Citation Nr: 18140780 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 14-25 445 DATE: ORDER Entitlement to an increased rating of 70 percent, but no higher, for posttraumatic stress disorder with secondary mood disorder and alcohol abuse (PTSD), is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran’s PTSD most closely approximate occupational and social impairment with deficiencies in most areas, but they do not more nearly approximate total occupational and social impairment at any time during the appeal period. 2. The evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities preclude him from being able to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1983 to October 1983, April 1985 to March 1988, September 1999 to December 2001, and October 2003 to April 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon which among other things, continued the evaluation for PTSD as 50 percent disabling and denied the claim of entitlement to TDIU. The Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge in September 2017. A copy of the transcript is of record. The Board acknowledges that the Veteran has submitted a Rapid Appeals Modernization Program (RAMP) Opt-In form. However, as the appeal as to the issues listed on the title page herein had been activated at the Board prior to the Veteran’s submission, it is not eligible for the RAMP program. The appeal as to the issue of an earlier effective date for the addition of the Veteran’s spouse to his compensation award has been recognized as subject to the RAMP Opt-In. A March 2017 supplemental statement of the case reported the Veteran’s bilateral hearing loss appeal was incorporated into the pending appeal. Notwithstanding the inclusion of this issue in the supplemental statement of the case and testimony related thereto at the September 2017 Board hearing, the Board has no jurisdiction over this issue. The Veteran did not file a notice of disagreement to the denial of an increased rating in the March 2013 and January 2015 rating decisions. This is necessary to confer jurisdiction on the Board. He may pursue the issue of an increased rating for bilateral hearing loss by filing a new claim for an increased rating. Increased Rating 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 “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to a rating increase for PTSD currently rated as 50 percent disabling The Veteran has asserted that his PTSD symptomatology of suicidal ideation, obsessional rituals and hallucinations warrant a 100 percent evaluation. He testified that he was informed by a VA employee that based on the Veteran’s file, his PTSD should be rated at least 70 percent disabling. He stated that he does not like to be around people or in crowded places. He stated that he does not do well with confrontation and that stress sometimes sends him “over the edge.” The criteria for rating PTSD are found at 38 C.F.R. § 4.130, DC 9411. PTSD is rated under the General Rating Formula for Mental Disorders. Under this formula, a 50 percent evaluation 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly 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 worklike 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 United States Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive 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 based on social impairment. See 38 C.F.R. § 4.126(b). A May 2010 VA mental health consultation note indicated the Veteran was homicidal with no specific person in mind. The Veteran’s rage had escalated over the past 7 to 10 days. A July 2011 VA examination report noted the Veteran has not worked since December 2010 and that he was fired due to his lack of attendance and low motivation to work. The Veteran was mildly irritable during his examination and stated he had difficulties with short-term memory and concentration. He denied suicidal or homicidal ideation and his judgment was grossly intact. He was taking medication for intrusive memories, sleep, migraines and mood. The Veteran described symptoms of hypervigilance and exaggerated startle response. The Veteran stated that he has mood swings and endorsed feelings of helplessness and feels worthless “a lot.” He described anhedonia and a variable appetite. A February 2013 examination report indicated the Veteran’s PTSD symptomatology caused occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran has been married for 28 years, but the relationship is sometimes strained due to his symptoms. The Veteran was noted to be able to perform most activities of daily living although he needs assistance in some areas such as managing his medications. The examination report noted the following symptoms attributed to PTSD: depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood. A February 2013 VA treatment note indicated the Veteran was feeling hopeless about the present and future, and that he had thoughts of taking his own life. He reported he had these thoughts in 2005. He also reported attempting suicide in 1994 and 2005. A PTSD screening note, however, indicated the Veteran did not currently have thoughts of suicide. A letter from the Veteran’s supervisor reported that the Veteran’s pain issues when not immediately resolved quickly expand into general anger issues which result in negative engagements with medical providers, law enforcement and many other individuals. The letter indicated that the Veteran feels that previous interactions with medical professionals put him on a “watch list” and as a result, he quickly becomes defensive with their questioning. The supervisor stated suicidal ideation has resolved as the Veteran has stopped self-medicating for depression and anxiety with alcohol. The evidence of record indicates that during the period on appeal, the Veteran’s PTSD symptoms have included feelings of hopelessness, anxiety, irritability, sleep impairment, impaired impulse control including periods of violence, and hypervigilance. The Veteran also has reported difficulty establishing and maintaining effective relationships as evidenced by his strained relationship with his wife and family due to his PTSD. The evidence is thus at least evenly balanced as to whether the Veteran’s PTSD symptomatology more closely approximates occupational and social impairment with deficiencies in most areas contemplated by a 70 percent rating under DC 9411. There is no evidence which suggests that the Veteran’s PTSD symptomatology more closely approximates total occupational and social impairment; thus, a higher 100 percent evaluation for PTSD under DC 9411 is not warranted. He has provided no evidence that he presents a persistent danger of hurting himself or others. There is no evidence of disorientation to time or place, memory loss, persistent hallucinations or delusions, and the Veteran is capable of handling activities of daily living, with the exception of medication management. Overall, his impairment, while significant, is not total in degree. The duration, frequency and severity of PTSD symptoms does not meet or approximate the criteria for a higher evaluation. In sum, the evidence is at least evenly balanced as to whether the Veteran’s symptoms of PTSD more closely approximate occupational and social impairment with deficiencies in most areas. Accordingly, entitlement to a rating of 70 percent, but no higher, for PTSD is warranted. 2. Entitlement to a total disability rating due to individual unemployability The Veteran stated that he should be granted TDIU based on his inability to maintain work because of sedation from use of needed medication, and due to bouts of depressive behavior related to PTSD including 2 suicide attempts. He stated that he cannot work around or deal with others, and even has a state order to stay away from his wife due to domestic violence. He testified that he was forced into retirement in December 2010 because of migraines, PTSD, and other health issues. He also indicated that he displayed inappropriate physical and verbal behavior at his place of employment. The Veteran indicated that the idea of having to interact with people is terrifying for him. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, because of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 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.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. In this case, in light of the decision herein, the Veteran is now rated as 70 percent disabling for his PTSD. Other service-connected disabilities are degenerative disc disease of the lumbar spine, rated as 40 percent disabling; right knee arthroplasty, rated as 30 percent disabling; tinnitus, rated as 10 percent disabling; peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; and bilateral hearing loss, erectile dysfunction, and post-concussive vertigo, all noncompensable. Prior to the award of an increased rating for PTSD herein, the combined rating was 90 percent, excluding the period October 19, 2016 to November 30, 2017, when he was assigned a schedular 100 percent rating for status post total right knee arthroplasty. As the Veteran is service connected for 2 or more disabilities with at least one rated at 40 percent and a combined rating of at least 70 percent, the Veteran meets the schedular rating criteria under 38 C.F.R. § 4.16(a). February 2011 records provided by the Social Security Administration indicate the Veteran completed 12th grade and also completed truck driving school. A February 2011 representative statement indicated the Veteran’s mental and physical health has deteriorated to the point that he is no longer able to work. The representative noted that the Veteran’s PTSD caused a total disruption in his ability to work as he is unable to take any direction or have personal interaction with co-workers without conflict. A June 2011 examiner noted that the Veteran’s right knee degenerative joint disease would preclude the Veteran from engaging in an occupation such as truck driving that required prolonged, or frequent use of his right leg and knee such as bending, stooping, or squatting. His knee degenerative joint disease also caused diminished ability to stand or walk for prolonged periods of time. The Veteran’s June 2011 traumatic brain injury (TBI) examiner stated that the Veteran may fall into the “borderline” range for attention deficit disorder, and stated the Veteran would have significant difficulty maintaining full time employment due to chronic headaches and occasional vertigo, but would likely be employable in a sedentary position with low stress and low noise levels. A July 2011 examination report indicated that the Veteran’s degenerative joint disease of the low back would preclude his ability to sit for a long period of time and limit the movement of his back as well as his ability to lift and carry things, but would not preclude sedentary employment. An August 2011 VA examination note indicated that the Veteran is not suffering significant work problems related to his PTSD and there is no indication that he could not work in a loosely supervised environment due to mental health concerns. A June 2012 VA examination report indicated that the Veteran would continue to have significant difficulty maintaining full time employment due to chronic headaches (not related to TBI) and post-concussive vertigo (due to TBI). The examiner noted that the Veteran’s post-concussive vertigo and the component of his cognitive difficulties due to TBI would not render him unemployable. The examiner opined that the Veteran would likely be employable in a sedentary position with low stress/noise levels/ and low to moderate intellectual demands. The Veteran’s former supervisor stated that he does not believe there are many careers the Veteran would be able to do because of his current physical limitations and the environmental stressors that are present in the work place. A friend of the Veteran testified that the Veteran would not be able to maintain employment as he has difficulty with authority figures and is also unreliable when it comes to showing up to work on time and staying the whole day. He also noted that the Veteran and his wife no longer live together and that there is conflict between the Veteran and his kids due to the Veteran’s inability to adjust, adapt and work together with them. Based on the foregoing, the Board finds that the evidence of record is at least in equipoise on the question of whether the service-connected disabilities preclude the Veteran from securing and following substantially gainful employment for which the Veteran would otherwise be qualified. The Veteran’s work history has involved working as a truck driver and mechanic, but his PTSD symptomatology would preclude him from working in a physical or sedentary occupation as he is unable to work with people due his having difficulty dealing with authority figures and people in general. Additionally, the Veteran’s degenerative joint disease of his right knee would preclude him from working in a position suitable to his experience and training or sedentary occupation, as he is unable to sit, stand or walk, stoop or squat for any prolonged period, and his low back degenerative joint disease limits his ability to lift and carry objects. The evidence is thus at least evenly balanced as to whether the Veteran’s service connected disabilities render him unable to secure or follow substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel