Citation Nr: 18150802 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-23 974 DATE: November 15, 2018 ORDER Entitlement to an increased rating in excess of 70 percent, for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for ischemic heart disease (IHD) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD has not been productive of total occupational social impairment, to include symptoms such 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. 2. Since the period on appeal, the Veteran has been unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities, to include PTSD and right knee conditions. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army on active duty from June 1968 to June 1970. 1. Entitlement to an increased rating in excess of 70 percent, for posttraumatic stress disorder (PTSD). Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Parts 4. When rating a service-connected disability, the entire history must be considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board must consider entitlement to “staged” ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s PTSD is currently rated as 70 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411, which is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 70 percent rating is warranted where the disorder is manifested by 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 that is 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; and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula. The maximum 100 percent rating is warranted where the disorder is manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and a 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. In addition, 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). Further, ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “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 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). Considering the pertinent evidence of record in light of the above-cited provisions, the Board finds that a rating in excess of 70 percent is not warranted for the Veteran’s PTSD at any point during the period on appeal. The Veteran had a VA examination in February 2012 and at that time, the VA examiner determined the Veteran’s PTSD symptoms most closely reflected occupational and social impairment with occasional decrease in work efficiency. The Veteran’s noted symptoms were depressed mood, anxiety, and chronic sleep impairment. His was diagnosed with mild PTSD. The Veteran was afforded another VA examination in April 2014 and the VA examiner concluded the Veteran’s PTSD symptoms most closely reflected occupational social impairment with reduced reliability and productivity. The examiner noted symptoms of depressed mood, anxiety, panic attacks (occurring weekly or less often), chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, disturbances of mood and motivation, and difficulty establishing and maintaining effective work and social relationships. The Veteran also reported the symptoms of intrusive thoughts, nightmares and avoidance. He denied having any recent panic attacks, but stated that he feels tired most of the time, still struggles with irritability, and his appetite has decreased. He reported feeling “the same” compared to his last evaluation but then stated he is feeling more depressed and less angry than a few years ago. See April 2014 PTSD DBQ. The VA examiner noted the Veteran “has not had auditory hallucinations since beginning mental health treatment with VA but hearing a voice is what initially made him seek treatment. Id. The Veteran reported that he is not currently working because taking “a ton medication” and feeling like he was “breaking down.” Id. The VA examiner recommended the Veteran follow up with his treatment to include medication assessment and management as well as psychotherapy services. A private June 2015 PTSD DBQ noted the Veteran experienced the symptoms of depressed mood, anxiety, suspiciousness, panic attacks (occurring weekly or less often), near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood and motivation, and persistent delusions. The VA examiner determined the Veteran’s symptoms were most reflective of occupational and social impairment with deficiencies in most areas. The examiner noted the Veteran’s attention was normal but his concentration was variable. The examiner also noted the Veteran reported struggling with short and long-term memory loss, that his speech flow was normal and that his thought content was appropriate for the circumstances. His organization of thought was noted as goal oriented but there was a report of over hallucinations. The examiner noted the Veteran’s judgement was average and that mood was anxious and nervous with a restricted affect. The examiner also reported the Veteran seemed suspicious and vigilant in speaking with the examiner and that he seemed cautious. “He is insecure and unsure of himself over the course of this social interaction.” See June 2015 Private PTSD DBQ. The June 2015 private examiner included an attached evaluation of the Veteran. The examiner noted the Veteran is socially isolated and withdrawn and requires assistance from his wife, in performing his daily living tasks, such as reminders to shave and shower. The examiner also included a further discussion of the Veteran’s hallucinations. The Veteran reported auditory and visual hallucinations and delusions consisting of hearing voices and seeing shadows when no one is present. See Attachment to June 2015 Private PTSD DBQ. “Recently he noticed rocks in front of his house and immediately started focusing on someone ‘marking’ his house. He admits he realizes this is an irrational thought, however, these intrusive thoughts continue to plague him daily.” Id. The Veteran described a fear of leaving the house due to debilitating panic attack triggers. The private examiner provided an opinion that the Veteran’s PTSD prevented him from securing and following substantially gainful employment, however on the DBQ the examiner failed to indicate total occupational and social impairment. The Board finds that, collectively, the above-described evidence reflects that throughout the period under consideration, the Veteran’s psychiatric symptoms have not been shown to be of the type, extent, frequency or severity as the symptoms expressed in the rating schedule to support a 100 percent evaluation. Although the Veteran has reported auditory and visual hallucinations, to include hearing voices and seeing shadows, and although the examiner checked off the symptoms as persistent, he denied experiencing them at other points during the appeal period. The Veteran also seemed to realize the irrationality of his delusions about the rocks in his yard and suspiciousness towards his neighbor. Although the private June 2015 examiner noted the Veteran’s wife reminded him to shower and shave and that she was required to prepare meals other than sandwiches for him, the examiner did not find this amounted to an intermittent inability to perform activities of daily living. Additionally, the record fails to show gross impairment in thought processes or communication, gross 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-the symptoms listed in the rating criteria as indicative of the level of impairment for which a 100 percent rating is assignable. While the Board acknowledges that the Veteran has some symptoms associated with a 100 percent rating, specifically persistent delusions or hallucinations, the evidence does not otherwise indicate that his PTSD symptoms have resulted in total occupation and social impairment. The Veteran lives with his second wife and youngest adult daughter. There is no evidence of record that these relationships are strained. The Veteran accompanies his wife to the grocery store in an effort to get out of the house. None of the examiners of record have found the Veteran’s symptoms result in total occupational and social impairment. For the foregoing reasons, the Board finds the claim for a rating in excess of 70 percent for PTSD must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is against assignment of a higher rating at any pertinent point, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran 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, or 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. §§ 3.340, 3.341, 4.16(a). The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether a veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for a TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995) (citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994)). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). 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). In this case, the Veteran is service connected for PTSD which is currently 70 percent disabling, residuals of a shell fragment wound of the right knee which is currently 20 percent disabling, osteoarthritis of the right knee which is currently 10 percent disabling and internal derangement with residuals of metallic fragments of the right knee which is currently 10 percent disabling. The Veteran’s overall combined disability rating is 80 percent, thereby meeting the schedular criteria noted above. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities. The Veteran contends that he has not worked since March 2010 due to the severity of his PTSD and right knee disabilities. On his July 2011 application for TDIU the Veteran remarked that he experienced difficulty at work with interpersonal relationships and that the stress of a supervisory position was too much for him, causing him to take a demotion. He also remarked that the medication and lack of sleep as a result of his PTSD caused him to be forgetful, confused and experience more accidents. See July 2011 VAF 21-8940. In April 2015, private examiner, Dr. R.M. reported that the Veteran would be able to stand, walk or sit for less than two hours and carry less than ten pounds given his right knee condition. The examiner also speculated the Veteran would need to leave or miss work three or more days a month and need more than one extra break per day to lie down due to his service-connected disabilities. In June 2015, private psychologist, Dr. H.H.G., provided an employability review and stated the Veteran cannot sustain the stress from a competitive work environment or be expected to be engaged in gainful activity due to his PTSD. The Veteran reported difficulty maintaining and sustaining a steady mood and this inconsistent mood leads to problems in his social and work life. “He reports difficulty remembering events, requests and occasionally forgetting details or sequencing that would affect his employment.” See June 2015 Attachment to DBQ. Although, this private examiner did not find total occupational and social impairment for PTSD, the examiner found that the Veteran’s PTSD symptoms prevent him from maintaining substantially gainful employment. Also in June 2015, the Veteran sought the opinion of a private vocational consultant who determined, “The Veteran is totally and permanently precluded from performing work at a substantial [and] gainful level due to the severity of his service-connected PTSD, osteoarthritis, right knee and internal derangement right knee and the record suppose this finding as far back as the date of filing.” See June 2015 VA Disability Review by S.B. The vocational consultant based her findings on the medical and psychological evidence of record, the 2012, 2014 and 2015 DBQs, the 2015 Ability to do Work assessment, as well as 2010 research studies. The Veteran has a high school education and pursued a carpenter’s apprenticeship from 1972 to 1977. The Veteran last worked as a carpenter for his employer for the last eleven years, however the Veteran reports that he has worked as a carpenter for approximately thirty-five years for different employers. Given the nature of the Veteran’s past occupational experience, his limitations with standing, walking, lifting and kneeling would significantly impede his ability to perform occupational tasks at a satisfactory level. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (indicating a claimant does not have to be 100 percent unemployable in order to be entitled to TDIU). Further, according to several opinions of record, his lack of concentration and forgetfulness would affect his ability to work consistently and presumably cause safety issues on the job. Based on the foregoing, affording the Veteran the benefit of the doubt and given his occupational history and educational level, the Board finds that a TDIU is warranted. Resolving reasonable doubt in his favor, entitlement to TDIU is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for ischemic heart disease (IHD). Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim. The Veteran contends he has ischemic heart disease (IHD) and it is a result of his active service. In July 2011 the Veteran reported that his heart races frequently, to include once a week, for a few minutes at a time. He also reported having some shortness of breath. See July 22, 2011 Washington VAMC Treatment records. The Veteran has not yet been examined by VA to determine whether he currently suffers from a heart condition, to include IHD. The Veteran is competent to report the symptoms of a possible heart condition, which triggers the requirement to provide an examination to determine whether those symptoms warrant the diagnosis of a heart condition. Therefore, a remand is required for VA to fulfill the duty to assist the Veteran. Weggenman v. Brown, 5 Vet. App. 281 (1993). The matter is REMANDED for the following action: 1. Obtain any and all relevant up to date VA treatment records and associate them with the claims file. Contact the Veteran for any authorizations needed to obtain any relevant and up to date private treatment records. 2. Schedule the Veteran for a VA examination with the appropriate physician to determine the nature and origin of any heart condition. The examiner shall determine the following: (a.) Whether the Veteran has a current diagnosis of a heart condition, to include IHD. (b.) If so, whether the Veteran’s diagnosed heart condition is at least as likely as not (50 percent or greater probability) related to active service. The examiner shall include a rationale with all opinions and conclusions provided. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel