Citation Nr: 18141139 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-43 842 DATE: October 9, 2018 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran’s PTSD is not shown to cause total social impairment. 2. The evidence of record makes it at least as likely as not that the Veteran’s service connected disabilities are of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.130, Diagnostic Code 9411. 2. The criteria for a total disability rating based on individual unemployability (TDIU) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1968. This matter is on appeal from a February 2013 rating decision. In a June 2016 signed statement in support of claim, the Veteran, requested that his scheduled Board videoconference hearing be withdrawn. Subsequently, in a letter dated in September 2018, the Board granted the Veteran’s request and deemed the scheduled Board hearing cancelled. The correspondences are associated with the claims file. Of note, the Veteran's previous representative withdrew representation in June 2016. On behalf of the Veteran, his representative submitted a signed letter dated in September 2018, which waived agency of original jurisdiction consideration of any additional evidence received by VA subsequent to the most recent SOC. 38 C.F.R. § 20.1304. Increased Rating 1. PTSD The Veteran filed a claim for PTSD in April 2011. The claim was ultimately granted by a March 2012 rating decision. The Veteran was assigned an initial disability rating of 70 percent, effective April 2011. A February 2013 rating decision continued the 70 percent rating. The Veteran timely appealed. Psychiatric disorders are evaluated under the General Rating Formula for Mental Disorders, in pertinent part, as follows: 70 percent: 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 that is 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. 100 percent: 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, for the veteran’s own occupation, or own name. 38 C.F.R § 4.130, Diagnostic Code 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran’s PTSD is currently evaluated as 70 percent disabling. A higher disability rating would require that the Veteran’s PTSD symptoms demonstrate total occupational and total social impairment. The Board finds that during the pendency of the appeal, the Veteran’s PTSD symptoms do not demonstrate total social impairment. Prior to the private PTSD Disability Benefits Questionnaire (DBQ) and medical opinion completed by Dr. Heather Henderson-Galligan, PhD in February 2017, the Veteran was provided a VA examination in December 2012. The December 2012 examiner and Dr. Henderson-Galligan found that the Veteran’s mental disability caused social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, but did not cause total occupational and total social impairment. The Board notes that Dr. Henderson-Galligan indicated the Veteran reported that his PTSD symptoms included persistent danger of hurting self or others and intermittent inability to perform activities of daily living. However, the record does not support that the Veteran was a danger to self and or others. The Doctor also reported that the Veteran only needed assistance or reminders with some activities of daily living. No medical professional including Dr. Henderson-Galligan, reported that the Veteran’s PTSD symptoms caused total social impairment. As such, the Board finds that both examiners ultimately concluded that the Veteran’s psychiatric symptomatology was more consistent with a 70 percent rating. While the Veteran and lay statements submitted on his behalf assert that his symptoms (including withdrawn and socially isolated), are more disabling than currently accounted for by his 70 percent disability rating. The Board finds that the Veteran’s description of symptoms during treatment and examination, coupled with the objective medical evidence, do not support such an assertion. Essentially the evidence fails to show total social impairment. During the course of the appeal, the Veteran has been married for over 45 years and resides with his wife, adult daughter and grandchild. During the 2017 DBQ, the Veteran reported attending VA group therapy every other week. Moreover, a group member provided a 2016 lay statement in support of the Veteran’s claim. The group member identified himself as a friend of the Veteran and indicated that they go to restaurants together. As such, it cannot be said that the Veteran is totally socially impaired. As noted above, a 100 percent schedular rating for PTSD requires the psychiatric symptomatology to cause both total social and total occupational impairment. Here, the Board is not suggesting that the Veteran does not experience social impairment, quite the opposite. However, the 70 percent rating he currently receives for his psychiatric impairment contemplates an inability to establish and maintain effective relationships. Accordingly, a total disability rating for PTSD is not found to be warranted. 2. TDIU In June 2012, the Veteran submitted a statement in support of claim, noting that he wanted to apply for unemployability. The Veteran’s Application for Increased Compensation Based on Unemployability received in January 2014 claimed that PTSD prevented him from securing or following any substantially gainful occupation. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. In this case, the Veteran is currently service connected for PTSD at 70 percent disabling, tinnitus at 10 percent disabling, and hearing loss evaluated at 0 percent disabling. The Veteran’s combined evaluation of 70 percent meets the schedular requirements for individual unemployability. The Board finds that resolving all reasonable doubt in favor of the Veteran, his service connected disabilities are of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. The Veteran’s psychologist Dr. Henderson-Galligan indicated in February 2017 that the Veteran’s PTSD resulted in continuous struggles with depressed mood, hypervigilance, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, poor interpersonal skills and workplace trust issues that would result in an increase in paranoia causing the Veteran to struggle with appropriate work interaction. Dr. Henderson-Galligan reported that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. Vocational consultant Stephanie Barnes, after reviewing the Veteran’s claims file, reported in March 2017 that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service connected PTSD, tinnitus and bilateral hearing loss. the Board concludes that the evidence for and against TDIU is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran’s behalf, and the claim for TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel