Citation Nr: 18152635 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 11-16 758 DATE: November 23, 2018 ORDER Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD), prior to March 25, 2015, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) as due to service-connected disability is granted. FINDINGS OF FACT 1. Prior to March 25, 2015, and resolving reasonable doubt in his favor, the Veteran had the condition of PTSD manifested by occupational and social impairment with deficiencies in most areas. There was not both total occupational and total social impairment. 2. The Veteran’s PTSD prevents him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are met to establish an initial 70 percent initial rating for PTSD, prior to March 25, 2015. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10; 4.130, Diagnostic Code 9411 (2018). 2. The criteria are met to establish a TDIU. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to August 1967. This case originally came to the Board of Veterans’ Appeals (Board) when the Veteran appealed from the initial rating for service connection for PTSD. The Regional Office (RO) first assigned a 10 percent rating effective from February 6, 2009, then increased the rating to 30 percent. The case was remanded in August 2014 for further development. The RO increased that rating to 70 percent, effective March 25, 2015. Then by a June 2017 Board decision, 100 percent was granted from March 25, 2015, and 30 percent rating remained prior to then. The Veteran appealed the case to the U.S. Court of Appeals for Veterans Claims (Court). The January 2018 Joint Motion for Partial Remand (Joint Motion) agreed to by the parties vacated the Board’s decision to the extent denying the rating in excess of 30 percent prior to March 25, 2015, and remanded the case back to the Board for further proceedings. The TDIU claim is not moot for the period from March 25, 2015 onwards notwithstanding the 100 percent rating already awarded for PTSD, given that there remains the potentially available benefit of Special Monthly Compensation (SMC) at the housebound rate. See Bradley v. Peake, 22 Vet. App. 280 (2008). Also, the Veteran’s attorney provided to the Board in September 2018 additional evidence consisting of a clinical evaluation report, along with a waiver of RO consideration of that evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2018). The attorney requested that the Board decide this case on the evidence available, which the Board will do as regarding the claim for an increased initial rating for PTSD. 1. Entitlement to an initial higher rating than 30 percent for PTSD, prior to March 25, 2015. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2018); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). According to VA’s General Rating Formula for Mental Disorders, a 30 percent rating is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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-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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned where there is 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; obsessed 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. A 100 percent rating is warranted where there is 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. 38 C.F.R. § 4.130. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). A veteran may only qualify for a given disability rating under section 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, section 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. Having reviewed the record with regard to the time period in question, in view of recently obtained medical evidence, the Board will grant an increased initial rating for PTSD to 70 percent, prior to March 25, 2015. The Board indicates for this finding as evidence, primarily the August 2018 clinical evaluation report from Dr. C. M., private psychologist, that the Veteran appeared to have manifested total occupational and social impairment since at least February 2009, the report further citing such ongoing consistent symptoms apparently (and elsewhere contemporaneously documented, if only intermittently). The symptomatology included: at times some hallucinations or by the Veteran’s stated description possible psychotic content, also at times; stated significant disturbances of mood including anxiety and some panic attacks; occasional instances of suicidal or homicidal ideation. Dr. C. M. acknowledged other problems with recurrent thoughts, nightmares, physiologic reactivity, avoidance of memories, markedly diminished interests, detachment and estrangement, constricted affect, irritability, hypervigilance, exaggerated startle response, sleep disturbance, depressed mood, psychomotor agitation, feelings of worthlessness or guilt, occasional homicidal ideation, recurrent thoughts of death and suicidal ideation without intent or plan; delusions and hallucinations. The Veteran also stated he had fewer friends, or relationships with family members, and had only limited employment, all since 2009. On the whole, the Board considers the foregoing symptoms and findings consistent with a 70 percent rating, which is assigned for occupational and social impairment with deficiencies in most areas. Also recognized here is the holding in the decision of Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) in that the presence of suicidal ideation alone may cause a particular case to meet the rating requirements for a 70 percent evaluation, which it does in this case. The Board further finds that the criteria for the maximum 100 percent available rating under Diagnostic Code 9411 are not met, given that the Veteran does not have both total occupational and social impairment. By granting a TDIU in this case, the Board acknowledges that the Veteran’s PTSD causes total occupational impairment. However, total social impairment is not shown prior to March 15, 2015. There are not shown the symptoms generally correlative to that level of disability impairment under Diagnostic Code 9411, including such symptoms as: gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Although not listed in the 100 percent criteria, the Board considers the Veteran’s paranoia to be the type of symptom contemplated by the 100 percent criteria. Dr. C. M. noted the Veteran’s history of going days without showering and homicidal ideation. Inability to maintain minimal personal hygiene, persistent delusions and hallucinations, and being a persistent danger to oneself or others are the types of symptoms contemplated by the 100 percent criteria. Significantly, she noted that the Veteran at one point sold everything he owned, changed his name, left his family, and moved to Texas because he wanted to get away from his life. This is the type of behavior that shows significant social impairment. However, the preponderance of the evidence does not show total social impairment prior to March 25, 2015. The evidence of record shows that although PTSD causes deficiencies in social functioning, his symptoms are not severe enough to result in total social impairment because he is able to form social relationships and interact appropriately with people. In April 2009, it was noted that the Veteran recently moved to Texas and left his family to get away from his life. Later in April 2009, a VA psychology record noted that he had positive social support and that he described his adult children as part of his support system. Treatment notes from February 2010 describe him as interactive at therapy sessions and insightful during the group therapy. In April 2010, a Vet Center treatment record showed that the Veteran had “minimal” contact with his family, but that he socialized with his neighbors. Additionally, he recently “ran into some old friends” and was going to move into a town soon and was excited about it. In November 2010 it was noted that he had a female companion who slept with him at night. This evidence shows that he is capable of forming social relationships. Regarding his hygiene, it was noted in an April 2009 record that the Veteran presented as “unkempt.” However, the other medical records show that he was appropriately groomed. The Veteran credibly reported that for days he would go without showering. However, he did not state how often this occurred. VA treatment records prior to March 15, 2015 consistently note that the Veteran was able to complete his ADLs, including grooming and bathing. The Board finds that the Veteran’s periodic inattention to personal hygiene does not rise to the level of frequency or severity needed to result in total social occupational impairment. Regarding his anger and suicidal ideation, the medical and lay evidence of record does not show that the Veteran is a persistent danger to himself or others. He has not attempted to harm himself or physically harm other people during the appeal period. Accordingly, a 70 percent rating for PTSD is granted for prior to March 25, 2015, and the claim is granted to this extent. A 100 percent rating is not warranted because total social impairment is not shown. 2. Entitlement to a TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2017). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. In such an instance, if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). As the Board grants an initial 70 percent rating for PTSD in this decision, the criteria set forth in 38 C.F.R. § 4.16(a) are met. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Whereas the August 2018 clinical evaluation from Dr. C. M., psychologist states the Veteran is not capable of substantially gainful employment due to his PTSD. She explained that he did not get along with his supervisors. He also had hallucinations, severe irritability, and paranoia. Dr. C. M. stated that the Veteran could not follow instructions in a work setting. Noteworthy further is that the report from Dr. Morgan points out the Veteran was only capable of marginal employment. The August 2009 VA examination did not find that PTSD interfered with his ability to work, but did not provide an explanation. The Veteran maintained that his service-connected tinnitus and hearing loss contributed to the employment difficulties. The Board assigns more probative weight to Dr. C. M.’s opinion. A TDIU is therefore granted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel