Citation Nr: 18143796 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-35 013 DATE: October 22, 2018 ORDER Entitlement to an initial increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s PTSD symptoms have not been manifested by total occupational and social impairment. 2. The Veteran’s service-connected PTSD has precluded gainful employment throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2015 and January 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Offices (RO). I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds there exist no deficiencies in VA’s duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159 (b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). II. Entitlement to an initial increased rating in excess of 70 percent for PTSD. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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 (2017). Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous...” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a) (2017). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Veteran contends he is entitled to an initial rating in excess of 70 percent for his PTSD. In a June 2015 rating decision, the Veteran was granted service connection and assigned a 50 percent rating effective March 30, 2015 for his PTSD. The Veteran filed a timely notice of disagreement with the rating assigned. The Veteran was subsequently assigned a 70 percent rating effective March 30, 2015. For the entire rating period the Veteran’s PTSD was evaluated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. The next highest rating of 100 percent is assigned where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Here, the Veteran was afforded a VA examination in May 2015. The examiner noted the Veteran’s occupational and social impairment was evidenced by deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran is currently divorced. He drinks alcohol sometimes as a sleep aide. His PTSD symptoms were noted as having a depressed mood; anxiety; suspiciousness; near-continuous panic affecting the ability to function independently, appropriately and effectively; near-continuous depression affecting the ability to function independently, appropriately and effectively; 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; suicidal ideation; obsessional rituals which interfere with routine activities; and impaired impulse controls. Relevant mental health treatment records reveal the Veteran has been described as being appropriately groomed with a fair level of hygiene. No unusual movements. He has had good eye contact. Speech has been with normal rate. He has always been cooperative with no psychomotor agitation/retardation. Affect has been within normal range and congruent with mood. Thought process and content were always within normal limits. The Veteran has consistently denied any active suicidal or homicidal thoughts or delusions or hallucinations. He has been alert and oriented to person, time, place and situation and he has consistently exhibited fair insight and judgment. Based on the foregoing, the Board finds the record does not reflect the Veteran has suffered from gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. As such, the Board finds the Veteran’s PTSD symptoms do not more nearly approximate to the symptoms set out in the 100 percent rating criteria. As such, the Board finds the Veteran is not entitled to an increased rating and the claim must be denied. III. Entitlement to a TDIU. The Veteran asserts that he is entitled to TDIU due to his service-connected PTSD. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. 4.16 (a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. 4.16 (a). 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, 529 (1993). Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” See Moore v. Derwinski, 1 Vet. App. 356 (1991). For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census (Census), as the poverty threshold for one person. Even where earned annual income exceeds the poverty threshold, marginal employment may exist when the Veteran’s employment is limited to employment in a protected environment, such as a family business, to self-employment, to odd jobs, or to a sheltered workshop. The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by non-service connected disabilities. See 38 C.F.R. 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Veteran is currently service-connected for tinnitus, rated as 10 percent disabling; posttraumatic stress disorder (PTSD), rated as 70 percent disabling; bilateral hearing loss, rated as 20 percent disabling; hypertension, rated as 10 percent disabling; diabetes mellitus type 2, rated as 20 percent disabling; right lower extremity peripheral neuropathy, rated as 10 percent disabling; and left lower extremity peripheral neuropathy, rated as 10 percent disabling. The Veteran asserts he is unable to follow substantial gainful employment on account of his service-connected disabilities, especially posttraumatic stress disorder. In this case, the Veteran meets the threshold requirements for TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Throughout the appellate period, the Veteran had a combined rating of 70 percent or more. With the threshold requirements met, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. In determining whether the Veteran is capable of obtaining and maintaining gainful employment, the Board must consider the Veteran’s work history education, and any special training. The Veteran is a high school graduate. After military service the Veteran went to a trade school for Marine pipe fitting. He worked in a shipyard for 18 years and then worked for a utility company where he retired after 20 years. In the May 2015 VA examination, the examiner noted that the objective evidence demonstrates that the Veteran’s PTSD symptoms effects his functional impairment and causes the Veteran to isolate himself. He does not engage in life. He only leaves his house to go to doctor’s visits. He does not sleep well and is fatigued as a result. He avoids social interactions and situations. Given the Veteran’s credible lay statements regarding the impact of his service-connected PTSD on his ability to work and the functional limitations described by the VA examiner, the Board finds that the Veteran’s service-connected disability likely prevent him from obtaining and maintaining gainful employment. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner). Accordingly, resolving all doubt in favor of the Veteran, the criteria for a TDIU has been met, and the claim is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel