Citation Nr: 18147363 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-33 551 DATE: November 5, 2018 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) (previously evaluated as panic disorder without agoraphobia) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran’s service-connected PTSD has been manifested by symptoms of occupational and social impairment with deficiencies in most areas; symptoms of total occupational and total social impairment have not been shown. 2. The Veteran’s service-connected PTSD precludes him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Codes 9411. 2. The schedular criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the Army from December 1968 to December 1970. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2014 rating decision. Entitlement to a TDIU has been raised by the evidence of the record. The Board has characterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to a rating in excess of 70 percent for PTSD. The Veteran’s service-connected PTSD is currently rated at 70 percent from May 6, 2013 under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, 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); inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. 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; memory loss for names of close relatives, own occupation or own name. Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but 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). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. The Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). However, the amended provisions do not apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the Agency of Original Jurisdiction. The instant appeal was initially certified to the Board in June 2018. Therefore, the amended version of the Schedule for Rating Disabilities is for application in the instant appeal. In February 2013, the Veteran submitted a vocational rehabilitation opinion from a private vocational consultant, S.B. S.B. noted that she reviewed the Veteran’s claims file. S.B. noted that the Veteran’s post-service work history included work as a store laborer and a construction worker/superintendent. The Veteran last worked in 2012; he had social difficulties in sustaining employment and left due to those issues. She stated that in reviewing the medical records, there were pertinent parts which supported a finding that the Veteran was unable to sustain any type of significant and substantial work activity. S.B. opined that based upon the severity of the Veteran’s emotional impairment, the Veteran was disabled and unable to sustain any substantially gainful work activity as a result of his service-connected emotional condition. Specifically, his issues with social interactions, judgment, mood disturbances and stress tolerance would result in an inability to sustain any significant substantial work activity. In April 2013, the Veteran submitted a Disability Benefits Questionnaire (DBQ), conducted in January 2013, for his mental disorders. The Veteran was diagnosed with chronic, severe panic disorder with agoraphobia. The Veteran’s symptoms included depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in obtaining and maintaining effective work and social relationships, difficultly adapting to stressful circumstances, and inability to establishing and maintain effective relationships. The evaluator concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The evaluator indicated that he reviewed the Veteran’s claims file. He noted that the Veteran had difficulty sustaining employment due to interpersonal conflicts and “moods.” The Veteran last worked in October 2012. The evaluator reported that the Veteran was given Formal Counseling due to work absences (for reasons of panic attacks) and had to give up his supervisory position. The Veteran’s mental status was fragile and highly vulnerable to daily stressors, both rationally and irrationally based. In October 2013, the Veteran was afforded a VA examination for his PTSD. The Veteran’s symptoms included: depressed mood; anxiety; suspiciousness; panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; mild memory loss, such as forgetting names, directions or recent events; flattening affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. The VA examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran’s wife, who was present during the examination, stated that she and the Veteran had been married for 4.5 years. She stated that the Veteran had high anxiety, depressed mood, and struggled with his anger and often engaged in isolation due to the trauma he experienced in Vietnam. When he was at home, he could not relax. He was always moving his fingers and toes to relieve stress. He got upset and started obsessing about jobs, and he got very stressed out about work. The Veteran reported that he had issues with trust. He had few friends due to his “anger issues” and because he could not relax. He stated that he was currently employed part-time as a contractor, but that he was self-employed most of his life. He had difficulty maintaining employment over the years because he frequently argued with and cursed at his supervisors and co-workers. He had trouble getting hired due to his anger at work. His last job confrontation was because the fire sprinkler guy was being a “butt,” and the Veteran “snapped.” The Veteran also had problems concentrating at work. The VA examiner reported that the Veteran’s claims folder was not available for review during the examination. The VA examiner noted that the Veteran appeared to have symptoms consistent with PTSD. Due to the fact that the October 2013 VA examiner was not able to review the Veteran’s claims file, the RO obtained an addendum opinion from the October 2013 VA examiner, and the VA examiner was able to review the claims file. The VA examiner opined that there were no changes to the October 2013 VA examination report based on a review of the claims file. In June 2016, the Veteran was afforded a VA examination for his PTSD and panic disorder. The VA examiner reported that the Veteran had more than one mental disorder, but he could not differentiate the symptoms attributable to each diagnosis because the symptoms overlapped. The VA examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The VA examiner reported that he could not differentiate what portion of the occupational and social impairment indicated caused by each of the Veteran’s mental disorders because both mental health problems affected his functioning. The Veteran reported that he was currently still married to his third wife. He had been married to her for four years, but the quality of the marriage was “going downhill.” The Veteran described his wife as a “control freak.” His emotional problems caused some problem in his marriage. His wife commented that he got upset easily and was not “flexible.” However, he had a good relationship with his 45-year old son. The Veteran did not have any friends because he did not want the responsibility of having to maintain a friendship with others or go out socially with others. The Veteran reported that he enjoyed working in his yard, gardening, and playing his guitar. The Veteran reported feeling anxious in crowds, and he went to the store early to avoid crowds. The Veteran reported that was currently unemployed. He last worked as a superintendent for a general contractor in 2014 for one month; he was let go after one month because “the job was winding down and [he was told that] there was no more work.” He reported that he had issues on the job. He got irritable easily with others, had problems concentrating, felt anxious, and got upset over small things. His subcontractors complained to the Veteran’s boss that the Veteran was too critical of the work of the subcontractors. He even got into a verbal altercation related to the Veteran’s feedback about a job. He missed approximately one day every two weeks related to feelings of anxiety and irritability. The Veteran stated that he was not working at the time due to difficulty getting along with others, feeling overwhelmed, and anxiety. Furthermore, the Veteran reported that he had no hospitalizations for psychiatric problems since October 2013. The Veteran took medication for his condition. He continued to have two to three panic attacks weekly. The Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Upon behavior observation, the Veteran appeared alert and oriented to person, place, and time. The Veteran was dressed and groomed appropriately. The Veteran did not show any evidence of a thought disorder and denied hallucinations and delusions. He denied any suicidal or homicidal ideation, plan, or intent. In December 2017, the Veteran submitted letters from his previous employers and friend. See December 2017 Correspondence. They stated that the Veteran’s mental problems caused him to have difficulty at work. The Veteran had panic attacks, was easily agitated and jumpy. The Veteran also had problems with concentrating at work. He also had anger issues with people and had to work independently. He was sent home from work early because of these issues and missed days from work. In December 2017, the Veteran submitted another vocational rehabilitation opinion, dated November 2017, from a private vocational consultant, S.B. S.B. noted that the Veteran had not worked since 2014 due to his physical and mental impairments. S.B. reviewed the evidence of record and provided a summary of the VA examinations and pertinent evidence of record. She also cited to medical literature. S.B. stated that research found that most employers would tolerate variable rates of absence. However, most employers allowed for no more than 8 days per year. Depending on the industry in which a worker was employed, those figures for off work time could range from ½ days per month to a high of 1 day per month. The Veteran was expected to miss more than this based on the reports of his physical and mental symptoms, and the results of his evaluations and prior work history. She opined that the Veteran was totally and permanently precluded from performing work at a substantially gainful level without accomodation, which was provided in prior work, due to the severity of his service-connected PTSD. For the entire appeal period, the Board finds that a rating in excess of 70 percent is not warranted. To obtain a rating in excess of 70 percent, it must be shown that psychiatric symptomatology causes total social and total occupational impairment. Here, the Veteran is currently married and has been for several years. He has also reported a good relationship with his son. As such, it cannot be said that the Veteran is totally socially impaired. This is not to say that the Veteran’s PTSD does not cause social problems. Clearly it does. However, the 70 percent rating he is assigned contemplates an inability to establish and maintain effective relationships. As such, the Veteran’s social impairment is clearly compensated by the assigned rating. The Veteran’s psychiatric symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, anger issues, and difficulty in adapting to stressful situations. The Veteran had difficulty establishing relationships at work because he frequently argued with and cursed at his supervisors and co-workers. He also had problems concentrating at work. However, the evidence of record does not support symptoms of total occupational and social impairment. The Veteran has not shown that he had an intermittent inability to perform activities of daily living. Throughout the appeal period, he has maintained appropriate hygiene and appearance. The Veteran reported that he enjoyed working in his yard, gardening, and playing the guitar. Although he felt that his current marriage was going “downhill,” avoided crowds, and did not have any friends, he did have a good relationship with his 45-year old son. Also, the Veteran did not show gross impairment of thought processes and denied hallucinations and delusions. He denied any suicidal or homicidal ideation, plan, or intent. Moreover, the June 2016 VA examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. When considering all the symptoms of record, the Board finds that the Veteran’s psychiatric symptoms most closely approximate a 70 percent evaluation. The Board has also considered the statements by the Veteran regarding the severity of his mental disability, and acknowledges that he is competent to report the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.159 (a)(2) (2018); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran do not meet the burden for a higher rating imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of the Veteran’s service-connected PTSD. In conclusion, a rating in excess of 70 percent for the Veteran’s service-connected PTSD is not warranted. 2. Entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). 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 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran is service-connected for PTSD rated at 30 percent from May 26, 2009, and 70 percent from May 6, 2013; bilateral tinnitus rated at 10 percent from May 26, 2009; and bilateral sensorineural hearing loss at 0 percent from May 26, 2009. For the entire appeal period, the schedular rating requirements for a TDIU, under 38 C.F.R. § 4.16(a), are met. However, finding that a veteran meets the schedular requirements for TDIU is not where the inquiry end, as it must also be shown that the Veteran’s service-connected disability or disabilities render him unable to secure or follow a substantially gainful occupation. Following a review of the evidence, the Board finds that it has been shown that the Veteran’s service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. The Veteran’s psychiatric symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, anger issues, and difficulty in adapting to stressful situations. On the Veteran’s January 2013 DBQ for mental disorders, the evaluator noted that the Veteran had difficulty sustaining employment due to interpersonal conflicts and “moods.” The Veteran last worked in October 2012. The evaluator reported that the Veteran was given Formal Counseling due to work absences and had to give up his supervisory position. The evaluator concluded that the Veteran’s mental status was fragile and highly vulnerable to daily stressors, both rationally and irrationally based. Furthermore, on his June 2016 VA examination, the Veteran reported that he last worked as a superintendent for a general contractor in 2014 for one month; he was let go after one month because “the job was winding down and [he was told that] there was no more work.” The Veteran reported that he had issues on the job. He got irritable easily with others, had problems concentrating, felt anxious, and got upset over small things. His subcontractors complained to the Veteran’s boss that the Veteran was too critical of the work of the subcontractors. He even got into a verbal altercation related to the Veteran’s feedback about a job. He missed approximately one day every two weeks related to feelings of anxiety and irritability. In December 2017, the Veteran submitted letters from his previous employers and friend. See December 2017 Correspondence. They stated that the Veteran’s mental problems caused him to have difficulty at work. The Veteran had panic attacks, and was easily agitated and jumpy. The Veteran also had problems with concentrating at work. He also had anger issues with people and had to work independently. He was sent home from work early because of these issues and missed days from work. Also, in February 2013 and December 2017, the Veteran submitted vocational rehabilitation opinions from his private vocational consultant, S.B. S.B. noted that she reviewed the Veteran’s claims file. In 2013, she opined that based upon the severity of the Veteran’s emotional impairment, the Veteran was disabled and unable to sustain any substantially gainful work activity as a result of his service-connected emotional condition. In 2017, she stated that research found that most employers would tolerate variable rates of absence. However, most employers allowed for no more than 8 days per year of absences. Depending on the industry in which a worker was employed, those figures for off work time could range from ½ days per month to a high of 1 day per month. The Veteran was expected to miss more than this based on the reports of his physical and mental symptoms, and the results of his evaluations and prior work history. She opined that the Veteran was totally and permanently precluded from performing work at a substantially gainful level without accomodation, which was provided in prior work, due to the severity of his service-connected PTSD. Based on the foregoing, the evidence overwhelmingly shows that the Veteran is unable to unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. Therefore, entitlement to a TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel