Citation Nr: 18151261 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 13-33 741A DATE: November 16, 2018 ORDER Entitlement to a disability evaluation greater than 70 percent, prior to November 21, 2017, for service-connected posttraumatic stress disorder (PTSD) with depressive disorder, cannabis and alcohol abuse is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior November 21, 2017, is granted. FINDINGS OF FACT 1. Before November 21, 2017, The Veteran’s posttraumatic stress disorder (PTSD) with depressive disorder, cannabis and alcohol abuse is manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. Before November 21, 2017, The Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Before November 21, 2017, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9411. 2. Before November 21, 2017, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 2002 to January 2008, including two tours of duty in Iraq. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an October 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A May 2018 rating decision increased the disability rating for PTSD with depressive disorder, from 70 percent to 100 percent, effective November 21, 2017. As this grant does not represent total grants of benefits sought on appeal, the claim for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In October 2017, the Board remanded this claim for additional development. Neither the Veteran nor his representative has raised any issues with respect to VA’s duty to notify or assist. The Board finds that no deficiencies in the duty to notify or assist are otherwise apparent from the record. 1. Entitlement to a disability evaluation greater than 70 percent, prior to November 21, 2017, for service-connected posttraumatic stress disorder (PTSD) with depressive disorder, cannabis and alcohol abuse The Veteran seeks a higher disability rating for service-connected PTSD. The disability is currently rated as 70 percent disabling from August 27, 2010, the date of receipt of his claim for service connection for the disability. The applicable rating period is from August 27, 2010, the effective date for the award of service connection for PTSD with major depressive disorder, through November 21, 2017. See 38 C.F.R. § 3.400. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran’s service-connected psychiatric disability is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders. Relevant to the issue on appeal, 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 maximum 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. The VA General Rating Formula for Mental Disorders is meant to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Symptomatology should be the fact finder’s primary focus when deciding entitlement to a given disability rating, and a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id. The psychiatric symptoms listed in the above rating criteria are not exhaustive. Rather, they are examples of typical symptoms for the listed percentage ratings. Mauerhan, 16 Vet. App. 436. Accordingly, consideration will be given to all symptoms of the Veteran’s service-connected psychiatric disabilities that affect her level of occupational and social. Turning to the relevant evidence of record, the Veteran’s medical treatment records do not indicate that the Veteran’s PTSD causes a total impairment of his social and occupational functioning. The Veteran was afforded a VA examination in September 2011 to determine the current severity of service-connected PTSD. The examiner assigned a level of occupational and social impairment with reduced reliability and productivity for the Veteran’s service-connected PTSD. The Veteran reported living with roommates, having a girlfriend, and sporadic contact with his mother. At that time, the Veteran reported not working or attending school, but noted that he had a couple jobs after the military and brief stint in college, but had to drop out for financial reasons. The examiner noted the symptoms of depressed mood, anxiety, panic attacks, and chronic sleep impairment were related to the Veteran’s PTSD. The Veteran reported alcohol and marijuana use as well. A September 2015 VA examination report found that the Veteran presented with occupational and social impairment with deficiencies in most areas. In terms of social impairment, the Veteran reported that he recently got married, which the Veteran described as a good relationship. However, in general, the Veteran reported disliking interacting with people that much. The Veteran endorsed going to college in August 2010 to October 2012. The Veteran stated he withdrew from school due to concentration issues, paranoia, guardedness, and avoidance. The Veteran reported attending community college and doing “pretty good” at this time. The Veteran reported a history of job instability, sleep impairment, concentration, emotional regulation, feeling disoriented, and confusion. The Veteran reported that he cannot work as a mechanic due to sounds, smells, and sights of the vehicles trigger memories of the military. The Veteran presented with depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation. Upon examination, the examiner observed the Veteran to be alerted, oriented in all three spheres, guarded yet cooperative, very anxious mood, psychomotor agitation, restricted affect, and slightly pressured speech. Thought process was goal directed with endorsement of episodes of paranoia. Judgment and insight appeared fair to limited. He also endorsed passive suicidal thoughts. After considering all the evidence, the Board finds that, throughout the relevant rating period, the Veteran’s service-connected psychiatric disability does not meet the criteria for a 100 percent rating. During that period the Veteran’s service-connected psychiatric disability manifested in symptoms such as depressed mood, anxiety, suspiciousness concentration issues, paranoia, panic attacks, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation. In terms of social impairment, the Veteran reported a new marriage, which he labeled as a good relationship. The Veteran stated that his wife keeps him grounded and helps with PTSD related symptoms. The Veteran reported an improvement in his grades during his second enrollment in college. The Veteran also reported a general disinterest for interacting with other people. Turning to occupational impairment, the Veteran reported being employed and occupational stability. The Veteran reported that he cannot work as a mechanic due to sounds, smells, and sights of the vehicles trigger memories of the military. However, the Veteran was enrolled in community college and reported doing “pretty good.” The Board finds the Veteran’s reported symptomology coupled with his levels of social and occupational impairment are consistent with the criteria for a 70 percent rating under Diagnostic Code 9411. The Board further finds that, at no time during the relevant rating period, did the Veteran’s service-connected psychiatric disability more closely approximate the criteria for a 100 percent rating in terms of severity, frequency, and duration. Specifically, during that period, the Veteran had deficiencies in family relationships, and mood, but he did not have total occupational and social impairment due to her service-connected psychiatric disability. Furthermore, he did not demonstrate symptoms consistent with many of those specifically listed under the 100 percent ratings in terms of severity, frequency, and duration such that the criteria for a 100 percent rating was more closely approximated. He did not exhibit 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. Moreover, the Board notes that the assignment of a disability rating under Diagnostic Code 9411 is not merely a checklist of symptoms, but an assessment of the social and occupational impairment imposed by the reported symptomology. Thus, the Board finds the Veteran’s reported symptomology coupled with his levels of social and occupational impairment are consistent with the criteria for a 70 percent rating under Diagnostic Code 9411. The Board acknowledges that the Veteran is competent to report symptoms of his service-connected psychiatric disabilities, as doing so requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered his reported symptoms. The Veteran is also credible in her belief that she is entitled to higher ratings. However, the Board relies on the competent findings of record provided by medical professionals, given the professionals’ expertise in evaluating mental disorders. The probative evidence does not support a finding that a disability rating in excess of the one granted herein is warranted for the service-connected psychiatric disability. In summary, the Board finds that, for the service-connected psychiatric disability, a rating of 100 percent is not warranted at any time during the relevant rating period. 2. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. VA will grant a TDIU when the evidence shows that the veteran is precluded, because of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in a TDIU claim is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. The Veteran was service-connected for (1) PTSD with depressive disorder, rated variably at 70 percent, prior to November 21, 2017, and (2) tinnitus, rated at 10 percent. The combined evaluation for these disabilities was 70 percent, prior to September 21, 2017. As such, the Veteran meets the preliminary schedular criteria for consideration for entitlement to a TDIU. See 38 C.F.R. § 4.16. Thus, the Veteran may be awarded a TDIU if evidence shows that his service-connected disabilities preclude substantial and gainful employment. The Board finds that the competent evidence of record does support such a conclusion. The Veteran’s VA Form 21-8940 (Veteran’s Application for Increased Compensation based on Unemployability) provided that the Veteran last worked as a mechanic in April 2013. The highest level of education completed by the Veteran was one year of college. The Veteran did not receive any other education or training before the Veteran was too disabled to work. The Veteran reported in his September 2015 VA examination that his service-connected PTSD resulted in sleep impairment, concentration, emotional deregulation, disorientation, and confusion, which impair his ability to work. Moreover, the Veteran stated that he is unable to work as a mechanic because the sounds, smells, and sights of vehicles trigger memories of traumatic military experiences. The Veteran also reported that his service-connected PTSD caused him to with withdrawal from college to do inability to focus and concentrate. Considering the above, the Board finds that the Veteran’s service-connected disabilities render him unable to secure and maintain substantial and gainful employment. The Veteran is trained as a mechanic; however, his service-connected PTSD prevents him from engaging in the that trade. The Veteran has exhibited a significant level of job instability since his discharge from military service. Moreover, the Veteran’s ability to attend school or learn a new trade are hampered due to his PTSD symptoms. Therefore, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure and maintain substantial and gainful employment and the Board resolves the benefit of the doubt in favor of the Veteran in this case. Therefore, the Board finds the Veteran’s service-connected disabilities render the Veteran unable to secure and follow substantial and gainful employment. Based on the foregoing, the Board finds the evidence has shown that the Veteran would be unable to obtain and maintain employment based on his service-connected disabilities. The appeal is granted. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel