Citation Nr: 1804887 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-20 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent from December 12, 2012, to August 18, 2015, and since November 1, 2015, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since December 12, 2012. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION The Veteran had active service from October 1970 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. The issue of a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus the issues on appeal are as listed on the title page. Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. The Veteran's PTSD manifested by symptomatology more nearly approximately occupational and social impairment with deficiencies in most areas, due to symptoms of depressed mood, anxiety, nightmares, flashbacks, intrusive thoughts, hypervigilance, chronic sleep impairment, panic attacks, suicidal thoughts, socially-isolative behaviors, and difficulty in establishing and maintaining effective work and social relationships. 2. The Veteran's PTSD disability renders him unable to obtain and maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent from December 3, 2012, to August 18, 2015, and since November 1, 2015, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. See 38 C.F.R. § 4.7. For claims for increased ratings which arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's PTSD has been evaluated under 38 C.F.R. § 4.130 as 50 percent disabling since December 3, 2012, under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130, DC 9411. During the pendency of the appeal, the Veteran participated in an in-patient PTSD treatment program, and received a temporary convalescence rating from August 19, 2015, to October 31, 2015. The Veteran contends he demonstrated symptoms warranting a higher initial and post-hospitalization evaluation. The General Rating Formula for PTSD is as follows: A 100 percent rating is assigned 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; 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. A 70 percent rating is assigned 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); inability to establish and maintain effective relationships. A 50 percent rating is assigned 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130 (2016). The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See id. VA must consider all symptoms of a claimant's disorder that affect his or her occupational and social impairment. See id. at 443. If the evidence demonstrates that a claimant has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the claimant's symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See id. VA treatment records from 2012 indicate the Veteran reported chronic sleep impairment, including frequent nightmares about his service in Vietnam, anxiety and depression. His treatment included psychotropic medications such as Lorazepam, which he eventually tapered off of after several unsuccessful attempts. At the February 2013 VA medical examination, the Veteran reported feeling depressed since Vietnam, with periods of significant worsening and then improvement. He reported suicidal ideation the week prior to the examination. The examiner noted current diagnoses of PTSD, major depressive disorder, and alcohol abuse in remission, and gave the Veteran a GAF score of 45. The examiner also noted separate and concurrent symptoms of the Veteran's diagnoses, including recurrent intrusive thoughts, distressing dreams, intense psychological reaction to specific sensations, efforts to avoid thoughts and conversations regarding traumatic event, hypervigilance, exaggerate startled reactions, low mood, low motivation, diminished pleasure, suicidal ideation, markedly diminished interest and/or participation in significant activities, feeling detached or estranged from others, sleep disturbances, irritability, and difficulty concentrating. The examiner assessed the Veteran with serious social and occupational functioning. In June 2014, the Veteran called the suicidal hotline and reported he attempted an overdose two weeks prior. The Buffalo VAMC placed him on the "high risk for suicide" list. He consistently demonstrated a flat affect, depression, anxiety, chronic sleep impairment, nightmares, and social isolation at his psychiatric and mental health clinic sessions. Private treatment records indicate a relapse in PTSD and depression symptoms in May 2015, with the Veteran complaining of chronic sleep impairment, morose intrusive thoughts, and low energy. He began a twelve-week program of electroconvulsive treatments (ECT) for depression in February 2015, and then entered the in-patient PTSD treatment program at Batavia VA medical center (VAMC) in August 2015. At the May 2016 hearing, the Veteran reported increasing isolation from others, including his supportive family and friends; avoidance of crowds and loud noises; and chronic sleep impairment. He reported attending individual counseling every two weeks, and supplementing with occasional walk-in counseling sessions at the mental health clinic. The Veteran's PTSD with major depressive disorder and alcohol abuse disorder symptoms manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, and warrants a 70 percent evaluation. His disability demonstrated with symptoms such as depressed mood, anxiety, nightmares, flashbacks, intrusive thoughts, hypervigilance, chronic sleep impairment, panic attacks, suicidal thoughts, socially-isolative behaviors, and difficulty in establishing and maintaining effective work and social relationships. A higher evaluation of 100 percent is not warranted because the Veteran did not demonstrate total occupational and social impairment due to symptoms such as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or disorientation to time and place. Accordingly, the Veteran's PTSD warrants a disability rating of 70 percent, but not higher, from December 12, 2012, to August 18, 2015, and since November 1, 2015. TDIU TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). 38 C.F.R. § 4.16 (a) establishes that the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2016). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). 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 a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Considering the Board's decision above, the Veteran meets the percentage threshold set forth in 38 C.F.R. § 4.16 (a) for consideration of a TDIU on a schedular basis. Thus, the remaining question to be answered is whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. After affording him the benefit of the doubt, the Veteran's service-connected disability prevents him from securing or following gainful employment. TDIU is granted. ORDER A rating of 70 percent for PTSD from December 3, 2012, to August 18, 2015, and since November 1, 2015, is granted. TDIU since December 3, 2012, is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs