Citation Nr: 18151572 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 17-45 323 DATE: November 19, 2018 ORDER Entitlement to an initial rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD symptoms have been manifested, at worst, by occupational and social impairment with reduced reliability and productivity; deficiencies in most areas have not been shown. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to February 1971. These matters come before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Increased Rating Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate DCs identify the various disabilities. Entitlement to an initial rating in excess of 30 percent for PTSD is granted. A. Rating Criteria PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Veteran is currently rated at 30 percent. The next highest rating is 50 percent. Under DC 9411 a 50 percent disability rating is warranted for PTSD when the Veteran experiences 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130 (2017). A 70 percent disability rating is warranted 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 work-like setting; inability to establish and maintain effective relationships.). Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant’s condition that affect his or his occupational and social impairment, including, if applicable, those identified in the fifth edition of American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-V). If the evidence demonstrates the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must 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 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the “frequency, severity, and duration” of a veteran’s symptoms “play an important role” in determining the disability level). The severity of the symptoms and the degree of occupational and social impairment they cause are independent factors. See Vazquez-Claudio, 713 F.3d at 116 (rejecting an interpretation of § 4.130 that would allow “a veteran whose symptoms correspond[ed] exactly to a 30 percent rating” to be granted a 70-percent rating solely because they affected most areas). In other words, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See id. at 118 (holding that, in determining whether a 70 percent rating is warranted, VA must make “an initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas”). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Analysis The Veteran asserts he is entitled to a higher evaluation for his service-connected PTSD. His PTSD has been evaluated as 30 percent disabling from June 4, 2016. The Board finds a 50 percent rating is warranted for the entire period on appeal due to evidence of moderate impairment resulting from disturbances of motivation and mood and a difficulty in establishing and maintaining effective work and social relationships. In June 2016, the Veteran reported problems with his memory. He reported isolating himself and having trouble maintaining relationships. He noted having a good relationship with his children. He endorsed irritability. Generally, it was found he had difficulty focusing and concentrating. On examination, anxiety and restlessness were noted. He exhibited a blunted affect. He was cooperative. His speech and tone were normal. His affect was congruent. His thought processes and content were normal. He denied hallucinations and denied suicidal or homicidal thought or injurious behavior. He was alert and oriented. In August 2016, it was noted the Veteran continued to experience anxiety, hypervigilance, and flashback triggers. He denied hallucinations or suicidal or homicidal ideation. On examination, the Veteran’s general behavior consisted of anxiety and restlessness. He had a blunted affect. His speech and tone were normal. His through processes and contents were normal. The Veteran denied memory problems. The Veteran received a VA examination in October 2016. The Veteran’s occupational and social impairment were found to include an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examination report notes the Veteran worked in the plumber’s union for 17 years and would leave jobs once people got too much for him. He eventually started his own business and was self-employed for another 17 years. It was noted he liked to work alone. He reported having a girlfriend; though, they lived in sperate residences. He reported having good relationships with his two adult children. He tended to isolate himself on his farm. He reported finding it hard to make friends but was able to make one friend who had passed away. On examination, it was noted the Veteran was casually dressed and well groomed. He presented appropriate eye contact. He was alert, oriented, and cooperative. His mood was found to be calm. He endorsed irritability. He experienced anxiety in large crowds. His affect was of full range. Speech was productive. No delusional thoughts or psychosis was found. The Veteran denied suicidal and homicidal ideation. His thought processes were logical. No apparent memory difficulties were found. Insight and judgement were adequate. The Veteran endorsed difficulties falling and staying asleep, and he experienced nightmares. His symptoms included anxiety, suspiciousness, chronic sleep impairment, and a difficulty in establishing and maintaining effective work and social relationships. The Veteran was found to be able to manage his own financial affairs. In February 2017, the Veteran noted he felt his medications were not working as well as they had worked. Socially, he reported seeing someone about once every week. He reported broken sleep. His speech was normal. He reported experiencing agitation towards the evenings. Thought processes and contents were normal. The Veteran denied suicidal or homicidal thoughts or injurious behavior. No delusions were found. He reported problems with his memory. In May 2017, the Veteran reported working on his farm until he felt tired enough to fall asleep at night. Anxiety was noted. Speech was normal. Self-isolation was documented. The Veteran’s affect was found to be constricted. He denied suicidal or homicidal ideation or any self-injurious behavior. No delusions were found. He reported problems with his memory. The Board finds the Veteran’s symptoms reflect a 50 percent rating. However, the Board also finds the criteria for a rating in excess of 50 percent for PTSD are not met at any point during the appeal period. Symptoms such as, or in equivalent in severity to, suicidal ideation, illogical speech, near-continuous panic attacks, a neglect of personal appearance and hygiene, or impaired impulse control were not found in the Veteran’s medical record. Moreover, although the Veteran is socially withdrawn and has reported trouble maintaining and developing relationships, he had remained employed for several decades until his retirement. He also reported having a girlfriend, and a good relationship with his children. Therefore, the Board finds a rating in excess of 50 percent is not warranted because the Veteran’s social and occupational impairment during this period more nearly approximated the reduced reliability and productivity contemplated by a 50 percent rating than the deficiencies in most areas contemplated by a 70 percent rating. Further, his symptoms have not been equivalent in severity to the symptoms associated with a 70 percent rating or higher. Additionally, the Board finds that the criteria for a 100 percent rating under the General Rating Formula are not met. In this regard, the evidence does not show the Veteran has 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. As there must be total occupational and social impairment to warrant a 100 percent rating, the Veteran does not meet the requirements for a 100 percent rating for his PTSD. Accordingly, the criteria for entitlement to an initial rating of 50 percent, but no higher, for PTSD have been met based on the foregoing evidence.   REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. Total disability ratings for compensation may be assigned, where 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. § 4.16 (a) (2017). With the above grant, the Veteran’s total evaluation is 50 percent. As such, the Veteran does not currently meet the schedular requirements for a TDIU. However, it is VA’s policy to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities. 38 C.F.R. § 4.16 (b) (2017). Under section 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), the RO may submit such case to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). The Board is precluded from granting a total rating under section 4.16(b) in the first instance as the authority to grant such a rating is vested specifically to the Director, Compensation Service. See id. The duty to assist regarding claims for TDIU often requires VA to obtain an examination which includes an opinion on what effect the Veteran’s service-connected disabilities have on his ability to work. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). It is the examiner’s responsibility to furnish a full description of the effects of the service-connected disability upon the Veteran’s ordinary activities which include employment. See 38 C.F.R. § 4.10. This description may include an opinion on such questions as whether a claimant’s conditions preclude standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson, 21 Vet. App. 211, 219 (2007) (the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom. Moore v Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (in a TDIU determination, VA’s duty to assist does not require obtaining “a single medical opinion regarding the combined impact of all service-connected disabilities....”); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The October 2016 examination report notes the Veteran was able to perform his work duties without a problem when he was employed, but it also noted he liked to work alone. The Veteran’s October 2016 application for unemployability states the Veteran was self-employed from 2003 until 2009, and he could no longer work due to his service-connected PTSD. Although the individual VA examination report contains some information regarding the limitations caused by the Veteran’s service-connected disability, it does not all directly and sufficiently address the question of his employability, including his ability to work with others. Therefore, as the current record does not contain an adequate opinion regarding the TDIU claim, the Board finds that the Veteran should be scheduled for a VA examination to assess the effects of his service-connected PTSD on his employability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and private medical records identified by the Veteran as pertinent to his claims. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any records would be futile. The RO must then: (a.) Notify the claimant of the specific records that it is unable to obtain; (b.) Explain the efforts VA has made to obtain that evidence; and (c.) Describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Provide the Veteran with an appropriate VA examination to evaluate the issue of entitlement to a TDIU. The Veteran’s claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on his employment. (Continued on the next page)   After a full examination and review of the claims file, the examiner should describe, to the extent possible, the impact of the Veteran’s PTSD on his occupational functioning. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck