Citation Nr: 18144413 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-22 701 DATE: October 24, 2018 ORDER Entitlement to a rating of70 percent rating prior to November 13, 2014, for service connected PTSD is granted. Entitlement to an effective date prior to November 13, 2014 for the award of total disability due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD has been manifested by symptoms such as anxiety, depression, sleep impairment, social isolation, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and disturbances of motivation and mood; all resulting in occupational and social impairment with deficiencies in most areas. 2. From October 10, 2010, the evidence of record shows the Veteran met the schedular threshold for a TDIU and was unable to obtain and maintain substantially gainful employment due to his PTSD. CONCLUSIONS OF LAW 1. The criteria for a 70 percent from October 10, 2010, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. From October 10, 2010, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.340, 4.1, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from March 1974 to February 1977. Unfortunately, the Veteran died in January 2017; the Appellant is the Veteran’s wife, who has been recognized as the substitute claimant pursuant to 38 U.S.C. 5121A and 38 C.F.R. § 3.1010(b). 1. Entitlement to a rating in excess of 50 percent prior to November 13, 2014 and in excess of 70 percent thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran’s PTSD has been evaluated using Diagnostic Code 9411 of 38 C.F.R. § 4.130, which sets forth criteria for evaluating post-traumatic stress disorder using a general rating formula for mental disorders. Pertinent portions of the general rating formula for mental disorders are as follows: 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................................................................................................50 percent 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); inability to establish and maintain effective relationships............70 percent 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..........................................................................................................100 percent Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders.) Id. As an initial matter, the Board notes that, effective August 4, 2014, VA promulgated an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated DSM references by deleting references to the DSM-IV and DSM-IV Text Revision and replacing them with references to the updated version, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. 79 Fed. Reg. 45,093-02 (Aug. 4, 2014). This rule expressly states that its provisions do not apply to claims that have been certified to or were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit prior to August 4, 2014. Accordingly, because the Veteran’s appeal had not yet been certified or transferred to the Board in August 2014, the DSM-V version applies in this case. The Appellant contends that the 70 percent rating assigned in the March 2016 rating decision be retroactive to October 2010, when the Veteran initially filed his claim for PTSD. Relevant VA treatment records show the Veteran experienced several mental health symptoms including anxiety, suicidal ideation, social isolation, flat affect, depression, auditory hallucinations, and nightmares. He participated in individual and group therapy; however, did not always complete the programs as he felt they did not help. Specifically, he indicated that he felt group counseling reactivated his symptoms of depression, passive suicidal ideation, anger, irritability, and social isolation. He was hospitalized in September 2011 for suicidal ideation. He was on medication for anxiety and other symptoms; in January 2012, he denied any active PTSD, depression or suicidal/homicidal ideation. However, in September 2012, a treatment note indicated he got drunk and fought with his wife and son. A private physician conducted an evaluation of the Veteran and provided an opinion in March 2015 noting that he had extreme symptoms even while medicated, based on results of a VA PTSD assessment showing 75 out of 85 points. The Veteran was afforded a VA examination in May 2011 and reported that following an assault during service, he lost his self-worth and career. He began drinking and using drugs to cope with his feelings; at the time of the exam, he had been sober for five years. He described his relationship with his wife as just “okay”; they had trust and communication problems. He also noted that his son was financially irresponsible and often required help raising his children. He had no friends, rarely visited family, avoided talking on the phone and leaving his house. When he did leave the house, he steered clear of men; he also felt that people were talking about him and thought he was crazy. He reported nightmares at least once a week. He denied suicidal ideation but noted that he would not mind if he died. His symptoms caused moderate to severe interference with various activities of daily living, including household chores, shopping, sports/exercise, traveling, driving, and other recreational activities. His concentration and memory were mildly impaired. Overall, the examiner found the Veteran had severe, chronic PTSD, which caused significant distress or impairment in social, occupational, or other important areas of functioning. He became isolated and withdrawn; he was distrustful of people and constantly on guard. He had no friends and felt distant from his own family. During the May 2015 VA examination, the Veteran reported fluctuating symptoms since his last exam and he did not see any improvement. His medications did not offer any relief, rather, he indicated they made him calmer and want to be alone and quiet. His symptoms included depressed mood, hopelessness, isolationism, agitation/irritability, and anhedonia (inability to feel pleasure.) On examination, the Veteran endorsed other symptoms after prompting by the examiner. He indicated that he thought about his past trauma daily and when he was unable to block it out, it made him angry. He had dreams about the event once per week and experienced fights in his sleep. Although he reported avoiding new stories regarding sexual assault, after viewing, he felt sorry for the victim and anger toward the perpetrator. He also endorsed feelings of guilt and personal blame related to his trauma; it impacted the way he viewed the world and himself. He noted daily agitation due to others attempting to tell him what to do. He also reported being easily startled. He experienced depression and hopelessness almost daily; he realized that he was not who he used to be The examiner reviewed the claims file and summarized the most probative records in the examination report. The examiner found the Veteran to be a fair informant but also noted that he may have embellished some of his symptoms, as he was quick to endorse symptoms suggested to him by the examiner. Ultimately, the examiner indicated the Veteran’s level of occupational and social impairment resulted in reduced reliability and productivity. In June 2016, a private, licensed professional counselor submitted an opinion detailing the severity of the Veteran’s PTSD symptoms from August 2010. Specifically, she noted that he reported feelings of anxious mood, hopelessness, passive suicidal ideation, sadness and crying spells in late 2010. She also detailed functioning assessments, which were indicative of severe impairment. Based on her review of his file, she noted that the Veteran’s symptoms were more consistent with a 70 percent rating beginning in 2010. Furthermore, she indicated that the Veteran would have been unable to secure and follow substantially gainful employment as a result of the above-mentioned symptoms since at least 2010. Based on the foregoing, the Board finds that for the entire appeal period, a 70 percent rating is warranted. In accordance with Mauerhan and Vazquez-Claudio v. Shinseki, F.3d 112, 117 (Fed. Cir. 2013), the Board recognizes that the Veteran has demonstrated a wide range of psychiatric symptoms, including anxiety, depression, insomnia, irritability, mildly impaired memory, intrusive thoughts, avoidance, feelings of detachment, restricted affect, social isolation, auditory hallucinations, and suicidal ideation. After carefully reviewing the nature of these symptoms and assessing their frequency and severity, the Board finds that the criteria for a 70 percent rating have been met for the entire appeal period. Of particular significance in this determination, the overall summary of his PTSD by the May 2011 VA examiner was that the Veteran demonstrates severe, chronic PTSD, which caused significant distress or impairment in social, occupational, or other important areas of functioning which fits the 70 percent diagnostic code criteria. Furthermore, because the symptoms reported during each of his VA psychological examinations are relatively similar in nature, severity, and duration and the Board can find no temporal demarcation of an increase occurring at a specific time during the appeal period the Board finds that staged ratings are not appropriate and instead resolves doubt in the Veteran’s favor and finds that the 70 percent rating criteria have been met throughout the appeal period. However, the Board finds that his PTSD symptoms do not more nearly approximate the rating criteria for the next higher, 100 percent rating. In this regard, the Board finds that the symptoms above have not more nearly approximated total occupational and social impairment. For example, the May 2015 VA examiner concluded the Veteran had occupational and social impairment resulted in reduced reliability and productivity, which is consistent with a 50 percent rating. Nonetheless, as noted, the Board finds that overall the evidence more nearly approximates a 70 percent rating. The level of social functioning discussed above and demonstrated in examinations and treatment records throughout the appeal period is not compatible with a finding of total occupational and social impairment. The Veteran reported avoiding other men due to his assault during service and some impairment in concentration. However, after analyzing the symptoms and their effects under the tenets of Mauerhan and Vazquez-Claudio, the evidence simply fails to demonstrate that his symptoms were of such a severity and frequency so as to result in occupational and social impairment of the nature described by a 100 percent rating at any time during the appeal period. Thus, notwithstanding the wide range of reported symptoms during the appeal period, the above evidence ultimately suggests an overall impairment more nearly approximating occupational and social impairment equal to that of a 70 percent rating, and no higher, for PTSD. 2. Entitlement to an effective date prior to November 13, 2014 for the award of a TDIU. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 3.321. 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. 3 8 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is only service connected for PTSD at 70 percent, effective October 5, 2010, as noted above. Thus, the threshold requirements for a TDIU are met. 38 C.F.R. § 4.16(a). The Veteran was granted total disability evaluation based on a TDIU rating in March 2016 with an effective date of November 13, 2014 - the date he was assigned a 70 percent rating for his PTSD. The main question before the Board is whether prior to November 13, 2014, the Veteran’s service-connected PTSD precluded him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore, supra. The Veteran first applied for service connection for PTSD in October 2010. The RO granted service for PTSD in a September 2011 rating decision, assigning a 30 percent rating with an effective date of October 5, 2010. The Veteran submitted a notice of disagreement and the RO increased the rating to 50 percent in an April 2014 rating decision. After continuing the 50 percent in a May 2015 rating decision, the RO assigned a 70 percent rating for PTSD in a March 2016 rating decision, effective November 13, 2014. Although the Veteran first filed a claim for TDIU in December 2013, his PTSD appeal arguable included a claim for TDIU; therefore, the Board will assume that the earliest potential effective date for the award of a TDIU is October 5, 2010 – the effective date of the Veteran’s PTSD rating. Upon review of the record, the Board finds that during the entirety of the appeal period, the Veteran was unemployed. Specifically, in his TDIU application he reported that he last worked full time in 1995 and lost significant time from work due to his illness. However, in his reports to examiners he indicated that he retired in 2004. The May 2011 VA examiner indicated that the Veteran’s psychosocial functioning had been impaired for many years; he stayed at home unless he had to go out for medical appointments. The examiner also described his drug and alcohol abuse as a problem secondary to his mental health condition, which also negatively impacted social, occupational, legal and financial functioning. In recent years, he maintained his sobriety, however, there was little improvement in social and emotional functioning. Specifically, he had grown accustomed to isolation. On review of the evidence of record, the Board finds that his service-connected disabilities rendered him unable to secure or follow substantially gainful employment. 38 C.F.R. § 4.16(a). As such, a TDIU from October 10, 2010 is granted. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel