection with this claim in October 2014, prior to his discharge from active duty service.  The examiner noted that the Veteran suffered from symptoms including depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, and obsessional rituals interfering with routine activities.  The Veteran reported frequent nighttime awakening and recurrent nightmares.  He indicated that he was worried about the well-being of his family, and that he had difficulty establishing relationships because he was guarded.  He related feeling severe anxiety about his uniform being correct.  The examiner ultimately opined that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity.

The Veteran again underwent VA examination in February 2017.  The Veteran stated that he had not been able to keep a job since his discharge from the military.  He reported that he had been a winemaker and imported wines prior to his service, but did not feel he could muster the same socialization skills that were required of him to be successful.  The Veteran reported daily suicidal ideation, but that he had implemented some coping strategies to interrupt this thinking.  The examiner noted symptoms including irritable behavior and angry outbursts, feelings of detachment or estrangement from others, problems with concentration, depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, hypervigilance, and suicidal ideation.  The examiner ultimately opined that the Veteran's symptoms resulted in occupational and social impairment with an 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.  

The examiner further noted that the Veteran had been unable to "find any traction in civilian life in terms of occupational functioning."

In December 2017, the Veteran submitted a report from a private psychologist, J.M., in support of his claim.  J.M. interviewed the Veteran and reviewed the record, and opined that the Veteran's PTSD resulted in very severe limitation of functioning.  The Veteran described great difficulty concentrating on anything for more than 10 minutes, and stated that he could not even read due to difficulty focusing.  He further indicated problems with memory, and reported that he had trouble remembering appointments and the names of cousins, nephews, and neighbors.  The Veteran said that he used to be outgoing, but now did not want to talk to anyone and had difficulty dealing with people he did not know or making new friends.  He described feeling like he did not want to be alive and having very extreme nightmares.  J.M. opined that the record was clear that the Veteran had deficiencies in most areas due to "across-the-Board PTSD symptoms" and nearly constant depression and suicidal ideation.  J.M. further opined that the Veteran was unable to adapt to stressful circumstances and unable to establish and maintain effective relationships. 

Treatment records and other evidence throughout the period on appeal demonstrate symptoms consistent with those noted above.  During treatment the Veteran reported repeated flashbacks during the day and occasional auditory and visual hallucinations.  The record also reflects that the Veteran was hospitalized in August 2017 following a suicide attempt.  

Upon review, the Board finds that the criteria for a 70 percent disability rating have been met.  In that regard, the record reflects a high level of occupational and social impairment due to PTSD and ADD.  The Veteran demonstrated frequent suicidal ideation, obsessional rituals, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships.  The Board does not find, however, that a 100 percent rating is warranted.  While the Veteran's symptoms were severe, the evidence does not demonstrate that they rise to the level of total occupational and social impairment.  While the Veteran was unable to work, as discussed below, he was able to maintain a marriage.  While hallucinations were noted, the evidence does not reflect that they were persistent.  The Veteran was able to perform activities of daily living, including maintaining personal hygiene, and remained oriented to time and place.  While he had some memory impairment, it was not severe.  Accordingly, the Board finds that the Veteran's symptoms were not of such frequency, duration, or severity to merit a total rating, and a rating of 70 percent, but no higher, is warranted.  

In reaching this conclusion, the Board has considered the assertions of the Veteran as to his symptomatology and the severity of his condition, but, to the extent the Veteran believes that he is entitled to a higher rating than assigned herein, concludes that the findings during medical evaluation are more probative than his assertions to that effect.  Furthermore, the assertions of the Veteran regarding the severity of his disabilities are generally consistent with the rating currently assigned and with the findings on VA examinations.  As such, the Board has considered the assertions of the Veteran but has also relied heavily on VA examinations, which duly considered the Veteran's subjective symptoms and do not show limitation of function approximating the criteria for a higher rating.  

TDIU

VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  The record reflects that the Veteran meets the schedular requirements for a TDIU.  38 C.F.R. § 4.16(a).

Upon review, the Board finds the evidence demonstrates that the Veteran's service-connected disabilities have prevented him from securing and following a substantially gainful occupation.  In that regard, the Veteran's PTSD and ADD prevent him from forming effective relationships and adapting to stressful circumstances, such as a work or worklike setting.  While the Veteran had a successful sales career prior to military service, as the February 2017 VA examiner opined, he has been unable to "find any traction in civilian life in terms of occupational functioning."  Furthermore, while the Veteran has had some brief episodes of employment since service, the evidence reflects that it has been marginal at best.  In sum, the totality of the evidence demonstrates that the Veteran has a high level of occupational impairment related to his service-connected PTSD which, combined with pain and impairment from his other service-connected disabilities, have rendered him unable to secure or follow a substantially gainful occupation.  Accordingly, entitlement to a TDIU is granted.

Neither the Veteran nor his representative has raised any other issues with respect to the increased rating claims, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

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 a duty to assist argument).

ORDER

Entitlement to an initial 70 percent disability rating, but no higher, for PTSD and ADD is granted.

Entitlement to a TDIU is granted.  


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs