Citation Nr: 18151537 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-35 174 DATE: November 20, 2018 ORDER Entitlement to a 70 percent disability rating, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. With reasonable doubt resolved in favor of the Veteran, his PTSD symptoms have more nearly approximated occupational and social impairment with deficiencies in most areas, but not total impairment, for the entire period on appeal. 2. The Veteran meets the schedular requirements for TDIU, and his service-connected PTSD renders him unemployable. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for PTSD have been met for the entire period on appeal. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to March 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 50 percent for PTSD. The Veteran is currently in receipt of a 50 percent disability rating for posttraumatic stress disorder (PTSD). The Veteran argues that he is entitled to a higher rating. Under the General Rating Formula for Mental Disorders, in pertinent part, a 50 percent rating is assigned when a veteran’s PTSD causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran’s PTSD causes 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran’s PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the veteran’s psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating 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. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (2018). Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). On a June 2013 private Psychological Consulting Services Note, L.G. (MA, LPA) diagnosed the Veteran with Axis I: PTSD, Chronic, Severe; Axis II: Deferred; Axis III: Hypertension, DM II, Injury to left knee and ankle, and tinnitus; and Axis IV: Combat stressors in Vietnam and opined that his symptoms caused “significant disturbances in all areas of his life.” L.G. also stated that the Veteran was considered to be “totally and permanently disabled.” L. G. indicated that the Veteran was severely compromised in his ability to sustain work or social relationships because of his hypervigilance, hyperirritability, and isolating behaviors. L.G. noted that the Veteran was unable to learn new tasks due to his memory and concentration problems. On an August 2013 Statement, P. D., the Veteran’s wife, reported that the Veteran’s mental health condition had gotten worse over the years. P. D. noted that over the course of their twenty-five-year marriage, the Veteran was initially easy-going, fun, and full of laughter. P. D. indicated that over the years, the Veteran’s personality changed and he no longer wanted to socialize with anyone, he became angry, irritable, and experienced nightmares and difficulty staying asleep. On the December 2013 VA PTSD examination, the Veteran reported symptoms of angry outbursts, irritability, hypervigilance, exaggerated startled response, depressed mood, difficulty concentrating, nightmares, difficulty falling or staying asleep, disturbance of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideations. The Veteran indicated that he married his first wife during his period of service in Vietnam and that he has two adult children. The Veteran noted that he has been married to his second wife for twenty-five years and he described their relationship as “up and down.” The Veteran reported having thoughts about wanting to hurt other people every 15 minutes when he is not at home, primarily people who he believes act “entitled” to something and the fact that it is against the law is what keeps him from acting on it. He said that he did not watch the news and he cannot go to the movie theater because he becomes so angry at people in the theater. The Veteran reported feeling more depressed and that he had passive suicidal thoughts, such as “being dead would be a relief.” The examiner indicated that the Veteran has never had intent to actively harm himself, primarily because of concerns about his service dog, and that medications keep him from getting too low or hopeless. The examiner opined that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. On a January 2014 Statement, P. D., the Veteran’s wife reported that the Veteran’s mental health condition had worsened. P. D. indicated that the Veteran’s personality began to change in the early 2000s as the Veteran became more obsessed with what was happening in Iraq and Afghanistan. P. D. noted that the Veteran withdrew from his social life and became more angry and resentful. P. D. stated that the Veteran’s reaction to dreams was kicking and fighting so she began sleeping in a separate bedroom. She reported that the Veteran withdrew from his work and that six months ago he finally could no longer work at all. On a February 2014 VA Mental Health Outpatient Note, the Veteran reported that he was married for twenty years and that his wife gives him space for the most part. The Veteran noted that he had two children and two grandchildren that he saw a couple of times a year. The examiner indicated that the Veteran was cooperative, speech was spontaneous and direct, affect was mildly constricted. The Veteran denied any suicidal or homicidal ideations. On a May 2014 private Psychological Consulting Services Note, L.G. (MA, LPA) diagnosed the Veteran with Axis I: PTSD, Chronic, Severe; Axis II: Deferred; Axis III: Hypertension, DM II, Injury to left knee and ankle, and tinnitus; and Axis IV: Combat stressors in Vietnam and opined that his symptoms caused “significant disturbances in all areas of his life.” L.G. reported that the Veteran continued to suffer disruptions in all areas of his life due to his PTSD, including feeling more estranged from others. The Veteran noted that he felt like he was more short-tempered, had problems focusing and finding motivation, and had a lack of focus to find or maintain any kind of job. The Veteran indicated that he realized that he lost a number of jobs in the past because he could not get along with people. L.G. found the Veteran to be totally and permanently disabled. On a March 2015 VA Psychotherapy note, the examiner indicated that the Veteran was cooperative, speech spontaneous and directed, affect mild, and insight and judgement were fair- good. On a September 2015 PTSD Disability Benefits Questionnaire, Dr. F. R. reported that the Veteran experienced symptoms of depressed mood; anxiety; near-constant panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; flattened affect; impaired judgment; disturbance of mood and motivation; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; impairment impulse control, such as unprovoked irritability with periods of violence; and neglect of personal appearance and hygiene. Dr. F. R. indicated a diagnosed PTSD. Dr. F. R. noted that the Veteran was married to his first wife for sixteen years and that his wife said that Vietnam and the Marine Corps broke up their marriage. The Veteran indicated that he has two adult children with whom he has little contact. Dr. F. R. noted that the Veteran has been married to his second wife for over twenty years and that his wife says that he has no emotions or feelings. Dr. F. R. noted that the Veteran’s PTSD causes total occupational and social impairment. The Board finds, after a careful review of all pertinent evidence and with resolution of reasonable doubt in the favor of the Veteran, that his PTSD symptomatology warrants a 70 percent evaluation for the period on appeal. 38 C.F.R. § 4.7. In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). The Court stated that the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.” As indicated above, the Veteran has provided a detailed history of suicidal ideation that has been both remote and current. The December 2013 examiner noted that the Veteran reported having thoughts about wanting to hurt other people every 15 minutes when he is not at home, primarily people who he believes act “entitled” to something and the fact that it is against the law is what keeps him from acting on it. The examiner indicated that the Veteran also reported feeling more depressed and that he had passive suicidal thoughts, such as “being dead would be a relief.” There is also evidence the Veteran has difficulty in relationships, denying any close friends and having a strained relationship with his wife and children. However, the totality of the evidence fails to support the assignment of a 100 percent rating for the Veteran’s psychiatric disorder. Total occupational and social impairment due to the psychiatric disorder has not been demonstrated. There is no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, danger of hurting self or others, intermittent inability to perform activities of living, disorientation to time or place, or memory loss for names of close relatives, occupation, or own name. The fact that he maintains a marriage, albeit considerably strained, belies the notion of there being total social impairment. Therefore, entitlement to an initial 70 percent rating, but no higher, is warranted. In reaching this decision, the Board has considered the lay evidence. The Board is fully aware that the Veteran is competent to report his symptoms. The medical findings discussed directly address the Veteran’s contentions and the criteria under which the Veteran’s psychiatric disability is evaluated. The medical evidence indicates the Veteran has had no more than severe difficulty in social and occupational functioning. Such is consistent with the 70 percent disability ratings assigned. 2. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) A TDIU may be assigned where the schedular rating is less than total, when it is found that 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 disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran contends that he is entitled to TDIU, because he is unable to work due to his PTSD symptoms. The Veteran is service connected for PTSD, now rated at 70 percent disabling; diabetes mellitus, Type II, rated at 20 percent disabling; left ankle fracture, rated at 10 percent disabling; and hypertension, rated at 10 percent disabling. The Veteran has met the schedular portion of TDIU and criteria for eligibility under 38 C.F.R. § 4.16(a). The remaining consideration is whether the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a “living wage”) for the period on appeal. See Moore v. Derwinski, 1 Vet. App. 356 (1991). On a January 2014 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he was unable to work as a result of his service connected PTSD. The Veteran indicated that he last worked full-time in July 2013. The Veteran noted that he worked for Systex from 1988 to 1991; Encompass from November 1991 to June 1997; Research Triangle Commerce from July 1997 to January 2001 in software. The Veteran noted that he was self-employed from February 2001 to July 2013 and his company was called Second Start Professional Services. The Veteran reported that his highest education level was four years of college. The Veteran noted that he had to give up his own business due to his bad nerves and that his PTSD was getting progressively worse over the years which prevented him from sustaining gainful employment. As to medical evidence, on a December 2013 VA PTSD examination, the Veteran reported that he started his own business in 2001, specializing in the installation of Microsoft software for companies. The Veteran noted that he initially worked from home with minimal interpersonal interaction. The Veteran indicated that over the years, he and his partner had to start going into the businesses more often to install the software themselves because companies wanted people on site. He reported increased problems with anger, frustration, and “just the social aspect of dealing with the people.” The examiner reported that the Veteran noted chronic sleep problems, concentration problems, and depressed mood that would more likely than not impact his ability to complete tasks due to decreased energy and problems concentrating. The examiner indicated that the Veteran also described problems managing anger and irritability toward others in a professional setting, which he previously was able to manage per the prior VA mental health examination. The examiner noted that the Veteran reported that he was currently unable to travel or interact with business associates in person due to concerns about his increasing anger toward others in professional settings and that these problems with social interactions would more likely than not impact his ability to successfully complete tasks that require direct contact with others. The examiner indicated that the Veteran believed that he has difficulty doing things that he knows he has to do and that he does not feel that he can interact with people without getting angry. The Veteran indicated that he does not believe that he can accomplish what needs to be done to be successful at his job. The Veteran reported that his inability to perform job duties has changed within the past four to five years and that his concentration problems cause him to be unable to sit down and complete a task. On the June 2013 private Psychological Consulting Services Note, L.G. (MA, LPA), L.G. stated that the Veteran was considered to be “totally and permanently disabled.” L. G. indicated that the Veteran was severely compromised in his ability to sustain work or social relationships because of his hypervigilance, hyperirritability, and isolating behaviors. L.G. noted that the Veteran was unable to learn new tasks due to his memory and concentration problems. On a February 2014 VA Mental Health Outpatient Note, the examiner noted that the Veteran was self-employed and worked as a software installer with minimal interpersonal interaction and that he worked from home. On a May 2014 private Psychological Consulting Services Note, L.G. (MA, LPA) stated that the Veteran felt like he was more short-tempered, had problems focusing and finding motivation, and a lack of focus to find and maintain any kind of job. The Veteran indicated that he realized that he lost a number of jobs in the past because he could not get along with people. L.G. found the Veteran to be totally and permanently disabled. On a September 2015 PTSD Disability Benefits Questionnaire, Dr. F. R. reported that the Veteran had many jobs post-service that he did not keep for very long because of his difficulty with working with others and that he owned his own business for 14 years but that he works only a little now. The Board finds that the Veteran is unable to maintain any form of gainful employment as a result of his service-connected PTSD. In pertinent part, the VA examination and treatment records and private examinations indicated symptoms of depressed mood, hypervigilance, chronic sleep impairment, concentration problems, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. In addition, the December 2013 VA examination indicated occupational and social impairment with reduced reliability and productivity. All these factors impact the Veteran’s ability to work. The symptoms of his PTSD, by virtue of the fact that his PTSD is now rated at 70 percent, creates difficulty in adapting to stress circumstances and ultimately results in deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Additionally, the Veteran reported that he was unable to manage his increasing anger towards others in a professional setting and that he lost a number of jobs in the past because he could not get along with people. The Veteran’s employment history supports a finding that he cannot maintain employment due to interpersonal conflicts with others. He left his part in his software installation company to his partner over increasing interaction and dealing with other people. Therefore, in resolving all doubt in the Veteran’s favor, the Board concludes TDIU is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel