Citation Nr: 1804558	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  08-35 558	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an increased evaluation for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depressive disorder, currently at 50%.

2. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Robert V. Chisholm


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Kutrolli, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1979 to December 1982. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 (re: psych) and August 2016 rating decisions (re: TDIU and other issues) by the Department of Veterans Affairs (VA) Regional Offices (RO) in Detroit, Michigan, and St. Petersburg, Florida.  

In December 2017, the Veteran participated in the Board's Pre-Hearing Conference (PHC) program, at which time he requested that his case be advanced on the docket.  38 U.S.C. § 7107 (2012); 38 C.F.R. § 20.900(c) (2017).  The Board finds good cause has been shown to grant the request.  The Veteran also noted intent to withdraw his hearing request and remaining appeals if the Board granted a 70 percent rating for the service-connected mental disorder and TDIU.  Given the Board's favorable decision with respect to both claims, the new hearing request and remaining issues are considered withdrawn.  38 U.S.C. §§ 7105(b)(2), 7015(d)(5), 7107 (2012); 38 C.F.R. §§ 20.204, 20.704(e) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2).


FINDINGS OF FACT

1. The Veteran's PTSD and depressive disorder has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood.

2. The Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment.


CONCLUSIONS OF LAW

1. The criteria for a 70 percent rating for PTSD and major depressive disorder 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 TDIU have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Increased Rating for Mental Disorders

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. §  Part 4.  38 U.S.C. § 1155.  The Veteran's mental disorders are currently rated as 50 percent disabling under Diagnostic Code 9411 of the General Rating Formula for Mental Disorders (General Formula).  38 C.F.R. § 4.130.  

Under the General Formula, a 70 percent disability rating is warranted when there is 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 work like setting); inability to establish and maintain effective relationships.  These symptoms are not an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify the rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant.  38 C.F.R. § 4.3.

The evidence of record, including the Veteran's July 2009, August 2013 and July 2016 VA mental disorders examinations (VAXs), as well as the June 2017 private medical report from S. Gatti, MA, CRC, show the Veteran has suffered from many symptoms (non-exhaustive) of chronic sleep impairment, depression, anxiety, poor concentration, suspiciousness, impaired judgment, exaggerated startled response, over-eating, slow speech, recurrent and intrusive memories of traumatic events, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances (e.g., work or work-like setting), and unprovoked irritability and angry outbursts that interfere with day-to-day functioning and relationships and difficulty in adapting to stressful circumstances (e.g., work or work-like setting).  The Board finds the symptoms cause occupational and social impairment with deficiencies in most areas, such as judgment, thinking or mood.  Therefore, a 70 percent rating is warranted.  The Board renders no judgment on the appropriate effective date for the 70% rating. 

II. TDIU

The Veteran also seeks entitlement to TDIU.  He is now currently service-connected for PTSD with depressive disorder (previously 50%, now 70%), urticaria (30%), and neck, back and knee disabilities (each rated at 10%).

Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  "Substantially gainful employment" is 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 v. Derwinski, 1 Vet. App. 356, 358 (1991).  "Marginal employment shall not be considered substantially gainful employment."  38 C.F.R. § 4.16(a).  Consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363.

Where the schedular rating is less than total, a total disability rating may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  If, as here, there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a).  In this case, the Veteran service-connected disabilities combine to at least 80%.  Thus, he meets the schedular criteria for TDIU.

After carefully considering the Veteran's disabilities, the Board grants TDIU on a schedular basis.  The combined effects of the Veteran's disabilities, particularly the service-connected PTSD, neck, back, knee and skin conditions result in memory deficiencies, difficulty concentrating, difficulty handling stressful work situations and adapting to a work-like setting, an inability to learn new things/tasks and complete them, an inability to control his irritability and anger, problems interacting with others, problems performing physical labor, lifting, prolonged walking or standing, squatting and climbing stairs.  

For these reasons, the Board finds it is unlikely that the Veteran will be able to obtain and/or maintain substantially gainful employment.  Accordingly, the claim for TDIU is granted. 

ORDER

Entitlement to a 70 percent rating for PTSD and major depressive disorder is granted. 

Entitlement to TDIU is granted.


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



Department of Veterans Affairs