Citation Nr: 18141079 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 11-14 548 DATE: October 9, 2018 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted, effective October 29, 2008. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to April 19, 2009 is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD has been productive of a total occupational and social impairment. 2. The Veteran’s service-connected disabilities do not render him unable to obtain or retain substantially gainful employment prior to April 19, 2009. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for PTSD, for the period beginning October 29, 2008, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. Prior to April 19, 2009, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1991 to October 1991, October 2001 to October 2002, January 2003 to October 2003, and July 2004 to October 2005. 1. Entitlement to a rating in excess of 70 percent for PTSD The Veteran is seeking a higher disability rating for the Veteran’s service-connected PTSD. By history, the Veteran was service connected for PTSD in a May 2007 rating decision with a 10 percent rating effective October 23, 2005. In a subsequent rating decision, the Veteran’s PTSD was increased to 70 percent effective August 7, 2008. The Veteran applied for an increased rating on October 29, 2009. Accordingly, the relevant period at issue for the current increased rating claim is from October 29, 2008. The Veteran’s PTSD is rated as 70 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. This diagnostic code provides that PTSD is to be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. Under the General Rating Formula, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Turning to the evidence, the record reflects the Veteran received mental health treatment from the VA medical center (VAMC) throughout the period at issue. The Veteran was afforded a VA examination in December 2008. The examiner found no impairment in thought processes or communication. The Veteran endorsed homicidal ideations, but only directed towards his ex-wife. The Veteran also stated he was experiencing some memory problems. The examiner noted that speech and activities of daily living where normal. The Veteran was afforded a VA examination in December 2009. Upon mental status examination, the Veteran was found to be appropriately dressed and personal hygiene adequate. Speech was slow and concentration and information processing was poor. The Veteran reported frequent intrusive thoughts, anxiety, weekly nightmares, and social avoidant behavior. The Veteran was afforded a VA examination in February 2011. Upon mental status examination, the examiner noted significant psychomotor retardation and impairment in mental processing abilities. The examiner noted the Veteran displayed significant impairment in concentration, judgment, reasoning, recall, and communication ability. The Veteran appeared to be lethargic and significantly depressed. No suicidal or homicidal ideations were noted. The Veteran was afforded a VA examination in January 2012. The Veteran exhibited symptoms of a depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, flattened effect, impaired judgement, impaired abstract thinking, an inability to establish and maintain effective relationships, and impaired impulse control. The examiner noted the Veteran had stabilized since the last examination, however, he remained extremely irritable. The examiner opined the Veteran’s PTSD manifested with deficiencies in most areas. Upon VA evaluation in March 2013, the Veteran demonstrated symptoms of a depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, and difficulty in adapting to stressful circumstances. The Veteran was afforded a VA examination in July 2016. The Veteran demonstrated symptoms of a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, and difficulty in adapting to stressful circumstances. The examiner concluded the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. Affording the Veteran the benefit of the doubt, the Board finds the overall evidentiary record shows that the severity of the Veteran’s PTSD most closely approximates the criteria of a 100 percent disability evaluation beginning October 29, 2008. The medical record indicates the Veteran experienced homicidal ideation, memory loss, flattened affect, difficulty establishing and maintaining relationships, and displayed significant impairment in concentration, judgment, reasoning, and recall. Thus, the Board finds that the evidence supports a finding of total occupational and social impairment. In so deciding, the Board notes that the Veteran’s symptoms have waxed and waned at times during the appeal period. However, the periods of milder versus more severe symptoms are not so discrete as to make staged ratings feasible. Accordingly, the Board finds that a 100 percent disability rating for the period beginning October 29, 2008 is warranted. This constitutes a full grant of the benefits sought on appeal. 2. Entitlement to a TDIU prior to April 19, 2009 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). 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 caused 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). The evidence shows that the Veteran was service connected for PTSD rated as 10 percent from October 2005, 70 percent from August 2008, and 100 percent from October 2008; lumbar disc disease rated as 20 percent disabling; left lower extremity radiculopathy rated as 10 percent disabling; and right lower extremity radiculopathy rated as 10 percent disabling. 38 C.F.R. § 4.25. The Veteran’s combined evaluation for compensation is 10 percent from October 23, 2005, 80 percent from August 7, 2008, and 100 percent from October 29, 2008. Therefore, as of August 7, 2008, the schedular percentage criteria for a TDIU have been met. 38 C.F.R. § 4.16(a). The Board does not have jurisdiction to grant a TDIU in the first instance for the period prior to August 7, 2008, because the Veteran does not meet the percentage requirements for a schedular TDIU rating before that date. VA’s policy is to award TDIU in all cases where service-connected disability precludes gainful employment regardless of the percentages awarded. 38 C.F.R. § 4.16(b) (2017). Although the Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of the VA Compensation Service (Director) or Undersecretary for Benefits for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (“On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance.”). Turning to the evidence, first, the Board must determine when the Veteran was actually unemployed. Upon VA examination in December 2008, the Veteran stated he spent most of his time working. However, upon VA examination in December 2009, the Veteran reported he had not worked since May 2008. Correspondence from the Veteran’s former employer, A.S.P., show the Veteran was terminated as of May 29, 2009. On the Veteran’s October 2010 application for increased compensation due to individual unemployability, the Veteran reported he was last employed in July 2009. On an updated November 2011 application, the Veteran stated his last full time employment was April 2009. Finally, on an April 2014 application, the Veteran reported his last full time employment was in May 2009. The applications do not suggest that the Veteran’s employment was marginal or sheltered. The Veteran was granted a TDIU effective April 19, 2009. There is nothing in the record to suggest the Veteran was unemployed prior to this date as the result of his service-connected disabilities. As the preponderance of the evidence does not show the Veteran was unemployed prior to April 19, 2009, the claim for a TDIU prior to this date must be denied. The Board acknowledges and appreciates the Veteran’s years of honorable service to this country, and this decision denying a TDIU prior to April 19, 2009 is in no way meant to diminish that service. Unfortunately, however, as the preponderance of the evidence is against the claim, the claim cannot be granted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel