Citation Nr: 18144521 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-30 671 DATE: October 24, 2018 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Since the effective date of the grant of service connection, the Veteran’s service-connected PTSD symptoms and overall impairment have more nearly approximated deficiencies in most areas, but not total occupational and social impairment 2. The Veteran’s service-connected disability render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a total rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to January 1973 This matter came to the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for PTSD and assigned an initial 10 percent rating effective May 17, 2011. The Veteran timely appealed the initial rating assigned. In a June 2015 rating decision, the RO increased the rating for PTSD to 50 percent, also effective May 17, 2011. Although a higher rating has been granted, this issue remains in appellate status, as the maximum available benefit has not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that in connection with his appeal, the Veteran requested and was scheduled for a videoconference hearing before a Veterans Law Judge, to be held in October 2018. Prior to the hearing, however, the Veteran cancelled his hearing request. PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, 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. The criteria for rating PTSD disorder is contained in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted when there is objective evidence demonstrating 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. A 50 percent rating is warranted when there is objective evidence demonstrating 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, for example, 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. A 70 percent rating is assigned when there is objective evidence demonstrating 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, or 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. A 100 percent rating is warranted when 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 and place, memory loss for names of close relatives, own occupation, or own name. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.” Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Veteran seeks an initial rating in excess of 50 percent for service-connected PTSD. He contends that the rating currently assigned does not reflect the severity of the disability. Applying the facts in this case to the criteria set forth above, the Board finds that an initial rating of 70 percent, but no higher, is warranted for the Veteran’s PTSD. The evidence of record demonstrates that the Veteran’s PTSD is manifested by symptoms that more nearly approximate the occupational and social impairment required for an initial 70 percent rating, but no higher. An October 2011 VA examination report indicates that the Veteran had difficulty in adapting to stressful circumstances, such as a work-like setting. He exhibited impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was irritable and had difficulty concentrating. He slept five hours without medication and reported recurrent nightmares. He reported that he felt detached from others and found it hard to trust people, because they had done him wrong. The Veteran had a loss of interest in activities and tended to isolate himself. The Veteran stated that he had to watch his back at all times and had to watch everyone else around him. With any sudden noise, he finds that he is irritable. The Veteran blocks his front door with bars and he also blocks the windows. He sleeps with a weapon, and indicates that these symptoms have been ongoing since his time in Vietnam. The Veteran had several assaults which were alcohol-related in the past. The examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. In a January 2012 Social Security Administration record (SSA), the Veteran reported that mentally, he gets very depressed and he just cannot be around other people. He indicated that the only way he could be around other people in the past was when he was drunk or high, and now he cannot do it unless he his drunk or high. The examiner noted that the Veteran has difficulty with focus, concentration and task persistence. The Veteran’s VA clinical records throughout the course of the appeal indicates that the Veteran has experienced difficulty sleeping and recurrent nightmares. A November 2012 VA clinical record shows that the Veteran gets upset easily and isolates himself. He stated that he cannot socialize with people, does not trust people or turn his back on people. The Veteran indicated that he keeps his guard up. The clinician noted that the Veteran’s anxiety was due to being around people and waiting for something to happen. In May 2013 VA clinical record, the Veteran reported that he confronted his neighbor about accusations that he was seeing the neighbor’s wife. The neighbor was waiting with five of his friends and a fight broke out. The Veteran stated that he cut two of the neighbor’s friends and beat up the neighbor. The neighbor’s father came and defended the Veteran. In September 2013, the Veteran reported another fight with a neighbor. The Veteran stated that the neighbor made negative comments towards him while he was walking to his mailbox. In an April 2014 VA clinical record, the clinician noted that the Veteran continued to isolate himself and only goes to visit his daughter and her family. In September 2014, the Veteran reported that he got into a physical altercation with another Veteran who was bragging about his compensation. The Veteran stated that he was upset since he had just visited the Vietnam Wall and saw all the veterans who lost their lives, and this person was bragging about all he gets from the government. The Veteran indicated that the man came at him and the Veteran put him in a chokehold. In this case, the evidence of record indicates that throughout the entire period on appeal, the Veteran’s PTSD was manifested by symptoms and impairment that more nearly approximate the criteria required for an initial 70 percent rating, but no higher. As set forth above, the October 2011 VA examiner indicated that the Veteran had difficulty in adapting to stressful circumstances, such as a work-like setting. The examiner noted and the record reflects that the Veteran exhibits impaired impulse control and becomes violent. The Veteran has consistently reported symptoms of depression, anxiety, anger, irritability, sleep disturbance, and nightmares. He has little ability to focus or concentrate. The Veteran isolates himself and reports his inability to be around other people due to depression and anxiety symptoms. Based on the evidence of record, including the medical records and the Veteran’s competent and credible statements, the Board finds that the Veteran’s symptoms and impairment more nearly approximate occupational and social impairment with deficiencies in most areas. The Board has also considered whether the evidence supports a rating of 100 percent. The Veteran’s symptoms and overall level of impairment did not, however, more nearly approximate the total occupational and social impairment required for a 100 percent rating. The Veteran has a daughter who lives locally and one grandchild. He reports getting along with his daughter and grandson. He stated that he calls his brother or visits his daughter, and that usually helps to decrease his depressive feelings. See January 2014 and April 2014 VA Clinical Record. Moreover, the Veteran has not exhibited symptoms such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting herself or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. As such, an initial disability rating of 70 percent, but not higher, is warranted. 38 C.F.R. 4.130, DC 9411. For the reasons above, an initial 70 percent rating for PTSD is warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. 5107 (b); 38 C.F.R. 4.3. 1. TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran is now service-connected for PTSD, rated as 70 percent disabling from the May 17, 2011, effective date of the award. The Veteran meets the percentage requirements for consideration under 38 C.F.R. § 4.16(a). At the October 2011 VA examination, the Veteran reported that he was currently working with his brother doing carpentry. He indicated that it was temporary work secondary to the pain he experiences. The Veteran noted that he had been doing minimal amounts of work recently due to pain. The examiner noted that the Veteran had a decreased ability to work due to marked irritability and physical limitations. In a January 2012 SSA record, a clinical psychological evaluation indicated that the Veteran was able to read and understand written material at the sixth-grade level. The examiner concluded that the Veteran should be able to sustain attention well enough to perform simple repetitive tasks for 15 to 20-minute periods in very small work settings. The examiner noted that Veteran has difficulty interacting with others. The examiner further noted that the Veteran will have difficulty relating to fellow workers, supervisors, and peers in medium to large sized work settings and will have difficulty tolerating stressors and pressures in similar sized work settings. In September 2014 the Veteran submitted VA Form 21-8940 for TDIU. He reported that he worked in carpentry until May 2006 when he became too disabled to work due to his service-connected PTSD. In a November 2014 statement, the Veteran reported that he had not worked since October 2006. He stated that he was let go for fighting on the job. In November 2014, the Veteran submitted another VA Form 21-8940 for TDIU, on which he reported that he had completed high school. He also noted that he did not receive any other education or training prior to and after becoming too disable to work. In a February 2015 statement, an employer reported that the Veteran had worked as a laborer from October 2005 to November 2006 in the construction field. The employer reported that the Veteran was found not to be employable in the construction field. The employer noted personal conflict and irreconcilable differences with the Veteran. The employer further noted her belief that the Veteran required assistance for his medical and physical needs. Based on the evidence of record, the Board finds that a TDIU is warranted. The October 2011 VA examiner noted that the Veteran had a decreased ability to work due to marked irritability. The January 2012 SSA psychological evaluation shows that the Veteran will have difficulty relating with others in an employment setting. The Veteran has reported that he isolates himself and has difficulty being around other people. He has reported anger, irritability, and becoming violent. The Veteran has also reported symptoms of anxiousness and the difficulty to concentrate or focus. Additionally, a former employer reported that the Veteran was not found employable in the construction field. These statements are competent and credible and the question of whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). For the foregoing reasons, the Board finds that the Veteran’s service-connected PTSD render the Veteran unable to secure or follow substantially gainful employment in light of his education and employment history. Therefore, entitlement to a TDIU is warranted. 38 C.F.R. 4.16 (a). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel