Citation Nr: 18149999 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 17-10 947A DATE: November 14, 2018 ORDER Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) with alcohol and nicotine dependence is granted prior to March 29, 2013, from July 1, 2013 to June 24, 2016, and from October 1, 2016 to May 9, 2018; and an initial 100 percent rating is granted from May 10, 2018, subject to the regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The service-connected PTSD with alcohol and nicotine dependence prior to March 29, 2013; from July 1, 2013 to June 24, 2016; and from October 1, 2016 to May 9, 2018, more nearly approximates occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood; and from May 10, 2018 more nearly approximates total occupational and social impairment. 2. For the entire appeal period the Veteran meets the schedular requirement for TDIU and his service-connected disabilities render him unable to follow a substantially gainful occupation. 3. The evidence is in relative equipoise as to whether the Veteran’s tinnitus is related to his service. CONCLUSIONS OF LAW 1. Prior to March 29, 2013; from July 1, 2013 to June 24, 2016; and from October 1, 2016 to May 9, 2018 the criteria for an initial 70 percent rating for PTSD with alcohol and nicotine dependence have been met, and from May 10, 2018 the criteria for an initial 100 percent rating for PTSD with alcohol and nicotine dependence have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. For the entire appeal period the schedular criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2007 to September 2010. An October 2013 rating decision granted service connection for PTSD with alcohol and nicotine dependence and assigned a 50 percent evaluation effective January 23, 2013, the date the Veteran’s claim was received. A 100 percent evaluation from March 29, 2013 was assigned based on a period of hospital treatment for a period in excess of 21 days, and 50 percent was assigned from July 1, 2013. In an October 2016 rating decision, the RO assigned a temporary evaluation of 100 percent effective June 25, 2016 based on surgical or other treatment necessitating convalescence pursuant to 38 C.F.R. § 4.30. Thus, the periods encompassed in the Board’s decision herein are prior to May 9, 2018 (when a 70 percent rating is granted) and thereafter (when a 100 percent evaluation is awarded). The Veteran’s claim for TDIU was received in October 2018 whereby he claimed he cannot work due to PTSD. In a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue of TDIU is currently before the Board. In October 2018 the Veteran withdrew his request for a Board hearing and asked that a decision be made based on the evidence of record. Lastly, although examination scheduling requests in October 2018 show that attempts were being made to schedule the Veteran for a PTSD examination and TDIU examination, there is no prejudice to the Veteran in not scheduling these examinations as the Board is granting TDIU for the entire appeal period and a 100 percent rating for PTSD with alcohol and nicotine dependence in part based on the Disability Benefits Questionnaire PTSD examination dated in October 2018 that the Veteran himself submitted. Neither the Veteran nor his attorney has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Issue 1: Entitlement to an initial rating higher than 50 percent prior to March 29, 2013; from July 1, 2013 to June 24, 2016; and from October 1, 2016 for PTSD with alcohol and nicotine dependence. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected psychiatric disorder is evaluated under the General Rating formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating 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; 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. A 100 percent rating 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. In addition, 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. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “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 only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). 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. 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. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant’s condition affecting the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). DSM-V is applicable in the instant case as the issue on appeal was certified to the Board in October 2017 and thus is after August 4, 2014. 80 Fed. Reg. 14308 (March 19, 2015). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It is the impact of the symptoms on occupational and social functioning that determines the rating. Prior to May 10, 2018, with the exception of periods when the Veteran was in receipt of a 100 percent rating based on hospitalization or convalescence, the Board places high probative value on the evidence showing that his PTSD with alcohol and nicotine dependence more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking or mood, thereby warranting a 70 percent rating. First, during an April 2013 VA PTSD examination, which the Board acknowledges was during a period of hospital treatment, the examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and or mood. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or a worklike setting, inability to establish and maintain effective relationships, obsessional rituals which interfered with routine activities. Throughout the period prior to May 10, 2018 (with the exception of periods when the Veteran was in receipt of a 100 percent rating based on hospitalization or convalescence) his treatment records show symptoms consistent with findings on the April 2013 VA examination. For example, VA treatment records in September 2015 show that he was having interpersonal difficulties whereby he reported he was driving his family away. He was depressed and had suicidal thoughts of shooting himself and going to Iraq to fight and die as a hero. The records also show that he was unable to maintain a steady job and did odd jobs in the community to support himself. See, e.g. VA treatment records dated in April 2013, July 2016, and April 2018. In a December 2017 letter, his VA treating psychologist, stated that he (the Veteran) endorsed psychological distress with intense suicidal and homicidal ideation. He had poor modulation of anger with episodes or rage, hypervigilance, avoidant behavior, and limited capacity for sustained attention and concentration. He endorsed a post-military history of significant complication within the occupational context characterized by pronounced social avoidance and isolation. The examiner noted that the Veteran had chronic and severe PTSD with episodic thought disorder symptoms and propensity for violent behavior. The examiner opined that the Veteran’s ability to maintain gainful employment was significantly compromised and contraindicated by the manifestation of co-occurring depression with episodic alcohol abuse. At no point prior to May 10, 2018 during the periods when the Veteran was not in receipt of a 100 percent rating based on hospitalization or convalescence, has the Veteran’s overall symptomatology more nearly approximated the criteria for a 100 percent rating as that rating requires evidence of total occupational and social impairment. Neither the lay nor medical evidence of record shows that the Veteran had total occupational and social impairment. He did not demonstrate symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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. Instead, as discussed above the evidence shows that prior to May 10, 2018 the Veteran had temporary periods of employment doing odd jobs, which belies the notion of total occupational and social impairment. Further, VA treatment records show that he was oriented and denied having hallucinations. See, e.g. VA treatment records dated in April 2013, April 2014, October 2015, and April 2018. From May 10, 2018, the Board places high probative value on the evidence showing that the Veteran’s PTSD with alcohol and nicotine dependence more nearly approximates total occupational and social impairment. The Veteran submitted a Disability Benefits Questionnaire PTSD examination dated in October 2018. The examiner noted that he had PTSD, alcohol use disorder, and unspecified depressive disorder due to PTSD. He found that the Veteran had a high steady state of anxiety, episodic autonomic hyperarousal, distractibility, social avoidance, alcohol misuse, chronic sleep disturbance, and poor modulation of anger. The examiner opined that the Veteran had total occupational and social impairment and that it was not possible to differentiate symptoms attributable to each diagnosis as well as to differentiate what portion of the occupational and social impairment was caused by each mental disorder. He noted that there was significant symptom overlap with PTSD being the primary diagnosis that essentially gave rise to the Veteran’s co-morbid conditions. The examiner stated that the Veteran had a highly stressful living situation with his mother and sister. He noted that the Veteran had an inconsistent work history, lost his job in May 2018, and has not been able to maintain stable employment since May 2018. He stated that the Veteran’s increased paranoia and episodic hallucinatory experiences impacted his relationships. His symptoms included hypervigilance, depressed mood, anxiety, suspiciousness, near continuous panic or depression, chronic sleep impairment, memory loss, impaired judgment, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work, suicidal ideation, obsessional rituals which interfered with routine activities, impaired impulse control, persistent danger of hurting self or others, and neglect of personal appearance and hygiene. Contemporaneous VA treatment records are consistent with the October 2018 VA examiner’s findings. For example, a treatment record dated on May 16, 2018 shows that there was evidence of paranoia, delusions, and possible psychotic process. The record shows he was suicidal and walked out of his job the previous week after threatening a younger coworker for talking down to him. He had a delusional thought process. He reported recurrent suicidal ideation and homicidal ideation associated with perceived threats and danger from virtually all others. Although the October 2018 examination first shows a formal finding of total occupational and social impairment, the United States Court of Appeals for Veterans Claims (Court) has held that an “effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran’s disability] first manifested.” Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Notably, the October 2018 examiner found it significant that the Veteran stopped working in May 2018. Further, in a September 2018 Request for Employment Information, VA Form 21-4192, the Veteran’s last employer indicated that the Veteran stopped working on May 10, 2018. Thus, a 100 percent rating for total occupational and social impairment is warranted from May 10, 2018. The evidence also shows that the Veteran has other psychiatric diagnoses to include unspecified depressive disorder. However, VA is precluded from differentiating between the symptoms of the Veteran’s service-connected PTSD with alcohol and nicotine dependence and those of his other mental disorders in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). As in the instant case, it is not possible to distinguish the effects of the Veteran’s service-connected psychiatric disorder from other psychiatric disorders, the reasonable doubt doctrine dictates that all symptoms be attributed to the PTSD with alcohol and nicotine dependence. Id. Lastly, the Board acknowledges that the medical evidence of record does not reflect that the Veteran experiences all of the symptoms associated with the 70 and 100 percent schedular evaluations being assigned herein. There also were periods prior to May 10, 2018 when the Veteran denied having suicidal and homicidal ideation. See, e.g. VA treatment records dated in September 2013 and February 2014. However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, and for the reasons discussed above, the Board concludes that prior to March 29, 2013; from July 1, 2013 to June 24, 2016; and from October 1, 2016 to May 9, 2018, the criteria for an initial 70 percent rating for PTSD with alcohol and nicotine dependence have been met and from May 10, 2018, the criteria for an initial 100 percent rating have been met. Issue 2: Entitlement to TDIU. Total disability ratings for compensation based on individual unemployability 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In light of the decision herein, the Veteran is service-connected for tinnitus in addition to PTSD with alcohol and nicotine dependence. Although the Agency of Original Jurisdiction has not yet had the opportunity to effectuate a rating for tinnitus, the Veteran meets the schedular criteria for TDIU as throughout the entire appeal period his service service-connected PTSD with alcohol and nicotine dependence has been rated at least as 70 percent disabling. He contends that he is unemployable due to his service-connected psychiatric disorder. See, e.g., TDIU claim received in October 2018. While in light of the decision herein effective May 10, 2018 the Veteran is in receipt of a 100 percent schedular rating for a single service-connected disability, the Court has held that the receipt of a 100 percent schedular disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to TDIU. Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognized that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Thus, the issue of TDIU is addressed for the entire appeal period in the event that the Veteran’s total schedular rating for his service-connected psychiatric disorder is ever reduced and he meets the criteria from SMC under 38 U.S.C. § 1114(s). The remaining question, then, is whether the Veteran’s service-connected disability renders him unemployable. In this regard, the central inquiry is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his October 2018 TDIU claim, the Veteran indicated that he had a high school education. VA treatment records in July 2011 show that the Veteran never had a job outside the military. In October 2011 he had side jobs such as roofing and mechanic work. In February 2013 he reported that he lost a factory job where he worked for only two weeks. In April 2013 the records show that the Veteran described having held three jobs in the last five years, with the longest period of employment being two weeks making medical shelves. In July 2016 it was noted that the Veteran earned $100 to $200 per week doing odd and $200 to $1000 quarterly from his Indian tribe connection. In August 2016 the records continue to show that the Veteran worked odd jobs such as handiwork and construction, earning $200 to $800, and $200 to $300 from his Indian Tribe connection. The examiner indicated that the Veteran waivered about being ready to start gainful employment. In the October 2018 TDIU claim, the Veteran reported that from January 2013 to April 2013 he worked for a temporary agency doing assembly work and his highest gross pay per month was $1600. From March 2018 to May 2018 he worked for Gypsum Supply Company delivering drywall and his highest gross pay per month was $2000. To the extent that the Veteran briefly worked during the appeal period, marginal employment will not be considered substantially gainful employment and will be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Thus, the evidence shows that the Veteran’s employment for the entire appeal was sporadic, brief, and at most marginal. 38 C.F.R. § 4.16(a). Instead, the weight of the shows that the Veteran is unemployable due to his service-connected PTSD with alcohol and nicotine dependence. First, he has a high school education. Second, his brief and sporadic employment history shows that he worked as a physical laborer whereby he had to interact with other people. Third, as discussed above in the context of the Veteran’s claim for a higher initial rating for his service-connected psychiatric disorder, in a December 2017 letter, the Veteran’s VA treating psychologist, opined that the Veteran endorsed a post-military history of significant complication within the occupational context characterized by pronounced social avoidance and isolation. The examiner concluded that the Veteran’s ability to maintain gainful employment was significantly compromised. On the October 2018 Disability Benefits Questionnaire PTSD examination, the examiner opined that the Veteran had total occupational and social impairment. The examiner noted that he had an inconsistent work history, lost his job in May 2018, and has not been able to maintain stable employment since May 2018. In sum, the evidence shows that the Veteran has a high school education with a sporadic and brief work history doing physical labor requiring him to work with other people. As discussed above, the weight of the evidence shows that the severity of his service-connected PTSD with alcohol and nicotine dependence renders him incapable of obtaining and retaining substantially gainful employment given his level of education, training, and work experience. Issue 3: Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is related to service based on continuity of symptomatology as he has had tinnitus since service due to his military occupational specialty as an infantryman where he was exposed to acoustic trauma. See October 2018 letter from the Veteran’s attorney. His DD 214 Form shows that his military occupational specialty was that of an infantryman with service in Afghanistan. The Veteran is competent to report symptoms of tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally Charles v. Principi, 16 Vet. App. 370 (2002). The Board recognizes that there is an unfavorable VA opinion whereby the examiner opined that tinnitus is less likely than not related to service as the Veteran was separated from service with normal hearing. See August 2013 VA audiological examination. The examiner indicated that the Veteran had temporary tinnitus due to loud music. VA treatment records in October 2011 show that the Veteran indicated he thought he noticed tinnitus earlier that year but had a difficult time remembering when it started. However, the Board does not find a reason to question the credibility of the October 2018 letter from the Veteran’s attorney contending that he indeed has had tinnitus since service. The attorney based on communications with the Veteran was able to specifically ascertain exactly when his tinnitus began. Accordingly, it is at least as likely as not that the Veteran’s tinnitus had its onset during his active service. As the evidence here is in relative (CONTINUED ON NEXT PAGE) equipoise, meaning that the evidence for and against the Veteran’s claim is essentially equal, the benefit-of-the-doubt rule applies, and entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel