Citation Nr: 18151121 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 09-37 636 DATE: November 19, 2018 ORDER From June 23, 2007 to April 19, 2010 and since August 1, 2010, an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. From June 23, 2007 to April 19, 2010 and since August 1, 2010, a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD is granted. FINDINGS OF FACT 1. From June 23, 2007 to April 19, 2010 and since August 1, 2010, the Veteran’s PTSD has been manifested by occupational and social impairment in the areas of work, family relations, and mood, but is not productive of total social and occupational impairment. 2. Throughout the pendency of the appeal, the Veteran’s PTSD alone has precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From June 23, 2007 to April 19, 2010, the criteria for an initial rating of 70 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9499-9411. 2. Since August 1, 2010, the criteria for an initial rating of 70 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9499-9411. 3. Throughout the pendency of the appeal, the criteria for a TDIU, based solely on PTSD, have been met. 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 May 1968 to January 1970 and was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The April 2008 rating decision granted service connection for PTSD, evaluated as 10 percent disabling effective from June 23, 2007, the date of the claim. In an October 2010 rating decision, the RO granted a temporary evaluation of 100 percent from April 19, 2010 to August 1, 2010. In a July 2013 rating decision, the RO increased the initial evaluation for service-connected PTSD to 30 percent, effective June 23, 2007 to April 19, 2010 and from August 1, 2010. Following the April 2015 Board remand, the RO increased the evaluation of PTSD to 50 percent effective June 10, 2016. Accordingly, the applicable law mandates that when an appellant seeks a higher rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). Although the period in which the Veteran was granted 100 percent evaluations does constitute a full grant for his service-connected PTSD, higher evaluations are still available for the each of the staged-periods in which the Veteran’s condition was rated less than 100 percent. As such, these staged-periods are still under appeal. In April 2015, the Board remanded the case for further evidentiary development. In August 2017, the Board increased the evaluation of PTSD to 50 percent from June 23, 2007 to April 19, 2010 and since August 1, 2010. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Veteran’s representative and VA General Counsel filed a Joint Motion for Partial Remand (JMPR). The Court granted the joint motion that same month, partially vacating the August 2017 Board decision and remanding the matter for additional proceedings consistent with the joint motion. The case has been returned to the Board at this time in compliance with the JMPR. 1. Entitlement to an initial evaluation in excess of 50 percent prior to April 19, 2010 and from August 1, 2010 for PTSD. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will 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 claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Veteran’s PTSD is rated as 50 percent disabling from June 23, 2007 to April 19, 2010 and since August 1, 2010 under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411. The relevant rating criteria are set forth below. A 50 percent rating is assigned for 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 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. 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. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). After review of the evidence of record, the Board finds that a rating of 70 percent is warranted for the periods from June 23, 2007 to April 19, 2010 and since August 1, 2010. A higher rating of 100 percent is not warranted for any portion of the periods on appeal. Turning to the relevant evidence of record, the Veteran was first afforded a VA PTSD examination in March 2008. The Veteran noted he had occasional social relationships, activities, and leisurely pursuits. He denied a history of suicide attempts, violence, or assault. The VA examiner observed that the Veteran had lethargic psychomotor activity and slow speech, and he was easily distracted. However, the Veteran was also oriented to all spheres, had normal thought process and content, and had normal insight and judgment. The Veteran denied delusions, hallucinations, obsessive/ritualistic behavior, panic attacks, and suicidal/homicidal thoughts. The examiner indicated that the Veteran had good personal hygiene and impulse control and no episodes of violence. He also noted that the Veteran had no problem with activities of daily living. The Veteran presented with normal remote and immediate memory but mildly impaired recent memory. The examiner diagnosed the Veteran with PTSD. He also reported that the Veteran had mild social and occupational impairment due to PTSD. He further explained that the Veteran has occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, to include avoidance behaviors, but with generally satisfactory functioning. VA mental health treatment records from December 2007 to September 2008 are demonstrative of a condition that is more severe in nature. The Veteran reported that he has nightmares, difficulty with sleep, and wakes up three to four times per night but is able to fall back asleep. He also endorsed symptoms increased depression and anxiety, fatigue, irritability, crying spells, and difficulty with controlling anger outbursts. The Veteran reported that his symptoms have affected his relationships. His VA provider noted that the Veteran seemed rather isolated. The Veteran also indicated that his psychotropic medications cause drowsiness. He denied homicidal and suicidal ideas, hallucinations, and use of alcohol and illicit drugs. Mental status examinations reflected that the Veteran was alert and oriented, fairly groomed, and calm and cooperative. He had appropriate attention and concentration, intact insight and judgment, and logical and goal-directed speech. However, the mental status examinations also showed that the Veteran made intermittent eye contact, had a depressed mood and affect, and was tearful at times. He endorsed anxiety and depression with a feeling of a “burning ball in his chest” and difficulty controlling his anger. The Veteran reported that he felt better when he had activities to do and in May 2008, the Veteran stated that he attends church and enjoys going to the gym, movies, and out for meals during his free time. He also reported that his primary interest is rebuilding and fixing old cars, including motor work, painting, and sewing his own upholstery. The Veteran indicated that although he feels lonely he has numerous friends who seek his help with cars. At July 2008 and September 2008 visits, despite denials of suicidal and homicidal ideation, the Veteran reiterated the same symptoms of depression and poor sleep and stated that he picks at his nails when nervous. However, in his October 2008 Notice of Disagreement, the Veteran reported worsening symptoms and that he is more reclusive, avoiding individuals and crowds. At VA mental health visits from November 2008 to April 2010, the Veteran reported that he digs into his skin when he is nervous and that although he felt he was “doing okay,” he still had symptoms of depression, poor sleep, and a “burning ball in his chest.” He continued to endorse nightmares and impaired sleep but denied suicidal and homicidal ideas and hallucinations. He further indicated that he had crying episodes and flashbacks and that he felt angry, irritable, and scared all the time. VA mental health treatment records from August 2010 to November 2013 reveal that the Veteran continued to report depression, anxiety, and poor sleep, including nightmares and night sweats, despite compliance with medication. He denied suicidal and homicidal ideation, hallucinations, and alcohol and drug use but did endorse flashbacks and intrusive thoughts. However, in April 2013, he stated that he declined treatment because when he talks about traumas, “he thinks it would not take much for him to kill himself.” During this period, the Veteran reported difficulty with anger and irritability, memory, focus, and completion of tasks and stomach distress when nervous, particularly when out in public. Despite a less constricted affect and depressed mood, the Veteran continued to have intermittent eye contact. In September 2013, he also reported that he must stay busy to alleviate his depression. He stated that he participates in some activities, including going to church or attending Alcoholics Anonymous (AA) meeting with friends. He also reported that he mainly watches television, works on his car, and mows the lawn. However, in a subsequent visit in November 2013, despite denying suicidal and homicidal ideation, he complained of depression, flashbacks, intrusive thoughts, increased nightmares and that he avoids people due to problems with anger and irritability. Likewise, at VA mental health visits from February 2014 to March 2016, the Veteran complained of depression, flashbacks, panic attacks, intrusive thoughts, and poor sleep with nightmares approximately three times per week. He also reported that he angers easily and as a result, he avoids interacting with people. He continued to deny suicidal and homicidal ideation, hallucinations, and alcohol and drug use. Mental status examinations documented findings similar to those discussed above. Mental health providers also noted the Veteran had no abnormal psychomotor activity or perceptual disturbances. Although he reported an estranged relationship with his children, the Veteran did request a gym consult as he found it helped his mood. He also reported he was recently married. In April 2011, the Veteran’s friend also reported that he had depression and sudden, but short-lasting, mood swings. He also noted that the Veteran’s mood swings have become more frequent. In August 2014, the Veteran reiterated that he has difficulty with sleep, including nightmares up to twice per week. He also noted he has problems with focusing and completing complex tasks. However, he testified that he does cook for himself and clean his home, albeit with reminders. Board Hearing Transcript at 4-6, 15-16. The Veteran was afforded another VA PTSD examination in June 2016. The VA examiner observed that the Veteran has symptoms of a depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was friendly, cooperative and maintained good eye contact during the examination. The examiner opined that the Veteran has occupational and social impairment with reduced reliability and production. In July 2016, the Veteran’s friends submitted letters indicating that he has a negative outlook and lost various friends due to his PTSD symptoms. However, his friend also reported that the Veteran’s symptoms have been improving since his recent marriage. At VA mental health treatment visits from June 2016 to June 2017, the Veteran again complained of increased anxiety and depression, flashbacks, intrusive thoughts, and poor sleep with nightmares. The Veteran reported that he attends the gym three times a week as it helps with his depression. Treatment notes indicate the Veteran had intermittent eye contact, constricted affect, and a depressed mood. He continued to deny suicidal and homicidal ideation and hallucinations. The Board finds the Veteran’s PTSD most closely approximates the criteria for a 70 percent rating. Throughout this period, the Veteran has demonstrated symptoms of flattened affect, self-isolation, chronic sleep impairment, near-continuous depression and anxiety, impaired impulse control, and difficulty in establishing and maintaining effective relationships. Given the Veteran’s reports of self-isolation, impaired impulse control, and near-continuous depression and anxiety, the Board finds that his symptoms during this period cause occupational and social impairment in the areas of work, family relations, and mood. Therefore, after resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD most closely approximates the criteria for a 70 percent rating. In addressing whether a rating higher than 70 percent is warranted for any portion of the appeal period, the Board concludes that the evidence of record does not support a rating of 100 percent – the highest disability evaluation available – at any time during periods from June 23, 2007 to April 19, 2010 and since August 1, 2010. The March 2008 and June 2016 VA examiner did not find that the Veteran’s symptoms caused total occupational and social impairment during these periods. Moreover, the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration from June 23, 2007 to April 19, 2010 and since August 1, 2010. The Veteran has not shown to have gross impairment in thought processes or communication, persistent hallucinations, inappropriate behavior, an inability to perform activities of daily living, or any of the other markers of total occupational and social impairment due to his service-connected PTSD. Regarding occupational impairment, the Board acknowledges that the Veteran has not held steady part- or full-time employment since 1989 and that some degree of occupational impairment due to his PTSD is clearly evidenced by the record. Indeed, the Board is granting entitlement to a TDIU, herein. However, a finding that the Veteran’s service-connected PTSD causes some degree of occupational impairment does not necessitate a finding of total occupational and social impairment as characterized in the General Rating Formula. Here, there is simply not a showing of psychiatric symptoms that are of similar duration, frequency, and severity that would warrant finding that the Veteran is totally occupationally and socially impaired. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Throughout the pendency of the appeal, the Board finds that a rating of 70 percent, but not higher, for the Veteran’s PTSD is warranted. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. The Board has considered the applicability of the benefit of the doubt doctrine in reaching these conclusions. However, to the extent that the Veteran’s claim for an increased initial rating for PTSD is being denied, the Board finds that the preponderance of the evidence is against a rating higher than that assigned herein. See 38 U.S.C. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to a TDIU. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has met the percentage requirements throughout the pendency of the appeal. The remaining question is whether the Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). For a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant’s case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran’s education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Federal Circuit’s decision in Geib governs the adjudication of this appeal. See Chisem v. Brown, 8 Vet. App. 374, 375 (1995). The March 2008 examiner found that the Veteran’s PTSD symptoms, including avoidance behaviors, caused only an occasional decrease in work efficiency. The June 2016 examiner found that the Veteran is only moderately impaired to in his ability to engage in physical and sedentary employment. Nevertheless, cumulative VA treatment records during the appellate period also reflect that the Veteran had chronic depression and anxiety, specifically around others, and getting along with people due to his anger and irritability. Resolving all doubt in the Veteran’s favor, the Board finds that since June 23, 2007, the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD alone. Given his unstable work history, education, and the nature of his service-connected disability, the evidence suggests that he would be incapable of performing the acts required for employment. See Van Hoose, 4 Vet. App. at 363. It is unlikely that he would find a work environment that would allow the Veteran to miss multiple days due to his anger, irritation, or other symptoms, or to be socially isolated. To the extent the record suggests the Veteran is capable of employment due to his car repair hobby, the Board finds that the severity of the Veteran’s PTSD renders him unlikely to turn this endeavor into substantial gainful employment. Accordingly, the Board finds that the evidence is at least in equipoise with respect to the issue of whether the Veteran is unemployable due to the effects of his PTSD. As such, TDIU due to service-connected PTSD is granted. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel