Citation Nr: 18143945 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-32 654 DATE: October 22, 2018 ORDER A rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s PTSD manifested symptoms productive of occupational and social impairment with deficiencies in most areas; symptoms productive of total occupational and social impairment was not shown. 2. The Veteran is currently service-connected for PTSD, rated at 70 percent; tinnitus rated at 10 percent; and right ear hearing loss, with a noncompensable rating. 3. The competent evidence reasonably establishes the Veteran’s service-connected disabilities are of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411. 2. The schedular requirements for TDIU are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from April 1969 to April 1972. 1. Entitlement to an increased rating for service-connected PTSD The Veteran’s PTSD is assigned a 50 percent rating under DC 9411. The Veteran contends he is entitled to a higher rating. Under DC 9411, 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 work-like setting); or inability to establish and maintain effective relationships. 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; or memory loss for names of close relatives, own occupation, or own name. Resolving reasonable doubt in favor of the Veteran, the Board finds the evidence during the appeal period supports the Veteran’s PTSD symptoms more nearly approximated deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. The Veteran filed a claim for an increased rating for his service-connected PTSD in January 2014. A January 2014 private treatment visit noted continued issues in crowds and maintaining relationships. He reported not participating in any social activities. He reported obsessive thoughts about being in danger. He denied suicidal thought, homicidal thought, paranoia, or delusions. A July 2014 VA examiner opined the Veteran’s PTSD produced occupational and social impairment with reduced reliability and productivity. He reported a good relationship with his wife and children. He reported he got along okay with his siblings because he did not see them often. He reported avoiding family functions. He reported he last worked as a school custodian and had difficulties getting along with some of the school staff. He reported being unable to trust people because during Vietnam he could not tell a friend from an enemy. He reported persistent guilt and feelings of detachment. He reported being irritable and less tolerant. He reported increasing problems with forgetfulness and concentration. He reported occasional suicidal ideation, without plan or intention. He reported enjoying the outdoors and watching television. The examiner noted the symptoms of depressed mood, anxiety, chronic sleep impairment, and difficulty adapting to stressful situations. The examiner observed his mood was depressed and anxious, affect was restricted, speech was normal, and thoughts were organized. August 2014 and December 2014 private treatment visits reported anxiety, hypervigilance, flashbacks, nightmares, and not socializing. The examiner observed the Veteran’s appearance to be anxious and disheveled with normal thought processes. He denied suicidal thought, homicidal thought, paranoia, or delusions. A May 2015 VA examiner opined the Veteran’s PTSD symptoms would produce occupational and social impairment with reduced reliability and productivity. The Veteran reported a good relationship with his wife, children, and grandchildren. He reported assisting 3 to 4 customers with lawncare. He reported attending church on a weekly basis. The examiner noted the symptoms of depressed mood, anxiety, suspiciousness, and difficulty establishing and maintaining effective work and social relationships. The examiner observed the Veteran to be appropriately groomed in slightly disheveled clothing, attitude was cooperative, but suspicious and guarded, speech was unremarkable, mood was anxious, affect was appropriate, thought content was paranoid, insight was fair, and judgement was fair. The Veteran denied suicidal ideation, homicidal ideation, or hallucinations. A March 2018 VA examiner opined the Veteran’s PTSD produced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran reported not liking to visit with people, even his sister. He reported attending weekly church with his wife. He denied suicidal ideation, homicidal ideation, or hospitalizations. The Veteran’s wife reported he does not want to go anywhere. She reported he forgets names and is emotionally detached. The examiner noted the symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory problems, flattened affect, disturbances in motivation and mood, difficulty adapting to stressful situations, and neglect of personal appearance and hygiene. The Board gives great probative weight to the March 2018 VA examination opinion that the Veteran’s PTSD produced occupational and social impairment with deficiencies in most areas. The Board finds this opinion most consistent with the lay statements of the Veteran and his wife regarding the frequency and severity of his PTSD symptoms. The Board gives limited probative weight to the July 2014 and May 2015 VA examiner opinions that the Veteran’s PTSD produced occupational and social impairment with only reduced reliability and productivity. The Board finds the frequency and severity of symptoms reported by the Veteran during that time period produced more severe occupational and social impairment. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s PTSD produced occupational and social impairment with deficiencies in most areas for the entire appeal period. The preponderance of the evidence does not support total occupational and social impairment due to PTSD during the appeal period. Although the Veteran was not able to maintain employment, he was able to maintain relationships with family, perform lawncare services for hire, and attend church on a regular basis. Treatment records consistently observed his affect was appropriate, speech was normal, thought processes were logical, and judgement and insight were adequate. In addition, when looking to the 100 percent rating criteria, the record does not support a manifestation of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or memory loss for names of close relatives, own occupation, or own name. The Board recognizes the list of symptoms under the rating criteria 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; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Accordingly, a rating in excess of 70 percent, but no higher, for PTSD is granted for the entire appeal period. 2. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s service-connected compensable disabilities have a combined evaluation for compensation of 70 percent or greater, with at least one disability rated at 40 percent or greater. As such, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16(a), are satisfied. The Veteran contends his service-connected disabilities render him unemployable. On review of the record, the Board finds that such is reasonably shown. The evidence reflects the Veteran last worked full-time in 2011. He performed some minimal lawncare work for hire in the interim. The question of unemployability is a legal determination. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). The Board finds the combination of his unpredictable PTSD symptoms, persistent tinnitus, and resulting sleep problems make it unlikely the Veteran could maintain concentration or work a regular schedule that is required to maintain full-time employment. (Continued on the next page)   Given the foregoing body of evidence, resolving reasonable doubt in the Veteran’s favor, the Board concludes that the evidence supports a finding that his service-connected disabilities preclude him from securing or following substantially gainful employment. Therefore, the criteria for establishing entitlement to TDIU are met. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel