Citation Nr: 18141585 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 14-24 148A DATE: October 11, 2018 ORDER Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with reduced reliability and productivity. 2. The Veteran as likely as not is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.125, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1970 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an increased rating for PTSD When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. §4.126(a) (2017). The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. §4.130, Diagnostic Code 9411. When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. §4.126(b). In relevant part, the rating criteria are as follows: A rating of 50 percent is assigned for 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-term 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 rating of 70 percent is assigned for 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 rating of 100 percent is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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 Veteran filed a claim for an increased rating for PTSD in January 2012. The Veteran underwent an examination in April 2013. At the time, the Veteran had recently been divorced due to continual fighting, although it was noted to be largely due to his wife’s drinking habits. The Veteran continued to report a great relationship with at least one daughter, and noted that he enjoyed spending time with her two children. In addition, he noted spending time with his other children, all of whom lived nearby. He was reportedly able to attend family functions, although he conceded that noise and commotion often created difficulties. He added that he had a few friends with whom he spends time, although other hobbies continued to be limited to spending time alone watching television. In VA Medical Center treatment records between May 2012 and December 2013, the Veteran reported on-going symptoms of depression, anxiety, irritability and anger which he regulated rated at a 5 out of 10 or greater. There was reported evidence of occasional angry outbursts. In addition, he noted chronic sleep impairment interrupted by nightmares. Socially, he had finalized the divorce with his second wife, and during the course of appeal re-located to another state to live with his brother. However, there was no evidence of psychosis. Upon review of the record, the Board finds that the Veteran’s psychiatric symptoms were not productive of occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 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.” Id. at 118. Here, impaired judgment was not shown, there was no evidence of suicidal or homicidal ideation, obsessional rituals interfering with routine activities, impaired impulse control, or neglect of personal appearance, as the Veteran was consistently described in VA Medical Center records as adequately dressed and appropriately groomed. There was no evidence of impairment in speech patterns, inability to function independently, persistent impairment in thought process or content, evidence of delusions or hallucinations, or any disorientation. The April 2013 VA examination noted occupational and social impairment with occasional decrease in work efficiency. Accordingly, the Board finds that the symptomatology does not more nearly approximate the criteria for a rating in excess of 50 percent for PTSD, and the appeal is denied. 2. Entitlement to TDIU In his August 2011 TDIU formal application, the Veteran stated that he was last employed in March 2010 as a welder/fitter. He documented that his highest level of education was a General Equivalency Diploma (GED). VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §4.16(a). The Veteran is service connected for PTSD, rated as 50 percent disabling; diabetes mellitus with skin changes, rated as 20 percent; neuropathy of both lower extremities, each, rated as 10 percent disabling; and lumbar strain, rated as non-compensable. His combined disability rating for all service-connected disabilities is 70 percent. As such, the schedular requirements set forth in 38 C.F.R. § 4.16(a)(2) for consideration of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(2). In a June 2013 VA treatment report, a VA nurse noted the Veteran was unemployable due to mental health and physical symptomatology. The Board has considered the Veteran’s prior work history, education level, and the combined effects of his PTSD, lower extremity neuropathy, diabetes, and back strain. His physical impairments, including bilateral lower extremity neuropathies would impact his ability to walk long distances or stand for long periods as would be required in any type of welding or pipe fitting job. His PTSD symptomatology would affect his ability to get along with people and motivation. Resolving all doubt in the Veteran’s favor, the Board finds the Veteran’s combined service-connected disability picture renders him unemployable and entitlement to a TDIU is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis