Citation Nr: 18141853 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-11 482A DATE: October 11, 2018 ORDER Entitlement to an initial disability rating of 70 percent for service-connected posttraumatic stress disorder (PTSD) is granted throughout the entire period on appeal, excluding the period of temporary total evaluation, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The evidence shows that throughout the entire period on appeal, the Veteran’s symptoms and overall impairment caused by the Veteran’s service-connected PTSD more nearly approximate occupational and social impairment with deficiencies in most areas, but do not approximate total occupation and social impairment. 2. The Veteran’s service-connected PTSD precludes the ability to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but not higher, for the Veteran’s service-connected PTSD, have been met throughout the pendency of the claim. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9411 (2018). 2. The criteria for a TDIU are met. 38 U.S.C §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.16, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1966 to August 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2013 rating decision by the Boise, Idaho Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO granted service connection for PTSD and assigned an evaluation of 30 percent. The Veteran filed a timely notice of disagreement (NOD) with the initial rating assigned. In a December 2013 rating decision, a temporary evaluation of 100 percent for PTSD was assigned because of hospitalization over 21 days and an evaluation of 50 percent was assigned from February 1, 2013. This created a staged rating and the Veteran has not indicated satisfaction with the higher initial ratings that have been granted. The Board will therefore address the claim. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). The Veteran timely filed a substantive appeal, via a VA Form 9 where he requested a Board hearing. However, in April 2017, the Veteran withdrew his hearing request. The issue of entitlement to a TDIU has been raised by the evidence of record as part and parcel of the claim for a higher rating for PTSD, and a formal application form (VA Form 21-8940) with pertinent information is of record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). 1. Entitlement to an initial disability rating for service-connected PTSD in excess of 30 percent prior to February 1, 2013 and in excess of 50 percent thereafter; excluding a period of temporary total evaluation. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 of adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran contends that he is entitled to a higher evaluation for his service-connected PTSD. As noted above, he is currently rated as 30 percent disabling prior to February 1, 2013 and 50 percent disabling thereafter under 38 C.F.R. § 4.130, DC 9434-9400. Under the General Rating Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned when 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; in difficulty establishing effective work and social relationships. Id. A 70 percent rating is warranted 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 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. Id. When determining the appropriate disability rating 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 ward a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-24 (Fed. Cir. 2004). Nevertheless, 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. During a January 2012 social work assessment, the Veteran reported that he struggled during stressful periods with suicidal ideation. A December 2012 VA examination report reflects that the examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. On examination, psychiatric symptoms included: depressed mood; anxiety; and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported a distant relationship with his children which he attributed to his irritability over the years. He described a good relationship with his wife. He reported having few friends and described himself as being isolated socially. He reported that he had a bachelor’s degree and worked as a cowboy and veterinarian for the past 25 years. He reported periodic conflict with his boss and several on-the-job accidents which partially were most likely related to poor attention. He reported no missed time from work due to mental health problems. In 2012 statements from the Veteran’s friends and family, they reported that he was distant, short-tempered, angry, anxious, controlling, and could be violent. Additionally, they reported that he did not like social gatherings, had an inability to interact with people for many years, showed reckless behavior, and created a stressful work environment. VA treatment records from 2013 reflect that the Veteran’s psychiatric symptoms included anxiety, difficulty with thought processes, difficulty with concentration, sleep impairment, and difficulty with his work environment. In an April 2014 statement, the Veteran reported that he was experiencing increased anxiety attacks and more issues dealing with people. A September 2014 VA examination report reflects that the examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Psychiatric symptoms included depressed mood, anxiety, suspiciousness, and flattened affect. He presented with good personal hygiene; his sensorium was clear; he was oriented to person, place, and time; eye contact and speech were normal; thought processes were logical and coherent without evidence of preoccupations, delusions, or obsessions; impulse control was sufficient; judgment was unimpaired; denied experiencing hallucinations; affect was exaggerated; and mood was anxious. The examiner found that there have been no significant changes since Veteran’s previous examination. The Veteran reported getting an average of 10 hours of sleep per day. He reported some difficulties falling asleep due to ruminations and racing thoughts. He reported occasional nightmares that have reduced in frequency to two to three times per month. When asked to describe his mood, he reported that he felt slightly depressed and apathetic all the time. He denied any manic episodes since his previous evaluation. He described periods of irritability as well as tendency to isolate from others. He reported that he will get “worked up” and “run away” from others. He reported that in general he avoided almost everyone. He reported a strong sense of suspicion towards others which bordered on paranoia. He described his motivation as average and endorsed difficulties with anger and irritability. He reported that he was still angry with former coworkers for perceived injustices. He reported that he felt anxious two to three times a day. He reported difficulties with concentration. He denied current suicidal ideation but stated that he most recently experienced fleeting suicide ideation without a plan approximately a month ago. He reported homicidal ideation during the last year without a plan or intent towards his previous co-workers. He denied current homicidal ideation. The Veteran rated his current level of stress at a five or six out of 10 and reported that it was a nine out of 10 when he was at work. The Veteran was unemployed. Up until 2014, he was working as a veterinarian for a ranch in Idaho. He worked that job since 1988 and noted that he enjoyed it very much because he rarely had to interact with other people. The Veteran reported that disagreements with co-workers led him to leave this position. He reported that he felt old and he was very suspicious and distrusting of his co-workers. The Veteran reported that he recently lost his veterinarian license which he attributed to the fact that he was forthcoming about his mental health issues. He was not currently seeking employment. In a December 2014 statement, the Veteran reported that he had to quit his job, had suicidal tendencies, and did not have any friends. Private psychiatric treatment records from 2014 reflect that the Veteran experienced suicidal ideation with worsening PTSD, difficulties with social interaction, feelings of hopelessness, and sleep impairment. A December 2016 Disability Benefits Questionnaire (DBQ) report reflects that the examiner found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. His psychiatric symptoms included: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; impairment of short and long-term memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. The examiner found that the Veteran’s symptoms of intrusions of painful memories of the trauma and his poor concentration impaired his attention to focus on work tasks. The examiner reported that he tends to be avoidant to the extent that he avoids people because he became anxious and irritable. He would also fly into anger and rage which scared him into thinking he was going to hurt somebody at times. The examiner found that this emotion tendency is likely to impair work relationships and teamwork. Additionally, he found that the Veteran’s poor negative alterations in mood lead to insomnia which could lead to decreased energy and focus on work tasks. Upon review of the evidence of record, the Board finds that the Veteran’s PTSD more nearly approximate the criteria required for a 70 percent disability rating, but no higher, throughout the entire period on appeal. As noted above, the evidence of record reflects that the Veteran had suicidal ideation, anxiety with weekly anxiety attacks, feelings of hopelessness, and difficulty with intimate and social relationships. Additionally, he had low motivation, suspiciousness, and difficulty maintaining effective work relationships. The Court recently reiterated, “VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). As such, the Board finds that the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected psychiatric disability. See id. at 20 (the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). The Board has also considered whether the evidence supports a rating of 100 percent. The Veteran’s symptoms and overall level of impairment did not, however, more nearly approximate the total occupational and social impairment required for a 100 percent rating. The Veteran maintained a relationship with his wife, remained oriented to time and place, and was consistently able to perform activities of daily living. The Veteran never reported any delusion or hallucinations, and while he had some homicidal ideation, this ideation was not shown to be persistent and the evidence does not show that he was a danger to himself and others. There were no other symptoms listed in the criteria for a 100 percent rating and the Veteran’s relationships reflect that the symptoms he did have did not result in social impairment more nearly approximating the total impairment listed in the criteria for a 100 percent rating. For the foregoing reasons, an initial rating of 70 percent, but no higher, for PTSD, is warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Entitlement to a TDIU Under 38 C.F.R. § 4.16 (a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran’s single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a)(2). The Veteran is service-connected for PTSD, now rated as 70 percent disabling; tinnitus, rated as 10 percent disabling; hearing loss, right ear, rated as noncompensable; and hypertension associated with PTSD, rated as noncompensable. His combined rating is 70 percent; therefore, the Veteran meets the minimum schedular requirements for TDIU benefits. 38 C.F.R. § 4.16(a). The Veteran contends that his service-connected PTSD precludes him from securing or following substantially gainful employment. During the December 2012 VA examination, the Veteran reported periodic conflict with his boss and several on-the-job accidents which partially were most likely related to poor attention. He reported no missed time from work due to mental health problems In a March 2013 letter from the Veteran’s employer at the time, he reported that over the years, there were confrontations between them. He reported that the Veteran could be very unpredictable—one minute he was friendly, and the next minute he could be very aggressive. He reported that this kind of confrontation could be uncomfortable and scary. In a November 2014 letter from a co-worker, he reported that he worked with the Veteran for the past 25 years. He reported that one day, the Veteran would be friendly and five minutes later, he would get his horse and tear off. He reported that there were times that the Veteran would unnecessarily put himself and others in dangerous situations and never seemed to feel any remorse for what he has done. He described the Veteran as antagonistic and when anyone would try and address his behavior, he would just “blow up.” He stated that there were good times and bad times working with the Veteran. In a July 2014 notification of denial of application from the State of Idaho Board of Veterinary Medicine, the Idaho Board voted to deny the Veteran’s application to renew his license to practice veterinary medicine. The Idaho Board reported that the Veteran did not provide a statement from medical providers assessing his current physical or mental competency. However, they found that the Veteran frankly admitted in his application that he suffered from a current condition that impaired his ability to competently and safely practice veterinary medicine. During the September 2014 VA examination, the Veteran reported that he was unemployed. As noted above, up until 2014, he was working as a veterinarian for a ranch in Idaho. The Veteran reported that disagreements with co-workers led him to leave this position. He reported that he felt old and he was very suspicious and distrusting of his co-workers. The Veteran reported that he recently lost his veterinarian license which he attributed to the fact that he was forthcoming about his mental health issues. He was not currently seeking employment. In the December 2016 DBQ report, the examiner opined that the Veteran’s symptoms of intrusions of painful memories of the trauma and his poor concentration impaired his attention to focus on work tasks. The examiner reported that he tends to be avoidant to the extent that he avoids people because he became anxious and irritable. He would also fly into anger and rage which scared him into thinking he was going to hurt somebody at times. The examiner found that this emotion tendency is likely to impair work relationships and teamwork. Additionally, he found that the Veteran’s poor negative alterations in mood lead to insomnia which could lead to decreased energy and focus on work tasks. Upon review of the evidence of record, the Board finds that a TDIU is warranted. The Veteran’s record indicates that he has a bachelor’s degree. The Veteran has reported that his PTSD precludes him from gainful employment. These statements are competent and credible and the Board notes that whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). The Veteran has not been employed since approximately 2014. Although the Veteran’s bachelor’s degree could qualify him for some types of sedentary work, he reported, and the evidence reflects, that his symptoms hindered him from remaining employed. Furthermore, the Veteran is not trained in any type of employment that he could perform consistent with the impairment caused by his current PTSD, as indicated by his limited work history. All of his work experience is on the ranch as a veterinarian. Moreover, the Veteran lost his license to practice as a veterinarian due to his PTSD. Finally, the December 2016 DBQ examiner noted the Veteran’s significant limitations in a work environment. Given the Veteran’s relatively limited occupational history and the significant limitations caused by this PTSD, the Board finds that he is unable to secure and follow a substantially gainful occupation due to his service connected PTSD. Entitlement to a TDIU is therefore warranted. 38 C.F.R. § 4.16(a). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel