Citation Nr: 18149770 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-30 039 DATE: November 13, 2018 ORDER An initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based upon individual unemployability (TDIU) is granted, effective December 3, 2011. VETERAN’S CONTENTIONS The Veteran contends that his current disability rating for PTSD does not adequately encapsulate the severity of his symptoms. Additionally, the Veteran contends that his PTSD prevents him from securing or maintaining a substantially-gainful occupation. FINDINGS OF FACT 1. In December 2011, the Veteran reported that he experienced the following symptoms in connection with his PTSD: depression, chronic isolation, chronic irritability, nightmares, flashbacks, panic attacks, and hallucinations. Additionally, he stated that his job in service was grave registration and, accordingly, he saw dead soldiers. Later that month, the Veteran submitted another statement describing his symptoms wherein he stated that his irritability caused dysfunction, including causing the end of 3 marriages. Further, the Veteran reported that he was suicidal and that he had previously awakened in a closet with a firearm in his hand. 2. In February 2013, the Veteran was afforded a VA PTSD examination and the examiner diagnosed him with PTSD. The Veteran reported having nightmares of Vietnam, avoidance, feelings of detachment, irritability, occasionally throwing objects, hypervigilance, sleep disturbances, and mood dysphoria with occasional suicidal ideation. The examiner classified the Veteran’s level of impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner noted that the Veteran had one friend with whom he went fishing once a week. The Veteran reported being married 3 times and stated that he had one son that he had not spoken to in 20 years. Regarding the Veteran’s educational and occupational history, the examiner noted that the Veteran had an 8th grade education. The Veteran stated that he had gone to a trade school and worked in recreation prior to service. During service, the Veteran described his job as something analogous to an undertaker and stated that his job duties included collecting and identifying bodies as well as preparing them for funerals. The Veteran stated that after service, he worked as a painter, at a hospital as a mental therapist hygiene aide, in lawn maintenance, as a handyman, and in building maintenance for a local school board. The Veteran reported that, most of the time, he worked by himself and that he currently took care of 5 lawns. During the examination of the Veteran, the examiner noted the following symptoms attributable to PTSD: anxiety; suspiciousness, panic attacks that occurred weekly or less; chronic sleep impairment; 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 worklike setting; and suicidal ideation. Lastly, the examiner commented that the Veteran was competent and capable of managing his own financial affairs. 3. In March 2013, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran stated that his PTSD—particularly symptoms of anxiety, panic attacks, and chronic sleep impairment—prevented him from securing or following a substantially-gainful occupation. He stated that he last worked full-time in January 2011 and that his disability affected his ability to have full-time employment in November 2011. The Veteran reported that his last job was in maintenance for a school board and that he worked there from 1998 to 2009. Again, the Veteran reported having an 8th grade education. 4. Later in March 2013, an employee from the above-mentioned school board provided information on the Veteran’s past employment. Pursuant to the documentation submitted, the Veteran worked there full-time in building maintenance from November 1997 to June 2009 and had lost 89 hours during his last year of employment due to disability. However, no concessions were made due to disability and the Veteran merely chose to retire in 2009. 5. In April 2013, the Veteran reported for a mental health consultation at a VA facility. The clinician noted that the Veteran reported symptoms of night nightmares and hyperstartle response. The Veteran stated that his symptoms cost him 4 marriages and that, in the past, he drank alcohol heavily to forget. However, the Veteran stated that, in the past 9 years, he was doing much better as he went fishing with a friend 4 to 5 times a week, stayed busy at home, and had the support of a girlfriend. The Veteran reported that his main concern was insomnia. The Veteran denied symptoms of: depressed mood; decreased sleep, concentration, interests, energy, or appetite; feelings of guilt, helplessness, or hopelessness; suicidal or homicidal ideations, intent, or plans; recent manic symptoms or negative consequences of past mania; obsessive thoughts; intractable worries; panic attacks; auditory, visual, or tactile hallucinations; and memory problems. The Veteran stated that he was independent in his activities of daily living. A mental status examination indicated no hallucinations or delusions as well as no disorientation or deficits in thought or communication processes. 6. In a December 2013 statement, the Veteran reported that he suffered from persistent delusions and hallucinations. The Veteran stated that he was in fear of hurting himself, family members, bystanders, and law enforcement officials. 7. In June 2016, the Veteran stated that he suffered from panic attacks, delusions, and hallucinations on a constant basis. The Veteran stated that he did not participate in family functions and that he alienated himself from family. Additionally, the Veteran stated that he chose not to drive as he worried about injuring others due to road rage and that someone had called the local police on him due to a domestic violence situation. 8. In March 2018, VA provided the Veteran another VA PTSD examination. Following this examination, the examiner provided diagnoses of PTSD and major depressive disorder and stated that it was not possible to differentiate symptoms between both disorders. The examiner classified the Veteran’s impairment as occupational and social impairment with deficiencies in most areas. Regarding the Veteran’s history since the February 2013 VA examination, the Veteran stated that he now lived alone as he had broken up with his girlfriend due to his anger and aggression. However, his ex-girlfriend still visited him once a month to pay his bills. The Veteran stated that his only contact was a neighbor who visited him daily. Other than that, the Veteran reported that he sat in his garage every day and he did not feel like doing anything. Regarding legal developments, the Veteran stated that a neighbor had called the police on him when he was arguing with his ex-girlfriend, but no charges were filed. The Veteran stated that he drank a couple of shots of vodka every day or every other day, but denied using any drugs. The VA examiner noted the following symptoms attributable to the Veteran’s 2 mental health diagnoses: depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened 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; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; and neglect of personal appearance and hygiene. Additionally, the examiner noted the lack of hallucinations and delusions, abnormal thought processes, and disorientation in her behavioral observations. Lastly, the examiner completed an individual unemployability statement wherein she stated that the Veteran suffered from the following occupational issues: difficulty attending to or being easily distracted from the task at hand; difficulty maintaining concentration and focus on work over a period of time, tending to skip from one task to another without completing the prior task; significant difficulty remembering instructions and details of work assignments; significant difficulty functioning around other people; difficulty functioning as a team member; feeling uncomfortable around others; inability to tolerate being around other people in any setting for more than a few minutes; being so depressed that the Veteran has difficulty sustaining energy and motivation of complete assignments at work; and irritability, suspiciousness, and anger outbursts. 9. A review of relevant VA treatment records associated with the claims file does not demonstrate that the Veteran currently suffers from: gross impairment in thought processes or communications; persistent delusions or hallucinations; grossly inappropriate behavior; an intermittent inability to perform activities of daily living; a disorientation to time or place; or memory loss for names of close relatives, own occupation, or his own name. Further, the Veteran is not a persistent danger to himself or others. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU due to PTSD are met, effective December 3, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to May 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Increased Initial Rating for PTSD As indicated above, the Board finds that the Veteran is not entitled to an initial disability rating greater than 70 percent for his service-connected PTSD at any point during the claim period. Accordingly, to this extent, the appeal is denied. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 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 worklike setting); inability to establish and maintain effective relationships. 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. 38 C.F.R. § 4.130. In support of the determination to deny a rating higher than 70 percent, the Board notes that, at no point during the appeal, did the Veteran’s PTSD present with symptoms listed—or analogous to—the criteria for a 100 percent rating under the General Rating Formula for Mental Disorders provided above. Specifically, the Veteran’s memory loss recounted above in the Findings of Fact section appears best represented by the 70 percent rating criteria as it was less severe than memory loss for his own name, his own past occupations, or names of close relatives. Additionally, while the Board is cognizant of the Veteran’s suicidal ideations, his description of police being called on him for one possible incident of domestic violence, and his December 2013 report of fearing injury to himself and others, the Board finds these descriptions to be inconsistent with other evidence of record—particularly his VA treatment records. Accordingly, the Board does not conclude that the Veteran’s symptoms caused a persistent danger of harm to self or others. As such, a rating higher than 70 percent is denied. TDIU Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). However, VA may not take into account the individual veteran’s age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected 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. 38 C.F.R. § 4.16(a). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment—defined as when a veteran’s earned annual income does not exceed the poverty threshold for one person, or on a facts found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)—shall not be considered substantially gainful employment. At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU. Specifically, due to his 70 percent initial rating for PTSD, he has one disability rated at least as 60 percent disabling. Regarding the Veteran’s education, training, and occupational history, the record reflects that: (1) the Veteran has an 8th grade education; (2) his Department of Defense Form 214 indicates a military occupational specialty equivalent to that of a funeral attendant; and (3) post-service, the Veteran worked as a painter, at a hospital as a mental therapist hygiene aide, in lawn maintenance, as a handyman, and in building maintenance. Moving beyond the Veteran’s education, training, and occupational history, the record contains evidence indicative of the impact of the Veteran’s PTSD on his ability to obtain and maintain substantially gainful employment. Specifically, in the Findings of Fact section, the Board described that the Veteran suffers from irritability, anger outbursts, avoidance, isolating behaviors, an inability to work with others, being so depressed as to lack motivation and energy to begin tasks, and, if a task is actually started, an inability to maintain concentration. Accordingly, in light of the occupational effects of the Veteran’s PTSD—and resolving all reasonable doubt in the Veteran’s favor—the Board finds that the Veteran’s service-connected PTSD precludes him from obtaining and maintaining substantially gainful employment. As such, entitlement to a TDIU on the basis of service-connected PTSD is warranted—effective December 3, 2011, the date he filed a claim for service connection for PTSD. See 38 C.F.R. § 4.16(a). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel