Citation Nr: 18142636 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-33 428 DATE: October 17, 2018 ORDER For the period prior to May 3, 2016, an initial rating of 70 percent, but no higher, for the Veteran’s posttraumatic stress disorder (PTSD) is granted. For the period from May 3, 2016, an initial rating in excess of 70 percent for the Veteran’s PTSD is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. For the period prior to May 3, 2016, and from May 3, 2016, the Veteran’s PTSD has been manifested by symptoms of occupational and social impairment with deficiencies in most areas; symptoms of total occupational and social impairment have not been shown. 2. The Veteran’s service-connected PTSD precludes him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. For the period prior to May 3, 2016, the criteria for an initial disability rating of 70 percent, but no higher, for PTSD were met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Codes 9411 (2018). 2. For the period from May 3, 2016, the criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Codes 9411 (2018). 3. The schedular criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the Army from September 1968 to April 1971. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. Jurisdiction for this appeal currently resides with the RO in Jackson, Mississippi. Entitlement to a TDIU has been raised by the evidence of the record. The Board has characterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to an initial rating in excess of 30 percent for PTSD prior to May 3, 2016, and in excess of 70 percent from May 3, 2016. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2018). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2018). Otherwise, the lower rating will be assigned. Id. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected PTSD is currently rated at 30 percent prior to May 3, 2016, and 70 percent from May 3, 2016 under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, a 30 percent rating is warranted where the psychiatric condition produces 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, mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). A 50 percent rating is warranted where the psychiatric condition produces 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where the psychiatric condition produces 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. Id. A 100 percent rating is warranted where the psychiatric condition results in 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; memory loss for names of close relatives, own occupation or own name. Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21 (2018); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. The Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). However, the amended provisions do not apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the Agency of Original Jurisdiction. The instant appeal was initially certified to the Board in June 2016. Therefore, the amended version of the Schedule for Rating Disabilities is for application in the instant appeal. In March 2014, the Veteran was afforded a VA examination for his PTSD. The VA examiner noted that the Veteran continued to participate in mental health treatment with PTSD group therapy and medication management with psychiatry. The Veteran endorsed chronic symptoms of anxious arousal, anger and irritability, intrusive experiences, depression, and dissociations. The Veteran’s symptoms also included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, and mild memory loss. The Veteran stated that he continued to have problems with bad dreams, social isolation, loss of interest in things that he used to enjoy, and felt on guard all the time and suspicious of others. The Veteran had difficulty with falling asleep and staying asleep. He had intrusive thoughts during the day and problems with extreme anxiety, especially when he went out in public. The Veteran had problems with irritability and road rage. He was easily startled by loud noises and had problems with concentration. However, the Veteran denied thoughts of suicide. The VA examiner noted that the results of the mental status examination were otherwise unremarkable. Upon behavioral observation, the VA examiner noted that the Veteran was on time to his appointment for the examination and had clean clothing on. The VA examiner opined that the Veteran’s PTSD caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In March 2014, the Veteran attended a VA psychiatry therapy session. The patient care technician noted that he had seen the Veteran for the past 13 years. The Veteran had flashbacks, intrusive thoughts, nightmares, and memory disturbances. The Veteran’s nightmares had recently increased. He was very irritable and short-tempered. The Veteran was depressed and agitated most of the time, and he had a few suicidal thoughts. The patient care technician reported that the Veteran felt upset and under a lot of stress. The Veteran had problems with feeling estranged from others and had a restricted range of feelings. It was noted that the Veteran had difficulty establishing relationships and was married twice. The Veteran had 30 or 40 jobs in the last 35 years because of his inability to maintain relationships and deal with authority. The Veteran got very angry with people and co-workers and was unable to work due to his frequent anger and rage spells while at work. The Veteran reported panic attacks about twice a month. He had disturbances in mood and motivation, flattened affect, and circumstantial speech. He was involved in group and individual therapy. The medicine helped minimally. The patient care technician opined that the Veteran was unable to work because of his mental condition. In April 2016, the Veteran sought treatment for continued therapy and medication evaluation through VA. During his psychiatry session, the Veteran stated that he stayed at home and watched television. He had very little tolerance for stress. The Veteran continued to avoid people and stress, and he had difficulty sleeping. He reported moodiness. On mental status examination, the patient care technician noted that the Veteran was acceptably dressed and groomed, and his behavior was cooperative. The Veteran’s speech and thought processes were logical. He did not have delusions, hallucinations, or obsessions/compulsions. His insight and judgement were fair. His cognitive functioning was grossly intact. The Veteran denied suicidal and homicidal ideation or intent. A May 3, 2016 VA psychiatry progress note indicates that the patient care technician report4ed that the Veteran has symptoms of flashbacks, intrusive thoughts, nightmares and memory disturbances due to PTSD. He does not handle stress very well and dissociates mentally. He isolates from people and is depressed most of the time. More difficulty with sleep and nightmares was reported. There was exaggerated startle response and a few suicidal thoughts. Panic attacks were reported about twice a month. There was a flattened affect and circumstantial speech, as well as disturbances in mood and motivation. The patient care technician opined that the Veteran was unable to work because of his mental condition. In an August 2016 VA psychiatry note, the Veteran reported that he had problems with anger and depression. He had trouble with getting his medications. He had been isolating and not bathing. The Veteran had paranoid thoughts about some of his medications. Mental status examination revealed that the Veteran appeared acceptably dressed and groomed. The Veteran’s thought process was logical. His judgment was fair and cognitive ability was grossly intact. The Veteran did not have any delusions or hallucinations. In December 2017, the Veteran was afforded a VA examination for his PTSD. The VA examiner concluded that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported that he was not married and had a son. The Veteran’s son was 43, and June 2016 was the first time the Veteran had seen his son since he was two years old. The Veteran was still in counseling and attending group meetings for his PTSD. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. Upon behavior observation, the VA examiner reported that the Veteran was verbal, articulate, friendly, and outgoing. However, the Veteran seemed anxious in talking about his military experiences. He was oriented in all spheres and his thought processes were logical and goal oriented. He did not have hallucinations or delusions. The Veteran denied homicidal or suicidal ideation. The VA examiner concluded that the Veteran required continued counseling and medication management; however, the Veteran did not appear to pose any threat of danger or injury to self or others. For the appeal period prior to May 3, 2016, the Board finds that a rating of 70 percent is warranted for the Veteran’s service-connected PTSD. The Veteran was continually involved in group and individual therapy. He took medication for his PTSD. The Veteran’s symptoms included depression, anxiety, anger and irritability, chronic sleep impairment, social isolation, and loss of interest in things that he used to enjoy. Although the March 2014 VA examiner opined that the Veteran’s PTSD only caused occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, the Veteran’s therapist at the VA opined that the Veteran was unable to work due to his mental condition. The Veteran had 30 to 40 jobs in the last 35 years because of his inability to maintain relationships and deal with authority. Furthermore, the Veteran’s therapist reported that the Veteran had difficulty establishing relationships. The Board assigns more weight to the VA therapist’s opinion than the VA examiner’s opinion. The Veteran had been seeing his therapist for a number of years. Therefore, the Veteran’s therapist had a better understanding of the Veteran’s disability than the March 2014 VA examiner who only evaluated the Veteran during that specific examination and not over a period of years. As a result, when considering all the other symptoms of record, the Board finds that Veteran’s symptoms most closely approximate a 70 percent evaluation. However, for the period prior to May 3, 2016, and for the period from May 3, 2016, a rating in excess of 70 percent is not warranted. The evidence of record does not support symptoms of total occupational and social impairment. Although it was noted in an August 2016 VA treatment record that the Veteran had been isolating and not bathing, for the majority of the appeal period, the Veteran maintained appropriate appearance and hygiene. The Veteran had fair judgment and logical thought processes. The Veteran did not have delusions, hallucinations, or obsessions/compulsions. Although the Veteran had a few suicidal thoughts, on most of his evaluations, the Veteran denied suicidal or homicidal ideation. He was deemed not to pose any threat of danger or injury to himself or others. The Board has also considered the statements by the Veteran regarding the severity of his mental disability, and acknowledges that he is competent to report the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.159 (a)(2) (2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran do not meet the burden for a higher rating imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of the Veteran’s service-connected PTSD. Also, the Board notes that the Veteran argued that the VA examiner did not adequately assess his condition that presents with flare-ups productive of panic attacks, and difficulty in establishing and maintaining effective relationships, warranting a rating in excess of 30 percent. See August 2018 Appellate Brief. The Board finds the March 2014 and December 2017 VA examinations to be adequate because they were performed by medical professionals based on a review of the claims file, solicitation of history and symptomatology from the Veteran, and examination of the Veteran. Opinions are provided as to the current severity of the PTSD, including occupational and social impairments. In regards to the Veteran’s panic attacks and difficulty establishing and maintaining relationships, it seems that the medical evidence of record as a whole shows the severity of the Veteran’s symptoms. The Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2018); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In conclusion, a rating in excess of 70 percent for the Veteran’s PTSD is not warranted for any portion of the period on appeal. 2. Entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). In reaching such a determination, 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 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2018). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b) (2018); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran’s service-connected PTSD, his only service-connected disability, is currently rated at 70 percent prior to May 3, 2016, and 70 percent thereafter. In this decision, the Board granted a rating of 70 percent prior to May 3, 2016, for the Veteran’s PTSD. For the entire appeal period, the schedular rating requirements for a TDIU, under 38 C.F.R. § 4.16(a), are met. However, finding that a veteran meets the schedular requirements for TDIU is not where the inquiry ends. Instead, it must also be shown that the veteran’s service-connected disability or disabilities render him unable to secure or follow a substantially gainful occupation. Following a review of the evidence, the Board finds that it has been shown that the Veteran’s service-connected PTSD renders him unable to secure or follow a substantially gainful occupation for the entire appeal period. On his December 2017 VA examination, the Veteran reported that he worked at a base as a greenskeeper until 2001. He worked in Kansas on rigs for 20 years. He only went to the ninth grade in high school. He tried to get a GED, but did not complete it. On his March 2014 VA examination, he reported that he was last employed full-time at the Navy base in Gulfport at the golf course in 1999. In a March 2014 VA psychiatry note, the Veteran’s therapist opined that the Veteran was unable to work due to his mental condition. The therapist noted that the Veteran had difficulty establishing relationships, and he had 30 or 40 jobs in the last 35 years because of his inability to maintain relationships and deal with authority. The Veteran got angry with people and coworkers. He was unable to work because of his frequent anger and rage spells while at work. The Veteran’s symptoms also included depressed mood, difficulty sleeping, irritability, intrusive thoughts, and memory disturbances. The Veteran continuously went to counseling and therapy sessions for his disability. The December 2017 VA examiner concluded that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. Based on the foregoing, the Board finds that for the entire appeal period the evidence shows that the Veteran has not been able to work due to his service-connected PTSD. Therefore, entitlement to a TDIU for the entire appeal period is warranted. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel