Citation Nr: 18152412 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-08 381 DATE: November 21, 2018 ORDER A 70 percent rating from November 23, 2011, to January 6, 2013, and since April 1, 2013, for posttraumatic stress disorder (PTSD) is granted. A total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted for the period November 23, 2011 to January 6, 2013 and since April 1, 2013. FINDINGS OF FACT 1. From November 23, 2011, to January 6, 2013, and since April 1, 2013, the Veteran’s PTSD caused difficulty sleeping, night sweats, night terrors, depression, anxiety, panic attacks at least 4 times per week, flashbacks, intrusive memories, obsession with situations and thoughts that reminded him of combat, irritability, discomfort in crowds, avoidance, rage and violence, memory impairment, concentration difficulties, difficulty following simple instructions, sensitivity to noise, a mood disorder, relationship difficulties, alcohol use, exaggerated startle response, feelings of guilt, low self-esteem, feelings of hopelessness, sense of a foreshortened future, hypervigilance, impaired impulse control, suspiciousness, flat affect, limited eye contact, diminished interest or participation in significant activities, feelings of detachment or estrangement from others, disturbances of motivation and mood, difficulty adapting to stressful circumstances, difficulty maintaining employment, was concerned that he may hurt another individual during an angry outburst, and required prescription medication. He had no suicidal ideation, hallucinations, or delusions. 2. The Veteran’s combined service-connected disorders render him unemployable for the period November 23, 2011 to January 6, 2013 and since April 1, 2013. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, from November 23, 2011, to January 6, 2013, and since April 1, 2013, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411 (2017). 2. The criteria to establish TDIU are approximated for the period November 23, 2011 to January 6, 2013 and since April 1, 2013. 38 U.S.C. § 1155 (2012). 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from January 1997 to January 2001 and in the U.S. Army from February 2001 to February 2004, from June 2004 to August 2005, and from April 2009 to June 2010. He served in Southwest Asia. In June 2018, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. Entitlement to an initial rating of more than 30 percent from November 23, 2011, to January 6, 2013, and since April 1, 2013, for PTSD. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). A 30 percent rating is warranted for PTSD where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation requires 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 evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, 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. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where, as here, the issue involves the assignment of an initial rating for a disability following the award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). A September 2011 letter from the Veteran’s VA psychologist states that he had symptoms of difficulty sleeping, night sweats, night fights, night terrors, depression, anxiety, panic attacks, nightmares, flashbacks, intrusive memories, obsession with situations and thoughts that reminded him of combat, irritability, discomfort in crowds, isolating, rage and violence, memory impairment, concentration difficulties, sensitivity to noise, and a mood disorder. A December 2011 VA treatment record indicates that the Veteran had relationship difficulties with his girlfriend, depression, tension which caused him to lash out. He reported that he was going to begin looking for work but not in security because he did not think he could be around weapons. He reported that he had been arrested and spent 2 weeks in jail after service separation because of an altercation with his girlfriend. In February 2012, the Veteran was afforded a VA examination. He reported that he had been divorced in 2005 and was living alone. He was not in a relationship and spent significant amounts of time watching television. He also lifted weights, talked with family, and fished. He had not worked since service separation. He was taking prescription medication to treat his PTSD symptoms. He drank alcohol every day and drank to the point of intoxication approximately 3 times per month. He had symptoms of recurrent distressing dreams of an in-service traumatic event; intense psychological distress at exposure to internal or external cues that symbolized or resembled the traumatic event; avoided thoughts, feelings, or conversation associated with the trauma; avoided activities, places, or people that arose recollections of the trauma; markedly diminished interest or participation in significant activities; difficulty falling or staying asleep; irritability or outbursts of anger; depressed mood; and anxiety. A June 2012 VA treatment record indicates that the Veteran had difficulty sleeping, nightmares, relationship difficulties, and was angry “all the time.” He reported that he had been living with his mother and had not been employed since service separation. He reported depression; anxiety; insomnia; anger; increased startle response; intrusive thoughts; feelings of guilt; flashbacks; nightmares; negative self-esteem or self-image; difficulty understanding, concentrating, or remembering; and isolating himself. He had no suicidal or homicidal ideation and no hallucinations. He reported no alcohol use in the prior 6 months but that he had been drinking approximately a 24 pack of beer each day until November 2011. From January to March 2013, the Veteran underwent inpatient treatment for PTSD in a VA residential program. An August 2013 VA treatment record indicates that the Veteran continued to take prescription medication to treat his PTSD. A December 2014 VA treatment record states that the Veteran had symptoms of depression, nightmares, insomnia, anxiety, anger, isolation, fatigue, low self-esteem, poor concentration, feelings of hopelessness, relationship difficulties, intrusive memories of combat, and night sweats. He reported that he was living in a community residence and was unemployed. His longest period of employment other than his military service had been 0 to 6 months in length. On his January 2015 VA Form 9, the Veteran reported that he had panic attacks approximately 3 to 4 times per week and would wake up in cold sweats. He reported memory impairment, difficulty concentrating, and “constantly [being] on alert at all times.” He reported that he had anger problems which prevented him from maintaining relationships. March, April, and May 2015 VA treatment records indicate that the Veteran had symptoms of anger, irritability, sleep impairment, intrusive symptoms, impulsiveness, depression, insomnia, depressed mood with underlying anxiety, flat affect, limited eye contact, was fidgety, and was isolated and withdrawn. He reported no drug use and rarely drinking alcohol. He was prescribed medication to manage his PTSD symptoms. He was attending school. He had good grooming and hygiene, no hallucinations, no delusions, and no evidence of psychosis. He had increased irritability and reported punching holes in the wall of his house during conflicts with his girlfriend. He denied homicidal and suicidal ideation but admitted to aggression and anger management problems. An August 2016 VA treatment record indicates that the Veteran had little interest or pleasure in doing things; felt down, depressed, or hopeless; had nightmares; avoided thinking about or situations that reminded him of in-service trauma; was constantly on guard, watchful, or easily startled; and felt numb or detached from others, activities, or his surroundings. Vocational Rehabilitation and Employment records indicate that the Veteran was found eligible for services in October 2012. At that time, he was enrolled in a Bachelor of Science program. He continued in that program until his degree completion in May 2015. He was discontinued from the program in September 2016 because he failed to respond to repeated attempts at contact. At the Veteran’s June 2018 hearing, he reported panic attacks at least 4 times per week, nightmares, flashbacks, violent outbursts, difficulty displaying emotions other than anger, difficulty concentrating and following simple instructions, memory impairment, difficulty maintaining employment due to his inability to control his anger, avoidance, making irresponsible or inappropriate decisions, difficulty maintaining relationships due to his violence and alcohol use, was easily provoked, and difficulty sleeping. He reported that he felt he may hurt someone else but, primarily, damaged property during angry outbursts rather than hurting individuals. He reported that he had been charged with criminal trespass and damage to property. He was withdrawn from his family and had been uninvited to family events due to his alcohol use and angry outbursts. He had not had stable housing since he left service. He had lived with his brother in California for a period, but angry conflicts led him to leave. He was currently living with his mother and helped with chores at her house but was not working. In July 2018, the Veteran submitted a disability benefits questionnaire (DBQ) completed by his treating psychologist. The clinician indicated that the Veteran had lost 2 jobs in the prior year, lost romantic relationships, and had his family express concerns about his anger management issues. He continued to take prescription medication for his PTSD symptoms. He had symptoms of recurrent and distressing recollections of in-service trauma; recurrent distressing dreams of in-service trauma; acting or feeling as if the traumatic events were recurring; intense psychological distress and physiological reactivity at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings, conversations, activities, places, or people that were associated with or aroused recollections of the trauma; inability to recall important aspects of the trauma; diminished interest or participation in significant activities; feelings of detachment or estrangement from others; restricted range of affection; sense of a foreshortened future; irritability or outbursts of anger; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and impaired impulse control. From November 23, 2011, to January 6, 2013, and since April 1, 2013, the Veteran’s PTSD caused difficulty sleeping, night sweats, night fights, night terrors, depression, anxiety, panic attacks at least 4 times per week, nightmares, flashbacks, intrusive memories, obsession with situations and thoughts that reminded him of combat, irritability, discomfort in crowds, was isolated and withdrawn, avoidance, rage and violence, memory impairment, concentration difficulties, difficulty following simple instructions, sensitivity to noise, a mood disorder, relationship difficulties, alcohol use, exaggerated startle response, feelings of guilt, low self-esteem, feelings of hopelessness, sense of a foreshortened future, hypervigilance, impaired impulse control, suspiciousness, flat affect, limited eye contact, diminished interest or participation in significant activities, feelings of detachment or estrangement from others, disturbances of motivation and mood, difficulty adapting to stressful circumstances, difficulty maintaining employment, was concerned that he may hurt another individual during an angry outburst, and required prescription medication. He had no suicidal ideation, hallucinations, or delusions. Given these facts, the Board finds that the Veteran’s symptoms during both periods on appeal most closely approximate a 70 percent rating. 38 C.F.R. § 4.7. A 100 percent rating is not warranted as the Veteran had no suicidal ideation, hallucinations, or delusions and was able to pursue a Bachelor of Science degree. 2. Entitlement to a TDIU The Board has reviewed the evidence and finds that with resolution of the doubt in his favor, the Veteran’s service-connected disorders preclude employment. Rice v. Shinseki, 22 Vet. App. 447 (2009). VA regulations allow for the assignment of TDIU when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the Veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). The evidence is in approximate balance as to this issue, and TDIU is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel