Citation Nr: 18143686 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-14 865 DATE: October 23, 2018 ORDER An increased rating of 70 percent from June 12, 2014 and continuing thereafter for the Veteran’s service-connected acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder is granted. A total disability rating based on individual unemployability (TDIU) due to the Veteran’s service-connected acquired psychiatric disorder is granted. FINDINGS OF FACT 1. With resolution of the doubt in his favor, for the entirety of the rating period on appeal, the Veteran’s acquired psychiatric disorder caused occupational and social impairment with deficiencies in most areas, including speech intermittently illogical, obscure or irrelevant; impaired impulse control; suicidal ideation; near continuous panic or depression; inability to establish and maintain effective relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. 2. With resolution of the doubt in his favor, the Veteran’s service-connected acquired psychiatric disorder made him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish an increased rating of 70 percent for the entirety of the rating period on appeal for the Veteran’s acquired psychiatric disorder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria to establish TDIU due to the service-connected acquired psychiatric disorder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1966 to August 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Huntington, West Virginia Regional Office (RO). The Board has recharacterized the issue on appeal to accurately reflect the Veteran’s psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In July 2018, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. An increased rating of 70 percent for the Veteran’s acquired psychiatric disorder The Veteran is rated 30 percent and 50 percent disabling from July 7, 2010 to June 11, 2014 and from June 12, 2014 and continuing thereafter, respectively, for his acquired psychiatric disorder. The rating period on appeal is from June 12, 2014 and continuing thereafter. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). PTSD is evaluated under the General Rating Formula for Mental Disorders. A 50 percent evaluation is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411 (2017). A 70 percent evaluation is warranted when there is 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 work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is 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. The U.S. Court of Appeals for the Federal Circuit has noted the “symptom-driven nature” of the General Rating Formula and 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.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, if the evidence shows that a Veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. In August 2014, the Veteran was afforded a VA examination. The Veteran reported having a close relationship with his wife, son and three grandchildren. The Veteran “rarely” communicates with his siblings and does not have any social friends. He indicated having acquaintances in a Vietnam Veterans Group that he attends but that he does not trust most of them. The Veteran indicated having felt out of place and detached since his service. He assists his wife with shopping but must pull the shopping cart behind him to prevent others from coming up behind him. He experiences agitation and discomfort with crowds and public places resulting in panic attacks which subsequently cause him to leave to be in an isolated area to “deescalate.” The Veteran reported having panic attacks three times per week lasting from 15 minutes to 1 hour. Helicopter noise, the smell of diesel fuel and the sound of brakes screeching also caused the Veteran to experience panic attacks. The Veteran indicated experiencing a loss of interest and decreased motivation in fishing and building things. His usual activities consist of staying at home, watching television, and spending time with his wife, son and grandchildren. The examiner observed that the Veteran was neatly, seasonally and casually dressed. Although the Veteran was anxious, it was noted that he was alert; made good eye contact; cooperative and well oriented to time, person, place and circumstance. There was no atypical psychomotor movement or expressive or receptive articulation dysfluencies. There was also no impairment in thought process or communication. His stream of thought was linear and persistent. Attention and concentration was intact. Content of thought was logical and goal directed. The Veteran denied having suicidal or homicidal ideation and hallucinations. His short and long-term memory was intact because he had no difficulty recalling chronological life events. The examiner noted that the Veteran had a depressed mood; anxiety; suspiciousness; panic attacks more than once per week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner summarized the Veteran’s combined impairment as occupational and social impairment with reduced reliability and productivity. In his July 2018 Board hearing, the Veteran testified that he is routine oriented and that if a break occurs in his routine, he cannot function which results in depression and panic attacks. He experiences panic attacks at least three times per week. The Veteran conducts nightly “perimeter checks” of his residence before going to sleep and in the middle of the night which results in sleep impairment. The Veteran also testified having trouble frequently finishing a conversation because he will begin another conversation that is irrelevant to the previous conversation. If the Veteran experiences depression or panic attacks, he must isolate himself and use calming techniques he learned at the Vietnam Veterans Group Center. He also testified having impaired impulse control and unprovoked irritability due to his unexplainable reaction to picking up objects in his garage and throwing them, which occurs at least one time per week. Outside of his family, the Veteran testified that he does not maintain or establish social relationships, despite multiple attempts. The Veteran testified that he has a “good relationship” with his wife and could recall his son’s name, age, grandchildren and residence location. The Veteran answered “no, never” to the question of whether there was an occasion where he does not want to take care of himself or take a bathe for a couple of days. The Veteran testified having suicidal ideation three to five years ago – although somewhat now remote in time, this factor during the rating period may suggest occupational and social impairment with deficiencies in most areas and must be considered with other evidence. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In a July 2018 written statement, the Veteran’s wife indicated having trouble following the Veteran’s train of thought. She reported that in the middle of a conversation, the Veteran will talk about an irrelevant topic unrelated to the previous conversation. Occasionally, the Veteran will provide non-sensical answers to her questions. The Veteran’s wife also indicated that the Veteran has trouble making decisions, will confuse instructions, cannot give directions, puts off completing tasks and needs reminders to complete tasks. She also indicated that the Veteran experiences recurrent nightmares of Vietnam, will sit with his back against the wall in public areas and turns violent when he is touched during his sleep. VA treatment records from June 2014 to August 2018 reflect the Veteran’s reports of experiencing sleep impairment due to his nightmares, anxiety and patrolling behaviors. The Veteran also reported his ability to “sometimes” cope with symptoms of his PTSD. He also indicated that “never” enjoys the company of other people. The Board will grant a 70 percent rating for the entirety of the rating period on appeal based on the benefit-of-the-doubt doctrine. The evidence reflects that the Veteran experiences panic attacks three times per week between 15 minutes to 1 hour in duration and that he must isolate himself to “deescalate.” The Veteran reported experiencing impaired impulse control due to his unexplainable reaction to picking up objects in his garage and throwing them, which occurs at least one time per week. In addition, the Veteran is unable to establish and maintain effective relationships outside of his family. Furthermore, the Veteran has difficulty being in public and in crowded places which results in panic attacks that subsequently cause him to leave to be in an isolated area. Moreover, the Veteran testified having suicidal ideations several years ago. Although the August 2014 VA examiner indicated that there was no impairment in the Veteran’s thought process or communication and that his stream of thought was linear and persistent, the Veteran’s wife indicated that she has trouble following his train of thought, he will talk about an irrelevant topic unrelated to a previous conversation and will provide non-sensical answers to her questions. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an increased rating is warranted and the claim is granted. A 100 percent rating is not warranted because the Veteran has denied experiencing hallucinations and could recall the names of his closest relatives. In addition, the Veteran has been observed as adequately groomed and he testified “no, never” to the question of whether there was an occasion where he did not want to take care of himself or take a bathe for a couple of days. Although the evidence reflects an impairment in the Veteran’s communication, it does not rise to the level of “gross” impairment. TDIU Although the Veteran has not expressly indicated that he is unable to work due to his service-connected disorders, the evidence of record indicates that he is unable to work due to his service-connected acquired psychiatric disorder. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU due to a service-connected disability, either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating). TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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 or more. 38 C.F.R. § 4.16(a) (2017). As indicated above, the Board granted a 70 percent rating from June 12, 2014 and continuing thereafter for the Veteran’s service-connected acquired psychiatric disorder. The Veteran is also rated 10 percent disabling for tinnitus. Therefore, the Veteran’s service-connected disabilities meet the percentage threshold in 38 C.F.R. § 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2017). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. Thus, the central question is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the August 2014 VA examination, the Veteran reported experiencing agitation and discomfort with crowds and public places resulting in panic attacks which subsequently cause him to leave to be in an isolated area to “deescalate.” He indicated that his panic attacks occur three times per week and last 15 minutes to 1 hour. Significantly, the VA examiner indicated that the Veteran would have difficulty adapting to stressful circumstances, including work or a work-like setting. The Veteran testified that he frequently has trouble finishing a conversation because he will begin another conversation that is irrelevant to the previous conversation. He also testified to having impaired impulse control and unprovoked irritability. Furthermore, the Veteran’s wife also indicated that the Veteran has trouble making decisions, will confuse instructions, cannot give directions, puts off completing tasks and needs reminders to complete tasks. (Continued on the next page)   Although the August 2014 VA examiner indicated that providing an opinion as to whether the Veteran’s service-connected disabilities render him unemployable is outside of her scope of expertise, the evidence of record indicates that the Veteran’s service-connected acquired psychiatric disorder renders him incapable of performing the physical and mental acts required to be employed. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, TDIU is warranted and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel