Citation Nr: 18140438 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 17-10 978 DATE: October 3, 2018 ORDER Entitlement to an initial rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 18, 2007, is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PTSD has resulted in occupational and social impairment with reduced reliability and productivity; but has not resulted in in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; and has not resulted in total occupational and social impairment. 2. The Veteran’s service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation prior to September 18, 2007. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a TDIU prior to September 18, 2007 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to October 1985 and from June 1992 to December 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2008, the Veteran testified at a personal hearing conducted in Winston-Salem, North Carolina before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated in the claims file. The Veteran was scheduled for an additional Board hearing in August 2018. However, in a July 2018 correspondence, the Veteran’s representative stated that the Veteran wished to withdraw his hearing request. As such, there is no outstanding request for a hearing. 1. Entitlement to a rating in excess of 50 percent for PTSD. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s PTSD is currently evaluated as 50 percent disabling. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran contends that his PTSD should be evaluated as 100 percent disabling. An evaluation of 50 percent is warranted for PTSD with 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. Id. A 70 percent evaluation 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 work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held “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.” Id. at 117. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.130. Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). The Veteran’s PTSD has resulted in occupational and social impairment with reduced reliability and productivity. However, it has not resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or in total occupational and social impairment. Therefore, the Veteran’s PTSD most closely approximates the criteria for a 50 percent evaluation for the entire period on appeal. The Veteran first presented for mental health treatment in July 2004. He reported anxious mood, hypervigilance, and increased startle response. He reported no suicidal or homicidal ideation. In October 2004, the Veteran attended a PTSD evaluation at a VA medical center. The Veteran reported intrusive thoughts, nightmares, detachment from others, hyperarousal, and hypervigilance. The Veteran reported moderate occupational impairment and stated he was currently unemployed, but he was planning on going back to school and considering several career options. He stated he did not have any close friends other than his wife and mother and he attended church on a regular basis, but did not engage in any other social activities. The Veteran reported some fleeting thoughts of suicide in the past, but no current suicidal ideation. VA medical center records from 2004 and 2005 indicate the Veteran was oriented, with no suicidal ideation or homicidal ideation, and no evidence of delusions, hallucinations, or paranoia. The Veteran reported attending school in September 2005. He continued to report flashbacks, intrusive thoughts, and hypervigilance. In June 2006, the Veteran was admitted for inpatient treatment at a VA medical center. The Veteran reported in increase in symptoms of PTSD in the midst of several stressors such as marital difficulty and unemployment. He endorsed fleeting suicidal ideation, homicidal ideation, and auditory hallucinations. The Veteran was discharged as stable approximately one week later with instructions to follow up with outpatient therapy. In November 2006, the Veteran reported good moods, better sleep, less irritability, and no suicidal or homicidal ideation and good insight and judgment. In addition, the Veteran returned to work in November 2006. He began full time work as a mail handler at the post office. The Veteran continued working until September 2007, when he stated he had to stop because of his back disability. The Veteran has continued treatment for his PTSD symptoms at VA medical centers. The Veteran’s treating records indicate continued symptoms of depression, hypervigilance, and nightmares. However, he has consistently denied any suicidal ideation and homicidal ideation, and has presented with good insight and judgment. After a thorough review of the evidence, it appears that although the symptoms associated with the Veteran’s service-connected psychiatric disabilities have fluctuated in severity to some degree through the appeal period, they most closely parallel the type of symptoms described in the criteria for the 50 percent disability rating for the entire appeal period. The Veteran has exhibited occupational and social impairment with reduced reliability and productivity as a result of symptoms such as panic attacks, nightmares, difficulty sleeping, hypervigilance, and disturbances of mood. 38 C.F.R. § 4.130, Diagnostic Code 9411. While the Veteran has presented with some symptoms described in the criteria for 70 percent disability rating, namely suicidal ideation reported in June and July of 2006, these symptoms were of very short duration. A few months after the Veteran’s June 2006 inpatient treatment and reports of suicidal ideation, his mental status exams were within normal range and he returned to work full-time. Treatment records from 2008 to 2013 show the Veteran has consistently denied suicidal ideation. Considering the Veteran’s record as a whole, his symptoms have not caused occupational and social impairment with deficiencies in most area, such as work, school, family relations, judgment, thinking, or mood. Other than records from June and July 2006, the Veteran’s medical records have indicated linear and goal directed thought process, reality based thought content, and good insight and judgment. The Veteran is married, attends church, and although he stopped working in 2007, he stated this was due to his back disability. A higher rating of 100 percent is not warranted, as the Veteran did not have symptoms or overall impairment more closely approximating the criteria for a 100 percent rating. The Veteran is married and has some relationships and interactions with his family. In addition, he reported attending church on a regular basis. Therefore, the record does not show total occupational and social impairment, as required for the 100 percent schedular rating. Based on the foregoing evidence, the Veteran’s PTSD most closely resembles the criteria for a 50 percent rating for the entire period on appeal. The preponderance of the evidence is against the assignment of a rating in excess of 50 percent. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a TDIU The Veteran has been found entitled to a TDIU beginning September 18, 2007. He contends that he should be entitled to a TDIU beginning August 2004. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A claim for a TDIU is a potential part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. TDIU may be assigned by the Board in the first instance where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Prior to September 18, 2007, service connection had been established for PTSD, a lumbar spine disability, epididymitis, status post gunshot wound, chronic sinusitis, and a left flank scar. As of August 11, 2004, the Veteran’s combined rating was 70 percent with one disability, PTSD, rated at 50 percent. As the schedular requirement is met, the remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The record contains a November 2005 letter from the Veteran’s treating psychiatrist, C.C., M.D., which states that the Veteran is unable to seek or maintain gainful employment at that time. The letter also states the Veteran will likely be able to seek and maintain some sort of employment in the future. In November 2006, the Veteran reported that he started working for the Post Office has a mail handler. On his 2009 application for increased compensation based on unemployability, the Veteran stated that he worked 40 hours a week from November 26, 2006 to September 2007. He reported that he stopped working due to his back disability, and lost approximately 20 days of time from illness. The Board acknowledges the November 2005 letter indicating that the Veteran was unable to work, however, the Board finds the fact that the Veteran worked full time for over nine months more probative evidence of his ability to obtain and maintain gainful employment for the period prior to September 18, 2007. The Board acknowledges the representative’s contention that the Veteran’s employment should be considered marginal. However, the Veteran worked full time for nine months and there is no indication that he received any special accommodations. The Veteran reports he was involuntarily termination in September 2007, at which point he was found entitled to a TDIU. As such, the evidence of record indicates that prior to September 18, 2007, the Veteran was able to maintain gainful employment. Based on the above, the preponderance of the evidence is against entitlement to a TDIU for the period prior to September 18, 2007. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel