Citation Nr: 1804999 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-10 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive features. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Kenneth Wagoner, Esq. ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1968 to December 1972. During his period of service, the Veteran earned National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Good Conduct Medal, and Sharpshooter (Rifle) Badge. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted entitlement to service connection for PTSD with depressive features, evaluated as 30 percent disabling, effective May 28, 2004. The RO granted an increased initial rating of 50 percent in a February 2014 Statement of the Case. This issue was previously remanded in November 2015. All necessary development has been accomplished, and therefore appellate review of the claim may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's service-connected PTSD was manifested by occupational and social impairment, with deficiencies in most areas. 2. Throughout the appellate period, the Veteran's PTSD has not been productive of total occupational and total social impairment. 3. The Veteran is precluded from gaining or maintaining substantially gainful employment due to his service-connected disability. CONCLUSIONS OF LAW 1. Throughout the appellate period, the criteria for a 70 percent initial evaluation for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. Resolving all doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating - PTSD Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where there is 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. A 70 percent rating is warranted where 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 a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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. 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 examples of the type and degree of symptoms, or their effects, that 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 the 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 his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently assigned a 50 percent rating for his service-connected posttraumatic stress disorder. He contends that a higher rating for his PTSD is warranted. VA treatment records show that the Veteran had a positive PTSD screen in May 2004, with a diagnosis of PTSD with depressive features in December 2004. The medical evidence shows that the Veteran reported nightmares; intrusive and disturbing memories; re-experiencing; anxiousness; emotional and physical reactions when recalling his experiences in Vietnam; decreased concentration; and irritability. The Veteran experienced feeling distant and cut off from others; isolation; disturbing sleep; hyper-alertness; and guilt trying to rectify his wartime experiences with his Christian faith. The Veteran also reported that he had a difficult time remaining with any one employer since his discharge from service and that he and his family had made a number of moves. The Veteran appeared for a private examination with Dr. W. M. in March 2013. The Veteran reported trouble managing his bank account, staying focused, and completing large tasks. The Veteran further reported that he spent large amounts of time on tasks and would feel "on edge." The Veteran's wife noted that the Veteran had difficulties with personal hygiene and would often forget to shower on a daily basis. The Veteran reported symptoms of daily depression, associated with anhedonia; decreased interest in hobbies and sexual activities; middle insomnia; psychomotor retardation; daytime lethargy; feelings of worthlessness; feelings of detachment and estrangement from others; difficulty staying asleep; irritability; hypervigilance; exaggerated startle response; trouble with concentration and decision-making; and thoughts about death and dying. The Veteran also reported recurrent and distressing recollections, flashbacks, and physiological and physiology reactivity upon exposure to external cues that reminded him of Vietnam. The Veteran further described severe anxiety and panic attacks. He found it difficult to control his worry and noted feeling keyed up or on edge. The Veteran appeared for a VA PTSD examination in November 2013. The examiner noted occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported that he occupied himself by raising pheasants and watching television. He did not have energy to do any more activities. He noted becoming stressed when grocery shopping. He did not go to restaurants, movies, or shows. He further reported that he did not read and did not have any friendships. He stated that he would go hunting once per year with his son. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; near continuous panic or depression affecting the Veteran's ability to appropriately and effectively function independently; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances including work or work like setting. The Veteran was afforded another VA PTSD examination in May 2016. The examiner noted occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported difficulty being around crowds of people. He stated that he would sit in the back pew at church because he had difficulty with people being behind him. He and his spouse rarely went out or participated in celebratory activities because of his anxiety. The Veteran further reported that he mostly stayed home and had little energy. The Veteran's spouse stated that he had a short temper and would be verbally explosive. The Veteran stated that anything small could set off stress and trigger panic or anxiety. He would become easily frustrated and engaged in arguments with family members. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; panic attacks, near continuous panic or depression affecting the Veteran's ability to appropriately and effectively function independently; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory; flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances including work or work like setting; suicidal ideations; and obsessional rituals. A private opinion was submitted by Dr. J. M. in August 2017. The examiner indicated that the Veteran had difficulties in most areas, including work, judgment, and thinking due to his PTSD symptoms. The Veteran exhibited symptoms such as intrusive thoughts; numbing; arousal; nearly constant depression with frequent suicidal ideation, which makes it impossible for him to function independently, appropriately and effectively; impaired impulse control; and difficulty in adapting to stressful circumstances. The medical evidence also includes Social Security Administration (SSA) records and VA treatment records showing psychiatric treatment and symptoms that were not worse than or inconsistent with those recorded in the private and VA examination reports. In addition to the medical evidence, the Veteran and his wife have provided written statements regarding his PTSD symptoms. This lay evidence is also consistent with the private and VA examination reports. In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board concludes that the Veteran is entitled to a 70 percent evaluation for his service-connected PTSD throughout the appeal period. The medical and lay evidence supports a finding of occupational and social impairment with deficiencies in most areas. The VA and private examiners found the Veteran had roughly consistent symptomatology. The Veteran has consistently reported symptoms that include nightmares, anxiety, suspiciousness, suicidal ideation, depression, intrusive thoughts, impaired impulse control, strained and difficult relationships, social isolation, relying on his wife to prompt him to maintain his hygiene, and having to quit his job due to his difficulty being around people. The effect of these symptoms is occupational and social impairment deficiencies in most areas. The Board notes that the Veteran did work until 2009. However, his ability to work was limited by his psychiatric symptoms. Thus, the Board will afford the Veteran the full benefit-of-the-doubt and find that the totality of the evidence favors the assignment of an initial 70 percent rating. Although an increased rating of 70 percent is warranted, the evidence of record does not reflect symptoms that would meet the criteria for a 100 percent rating for any period of time during the pendency of the claim. Although the presence or absence of certain symptoms is not dispositive to the issue of the proper disability rating, the presence or absence of symptoms is useful in determining the severity of the condition. There is no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or, memory loss for names of close relatives, own occupation, or own name. Although the Veteran's wife reported needing to prompt the Veteran to shower, the evidence does not establish an intermittent inability to perform activities of daily living. The treatment records and multiple VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 100 percent. Rather, while the evidence of record demonstrates significant impairment in occupational and social functioning, it does not show total occupational and social impairment to warrant an increased rating of 100 percent. While the Veteran has expressed that he has no friends, he has been able to maintain his marriage throughout the appellate period, and maintains relationships with his adult children. Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 70 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Hart, supra. Based on the foregoing, the Board finds that the Veteran's symptoms do not more nearly approximate both total social and total occupational impairment as required to warrant a 100 percent rating for the appellate period. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 100 percent have not been met or approximated during this period on appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9411. For all the foregoing reasons, the Board finds that a 70 percent initial rating, but no higher, is appropriate for the entire period on appeal. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 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 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 cause 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). In order for a Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other Veterans who meet the basic schedular criteria. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 361. With the grant of 70 percent for the Veteran's PTSD, he now meets the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, the evidence must still show that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities in order to be entitled to a TDIU. A private opinion submitted by Dr. J. W. of the Veterans Health Care Systems of the Ozarks in July 2011 stated that the Veteran was totally and permanently disabled because of depression, PTSD, and cognitive dysfunction. A private opinion submitted by Dr. S. P. of the VA Mental Health Clinic at the Veterans Health Care Systems of the Ozarks in November 2011 stated that the Veteran was unable to learn new skills and retain them. She further noted that the Veteran lacked the ability to work with the public and became anxious around strangers. As such, she opined that the Veteran was unemployable due to his chronic, moderate symptoms. Upon private examination in March 2013, Dr. W. M. opined that the Veteran would not be able to perform the job requirements of his then position, as he displayed difficulty working with the public and had trouble counting money. The examiner noted that the Veteran was often distracted and was somewhat impulsive. The Veteran appeared for a VA PTSD examination in May 2016. The examiner noted that the Veteran was easily distracted, had trouble with concentration, and had difficulty maintaining focus on tasks. Short-term memory problems and fatigue made it difficult for him to perform a job. His level of depression also caused difficulty sustaining the energy needed to complete work assignments. She further noted that the Veteran's focus and attention were negatively impacted by frequent intrusive thoughts. She expressed that the Veteran was likely to become angry if someone tried to give him supervision and he would have difficulty with anxiety and anger if he had to be around a group of people. The examiner opined that it was not likely that the Veteran could be an effective part of a team. A private opinion was submitted by Dr. J. M. in August 2017. Dr. J. M. opined that the severe limitations of the Veteran's social and occupational functioning have rendered him unemployable. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. The Veteran's last period of gainful employment ended in 2009. There is no evidence of any type of special training. The Veteran's work history of record has consisted of employment as an inspector at a slaughterhouse. Even if the Veteran had special training or advanced education, the medical opinions document significant symptoms that would impair employment, such as social isolation and emotional numbness, occupational and social impairment with reduced reliability and productivity, difficulty managing anger, suicidal ideations, intrusive thoughts, irritability, and difficulty in establishing and maintaining effective work and social relationships. Considering the foregoing, the Board will resolve reasonable doubt in the Veteran's favor, and find that the criteria for TDIU are met. Accordingly, the claim is granted. ORDER Entitlement to a disability rating of 70 percent for PTSD is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits. Entitlement to TDIU is granted. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs