Citation Nr: 18146035 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-13 453 DATE: October 30, 2018 ORDER Entitlement to a disability rating in excess of 60 percent for service-connected coronary artery disease status post myocardial infarction (MI) with stent placement is dismissed. Entitlement to a disability rating of 70 percent for service-connected posttraumatic stress disorder (PTSD) is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted prior to July 28, 2018, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. At the July 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw the appeal for the issue of entitlement to a disability rating in excess of 60 percent for service-connected coronary artery disease status post MI with stent placement. 2. For the entire period at issue, the Veteran’s PTSD has resulted in occupational social impairment with deficiencies in most areas; total occupational and social impairment has not been shown. 3. Prior to July 28, 2018, the competent evidence reasonably established the Veteran’s service-connected disabilities were of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for entitlement to a disability rating in excess of 60 percent for service-connected coronary artery disease status post MI with stent placement have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to a disability rating of 70 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9411. 3. Prior to July 28, 2018, the schedular requirements for TDIU were 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 had active duty service from April 1968 to April 1970. A hearing was held before the undersigned Veterans Law Judge in July 2018. A transcript is of record. At the Travel Board hearing, the record was held open for 60 days for the submission of additional evidence. In September 2018, the Veteran’s representative submitted additional evidence that is considered herein. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. At the July 2018 Board hearing, the Veteran withdrew on the record the appeal for entitlement to a disability rating in excess of 60 percent for service-connected coronary artery disease status post MI with stent placement and, hence, there remain no allegations of errors of fact or law for appellate consideration. See July 2018 Hearing transcript. Notably, it was explained to the Veteran at the hearing that no further action would be taken to address his claim for an increased rating for his coronary artery disease, and he expressed his agreement. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 1. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). The average impairment of earning capacity due to PTSD is determined by the criteria set out in the General Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, a 50 percent rating is warranted where the psychiatric condition produces 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. A 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; 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 evaluation is warranted where 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 or place; memory loss for names of close relatives, own occupation, or own name. Id. Although PTSD is rated under the General Rating Formula, the use of the term “such as” in 38 C.F.R. § 4.130 indicates that the listed symptoms are not intended to constitute an exhaustive list. Rather, the symptoms listed under the General Rating Formula for Mental Disorders are to serve as examples of the type and severity of symptoms or their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms to be considered when rating a Veteran’s PTSD are not limited to those listed in 38 C.F.R. § 4.130. Instead, VA shall consider all symptoms of a Veteran’s PTSD that affect his level of occupational and social impairment, including, if applicable, those identified in the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided additional guidance in rating psychiatric disability. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Specifically, the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Id. at 2. It 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. Id. at. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 2. The Veteran’s service-connected PTSD is currently assigned a 50 percent rating. After reviewing the pertinent evidence of record, the Board finds that the symptoms related to his service-connected PTSD more closely approximate the criteria noted for a 70 percent evaluation under 38 C.F.R. § 4.130, Diagnostic Code 9411. In this regard, the Board acknowledges that the available medical evidence is limited. The Veteran did not attend mental health treatment and was reluctant to attend the most recent examinations. However, the competent medical and lay evidence of record reflects that his PTSD symptoms have been consistent throughout the entirety of the appeal period and are characterized by occupational and social impairment with deficiencies in most areas, such as family relations, judgment, thinking, or mood. VA treatment notations from February 2011 to November 2011 show the Veteran was overly anxious and resistant to therapy, as he felt it was “too late” for therapy to have any positive effects on his treatment. In November 2011, the Veteran discontinued individual VA mental health therapy but continued with medication management. Despite the lack of mental health treatment records, the Veteran testified before the Board in July 2018 and described his daily life and his PTSD symptoms. At the hearing, he indicated he stayed depressed all the time. He did not like to go outside and would rather be in a room by himself with the curtains and blinds closed. He expressed difficulty with even attending the hearing that day. He preferred not to socialize and needed to have his back to a wall whenever he was outside so he could observe his surroundings. He testified that he did have friends that he could talk to and relate to because they were also Vietnam Veterans. However, he also indicated his depression caused him to not want to do anything and felt like he could burst out crying at any time. The Veteran also testified he suffered from suicidal thoughts and had difficulty controlling his anger to the extent he had to stop working because he could not get along with his co-workers. The Veteran noted that difficulties with concentration, memory and sleep impairment also impacted his ability to function daily. He noted that he would sometimes go two or three days at times without taking a shower and sometimes longer without shaving. The Veteran indicated if it was not for his wife, he would not be dressed as he was for the hearing that day. He also reported he did not want to attend examinations to further his Social Security Administration (SSA) or VA claims as he did not want to see doctors. Socially, the Veteran testified he had difficulties getting along with family members at times. He explained he had two sons but felt like they could not do anything right. He also reported he was unable to participate in group therapy because he did not like being around others. See hearing testimony. An August 2018 VA examiner opined the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment and thinking. The examiner reported the Veteran lived with his wife of 51 years but did not talk to her often, rarely left home and had one friend he saw occasionally but otherwise was too nervous in social situations. The Veteran last worked in 2011 and had to stop because of a conflict at work. He reported feeling down and depressed all the time with loss of interest, anhedonia and social isolation. He was tense and nervous all the time with worried excessively. He also reported daily nightmares and daily intrusive thoughts. He had trouble going to sleep and staying asleep as well as occasional panic attacks. Moreover, he had daily suicidal ideations but no plan. The examiner documented symptoms including depressed mood, anxiety, suspiciousness, panic attacks, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships and suicidal ideations. During the examination, it was noted that the Veteran was tense, irritable and had a flat affect. The Veteran also underwent a private medical evaluation in August 2018. The Veteran reported paranoia, hypervigilance, nightmares and myoclonus. He indicated his wife had to sleep in a different bed because he swung his arms and yelled in his sleep. He also reported both suicidal and homicidal ideations, but more suicidal. Socially, he indicated he was always getting in fights with others. He experienced irritability, hostility and psychomotor agitation. The Veteran’s memory was also poor. From the Veteran’s wife’s perspective, she reported they were unable to watch television together, go out to eat or have any interaction. She stated the Veteran “just sat” and did not want to be around people, including her. She noted that he was hypervigilant and sometimes slept with a gun under his pillow. See private examination. The aforementioned medical and lay evidence supports the finding that the Veteran’s symptoms have resulted in an inability to establish and maintain effective relationships. It is also clear he suffers from poor memory, sleep disturbances, hypervigilance, suicidal ideations, social isolation, panic attacks and irritability which causes him to be unable to work. Therefore, the Board finds that a 70 percent is warranted for the Veteran’s service-connected PTSD. The Board has considered whether a still higher 100 percent rating is warranted and finds that while the evidence demonstrates an isolating and debilitating disability picture, it is not shown that the Veteran has total occupational and social impairment from his PTSD either. In this regard, although the Veteran and his wife have indicated they have little interaction and involvement in each other’s lives, they have still been able to maintain a marriage for over 50 years. Similarly, although the Veteran has indicated that he does not like to go out and prefers staying home, he also testified that he has a few friends that he can talk to and relate to because they were also Vietnam Veterans. He also reported during a subsequent VA examination in August 2018 that had one friend whom he saw occasionally. Such evidence supports a finding that the Veteran is unable to establish and maintain effective relationships, but does not show that he has total social impairment. It is also not shown that the Veteran suffers from gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or other symptoms comparable to total occupational and social impairment. Accordingly, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that for the entire period at issue, the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. As such, he is entitled to a 70 percent rating, but no higher, for his PSTD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a TDIU Total ratings, referred to as TDIU, may be assigned in the first instance by the Board or the Regional Office when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). Neither the effect of nonservice-connected disabilities nor of the veteran’s age may be considering in determining whether TDIU is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough to warrant TDIU. A high rating is in itself recognition that the disability makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). As an initial matter, the Board notes that the Veteran is in receipt of a 100 percent rating for his service-connected coronary artery disease status post MI with stent placement from July 28, 2018. He has also been awarded special monthly compensation (SMC) at the (s) rate from July 28, 2018, on account of his coronary artery disease rated at 100 percent and additional service-connected disabilities of bilateral sensorineural hearing loss; PTSD; status post shrapnel wound with retained foreign body left upper extremity, muscle group III and degenerative joint disease left shoulder with scar; and tinnitus, independently ratable at 60 percent or more from July 28, 2018. Because the Veteran has been in receipt of a 100 percent rating for his service-connected coronary artery disease from July 28, 2018, and has also been in receipt of SMC from that date, the claim for a TDIU from July 28, 2018 is moot. Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, this decision will focus only on whether entitlement to TDIU was shown prior to July 28, 2018. Prior to July 28, 2018, the Veteran was service-connected for coronary artery disease, rated 60 percent; PTSD, now rated 70 percent; status post shrapnel wound in the left shoulder, rated 20 percent; bilateral sensorineural hearing loss, rated 20 percent; and tinnitus, rated 10 percent. Therefore, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16 (a), were satisfied. The Veteran’s VA Form 21-8940 reported he was too disabled to work as a result of his PTSD and his heart condition. He last worked in a position relating to shipping and stopped working in February 2011 as a result of an altercation with a co-worker. The Veteran had a high school education with some technical school that he did not complete. VA Form 21-8940. At the July 2018 Board hearing, the Veteran testified he believed his heart condition and his PTSD prevented him from working full-time. In particular, he testified he did not have the energy or strength to perform a job. Additionally, he had difficulties with co-workers. He described one heated argument in which he was holding a knife and almost got into a fight with a coworker, however, he said the arguments were common. Educationally, he testified he tried to go to technical college but did not finish. He last worked in February 2011 at a shipping warehouse for furniture but had previously changed jobs often. At the August 2018 VA examination, the examiner opined the Veteran’s PTSD would make it difficult for him to work effectively. He suffered from daily intrusive thoughts and flashbacks that would also interfere with his ability to work. Most significantly, he was very irritable and can hardly tolerate being around others, even his wife. Similarly, the August 2018 private medical examiner also found the Veteran’s PTSD rendered him totally disabled emotionally and unable to function in any job in any capacity. After weighing all the evidence of record, to include those reported earlier in this decision, there is little doubt that prior to July 28, 2018, the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. The record is clear that the Veteran’s PTSD caused extreme restrictions with his ability to interact with others and to work effectively. The Veteran also suffered from physical limitations due to his service-connected coronary artery disease. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that prior to July 28, 2018, his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. Accordingly, entitlement to TDIU prior to July 28, 2018, is warranted. 38 C.F.R. §§ 3.341(a), 4.16, 4.18, 4.19. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel