Citation Nr: 18144731 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 07-18 646 DATE: October 25, 2018 ORDER An initial evaluation of 70 percent, throughout the entire appeal period, for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability due to PTSD is granted. FINDINGS OF FACT 1. An initial 70 percent disability rating for PTSD is granted, effective November 22, 2002. 2. A total disability due to individual unemployability for PTSD is granted, effective November 22, 2002. CONCLUSIONS OF LAW 1. Throughout the pendency of the appeal, the criteria for an evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have been met throughout the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to December 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2006 and April 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The RO in Denver, Colorado certified the appeal to the Board. The Veteran’s claims file remains in the jurisdiction of the Denver RO. In January 2009, the Board denied the Veteran’s claim for entitlement to an initial rating in excess of 30 percent for PTSD and entitlement to a TDIU due to service-connected disabilities. Following the Veteran’s motion to vacate, the Board ordered vacatur of the January 2009 Board decision. Additionally, in May 2009, the Board denied the Veteran’s claim of entitlement to an initial rating in excess of 30 percent for PTSD and entitlement to a TDIU due to service-connected disabilities. Following the May 2009 decision, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (the Court). In a September 2009 Joint Motion for Vacatur and Remand, the Secretary of VA and the Veteran (the parties) moved the Court to vacate the May 2009 Board decision. The Court granted the motion in a September 2009 order. The Board remanded these issues for further development in January 2012, specifically requesting additional VA treatment records be obtained and a VA examination be provided. In an April 2013 rating decision, the RO assigned a higher 50 percent rating for PTSD, effective March 6, 2012, and denied entitlement to a TDIU. In February 2014, the RO assigned an earlier effective date for the 50 percent disability rating, effective July 19, 2005. As the April 2013 and February 2014 rating decisions did not result in a full grant, the issues remained on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Now, the case is once again before the Board. In a May 2014 decision. the Board denied entitlement to a rating in excess of 50 percent throughout the claim period, and remanded the issue of entitlement to a TDIU for further development. Following the May 2014 decision, the Veteran appealed the Board’s decision to the Court. In an April 2015 Joint Motion for Remand, the Parties moved the Court to vacate the May 2014 Board decision. The Court granted the motion in an April 2015 order. In July 2015, Board remanded the claims for additional development. Following the Veteran’s January 2015 claim of clear and unmistakable error, the RO found a clear and unmistakable error in its February 2006 assignment of an effective date of July 19, 2005, for the grant of service connection for PTSD, in that the February 2006 rating decision failed to apply 38 C.F.R. § 3.156(a) in evaluating evidence submitted. The evidence submitted cited service department records that existed and that had not been associated with the claims file when VA first decided the claim in an April 2003 rating decision. The RO corrected this error, assigning a noncompensable disability rating for PTSD, effective November 22, 2002, the date of his original claim for service connection. As the current issue is for an evaluation for an initial rating, the Board finds the scope on appeal includes the newly assigned effective date and thereafter. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Increased Rating and TDIU Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, 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. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). As detailed above, the claim period is from November 22, 2002 and thereafter. under the criteria. The relevant rating criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411 are as follows. A 30 percent rating is assigned for occupational and social impairment with decrease in work efficiency and intermittent period of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned for 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. Id. A 70 percent rating is assigned for 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. Id. A 100 percent rating is assigned for 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. 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 adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In light of new medical and lay evidence as well as the February 2018 Vocational Assessment obtained after the July 2015 Board remand, the Board finds that the Veteran’s PTSD symptoms during the appeal period more closely approximate a 70 percent disability rating. Specifically, the evidence demonstrates social and occupational impairment with deficiencies in mood, thought, judgment, work, family relations, and school. Although medical evidence documented certain symptoms more or less frequently throughout the claim’s fifteen-year history, the Board finds that the evidence revealed that the severity of the Veteran’s PTSD remained more or less constant. Early in the claim history, the Veteran reported experiencing suicidal ideations. Specifically, March 2004, December 2005, and January 2006 VA treatment records documented the Veteran’s suicidal thoughts. Although the Veteran stated during a March 2012 VA examination that “this has never been an issue for him,” the Veteran’s history of suicidal ideations is a significant factor in granting a higher rating, particularly during the period before January 2006. See Bankhead v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 435, *19 (Mar. 27, 2017) (holding that suicidal ideation need not be active in nature to warrant the assignment of a 70 percent rating; rather, the appropriate inquiry is whether either passive or active suicidal ideation, in the absence of other symptoms similar to those listed as examples in the criteria for a 70 percent rating, results in social and occupational impairment with deficiencies in most areas). The Board turns next to evidence that demonstrated impairment specific to the Veteran’s work and educational career. The record reveals that the Veteran last worked full-time in 2001 as a service representative at IBM. Following his departure from IBM, the Veteran pursued a vocational rehabilitation training and began a course of study in teaching. A March 2007 VA examiner found that the Veteran “retain[ed] cognitive, emotional, and behavioral capacities to do simple work activities in a loosely supervised environment, where he would have limited contact with the public, peers, and supervisors.” By March 2012, the Veteran abandoned his coursework in education. The March 2012 VA examination report stated that he completed some student teaching but he “did not like it” and stopped taking on-line courses around 2010. He stated that his work with the students was very irritating. As an alternative, the Veteran suggested to his vocational rehabilitation counselor that he wanted to become a therapist. However, his counselor did not approve the career choice and the Veteran discontinued schooling. A July 2013 VA treatment record documented the Veteran’s report that he was recently called to jury duty and experienced an acute “spell of claustrophobia.” Aside from the Veteran’s pursuits to become a teacher, the record reveals that he has worked occasionally with his wife at gun shows, helped manage a gun shop, and chopped firewood on a contractual basis. The March 2016 VA examination report offers the most thorough assessment of the Veteran’s contribution to these enterprises as well as the occupational impairment due to his PTSD. The March 2016 examiner observed that the Veteran “has real problems with follow-through and efficiency.” Historically, the Veteran has worked on his own pace and schedule, “partly due to his poor sleep and his tendency to get better sleep in the day.” The examiner agreed with the March 2012 VA examiner’s finding that the Veteran is capable of performing “routine tasks in a limited setting” and has been doing so for the last decade. But the March 2016 examiner expanded upon the examiner’s 2012 assessment by stating that the Veteran has only completed projects “on an inconsistent basis. His projects at the gun shop appear to be done at his leisure, without structure, and do not result in significant income. His tasks in cutting wood are primarily focused on maintaining his own firewood stores for his home, although there is some income from that.” The examiner added that the Veteran was unable to complete re-training as an educator because he was uncomfortable with his hyperarousal symptoms around small children. The Board finds that the Veteran’s symptoms, specifically anxiety, sleep impairment, hyper-arousal, and isolation, have resulted in occupational impairment with deficiencies in work and school. In so finding, the Board has considered the record as a whole and finds the March 2016 VA examination report highly probative. The report offered a thorough and detailed discussion of the Veteran’s medical and employment history, explained its findings, documented its extensive in-person interview with the Veteran, and provided a supporting rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). In addition, the medical evidence demonstrates that the Veteran’s PTSD has impaired his mood, thought, and judgment. For example, the Veteran’s sleep impairment revealed behavior affecting each of the three areas. The February 2003 VA examination report documented the Veteran’s reports of sleep impairment. He reported that he checks his door and windows carefully before he goes to sleep and he sleeps with a 45-caliber automatic firearm at his bedside. March 2007 and March 2012 VA examination reports documented that the Veteran maintains about four to five hours of sleep each night due to his anxiety, nightmares, and intrusive thoughts. The March 2016 VA examiner also found that his poor sleep prevents him from working during “[r]egular business hours.” Also, the Veteran has reported claustrophobia, frequent panic attacks, and hyper-arousal throughout the claim period. For example, in each of the VA examinations the Veteran reported feelings of anxiety in crowds and avoiding crowds when possible. The March 2016 VA examiner mentioned that he was not well-suited for teaching younger children because he was “uncomfortable with his hyper-arousal symptoms around children.” The Veteran detailed a specific incident while he was student teaching where a student snuck up behind him. Being startled, he turned around and swung at the student. While the Veteran did not make contact with the student, the incident significantly affected the Veteran. Collectively, the reports and symptoms described above demonstrate impairment in the Veteran’s mood, thinking, and judgment. The record reveals that the Veteran’s PTSD symptoms also impaired his marital and social relationships. A September 2013 correspondence from the Veteran’s treating psychiatrist reported that his PTSD symptoms “greatly impact his marriage and ability to relate to society and others.” The Veteran reported to the March 2016 VA examiner that his wife is his “only true friend.” In the Veteran’s spouse’s December 2017 affidavit, she reported that since 2002, the Veteran does not like to be in public, remained hyper-vigilant, had difficulty concentrating, loss of long term memory, and struggled with depression. Moreover, the record includes a September 2013 correspondence from the Veteran’s treating VA psychiatrist detailing the severity of his PTSD symptoms. The psychiatrist stated that the Veteran has been under his care since 2004. He reported that the Veteran continues to have intrusive thoughts, triggers of past trauma, severe irritability, avoidance, sleep problems and dysphoria. He characterized the Veteran’s PTSD symptoms as “severe.” In fact, the clinician stated the symptoms are so “severe that he is unable to manage even simple employment.” Further, the clinician stated that his symptoms are “unlikely to further improve. The Board finds the September 2013 correspondence to be highly probative given the psychiatrist’s substantial history treating the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In short, resolving all doubt in the Veteran’s favor, the Board finds that, throughout the appeal period, the evidence of record reflects the Veteran’s PTSD symptoms have resulted in occupational and social impairment with deficiencies in work, family relations, school, judgment, thinking, and mood. Thus, this impairment has resulted in deficiencies that more nearly approximate the criteria for a 70 percent disability rating throughout the appeal period. In addressing why the criteria for a schedular rating higher than 70 percent are not met, the Board notes that the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. The record does not include reports of the Veteran experiencing delusions, hallucinations, homicidal ideations, or persistent suicidal ideations. The lowest GAF score assigned to the Veteran during the period under review was a 43, in March 2012. But the Board acknowledges that the Veteran generally displayed a higher GAF score, to include 50 in February 2012, and 52 in March 2016. Such scores are not suggestive of total occupational and social impairment. In determining that the criteria for a 100 percent rating are not met, the Board has considered the lay assertions, including the Veteran’s own statements and testimony, as to his symptomatology and the severity of his condition. Those statements primarily describe symptoms, such as unprovoked irritability with episodes of verbal outbursts, tics, depression, familial difficulties, difficulty concentrating, anxiety, as well as isolation, which are contemplated by the 70 percent, rather than the 100 percent, rating criteria. In any event, to the extent entitlement to a 100 percent rating based on those symptoms is claimed, the Board concludes that the findings during medical evaluation, which do not reflect total occupational and social impairment, are more probative than the lay assertions of record. The Board has accordingly relied heavily on the VA examinations and VA treatment showing limitation of function that, at most, approximates the criteria for a 70 percent evaluation. In short, based on the evidence and analysis above, the Board finds the criteria for a rating of 70 percent for PTSD, but no higher, are met during the entire period under review. Accordingly, a 70 percent rating, but no higher is granted. Despite having determined that a 100 percent schedular rating for PTSD is not warranted, the competent and probative evidence of record shows that throughout the pendency of the appeal, the Veteran has been unable to obtain or maintain gainful employment due to his service-connected PTSD. Additionally, as a result of the increased rating granted in this decision, the schedular criteria for a TDIU have been met throughout the appeal period, such that a TDIU is warranted, effective the date of claim. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel