Citation Nr: 18153804 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-46 114 DATE: November 29, 2018 ORDER A disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability evaluation based on individual unemployability due to a service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran’s PTSD is manifested by symptoms of the type and extent, frequency, and/or severity (as appropriate) that are indicative of no more than occupational and social impairment with deficiencies in most areas. 2. The Veteran’s service-connected posttraumatic stress disorder (PTSD) precludes substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for an award of TDIU due to service-connected PTSD have been satisfied. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.340, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for PTSD and assigned a disability rating of 30 percent effective January 27, 2012. During the pendency of the appeal, an August 2016 rating decision increased the Veteran’s disability rating for PTSD from 30 to 50 percent, effective January 27, 2012. As the granted increase in disability rating does not represent a total grant of the benefit sought on appeal, the claim for an increase remains on appeal. AB v Brown, 6 Vet. App. 35, 39 (1993). Also during the pendency of the appeal, the Veteran filed an application for TDIU in May 2017. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, the Board will also address the Veteran’s TDIU claim in the decision below. 1. Entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran contends that his currently assigned 50 percent disability rating does not adequately compensate him for the symptoms associated with his service-connected PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. PTSD is rated using the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a 50 percent evaluation will be assigned with evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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. A 70 percent 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 ideations; 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 the veteran’s 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 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 the 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. After review of the medical and lay evidence in this case, the Board finds that a disability rating of 70 percent, but no higher, is warranted for the entirety of the appeal period. A VA examination was conducted in September 2013. The examiner noted that the Veteran presented with symptoms including depressed mood; anxiety; suspiciousness; chronic sleep impairment; and, difficulty in establishing and maintaining effective work and social relationships. In addition to these symptoms, the examiner also noted the Veteran reported nightmares; difficulty being in crowds; reactions to stimuli similar to his Vietnam experiences; a history of difficulty in relationships; irritability; panic attacks in crowds; social isolation; mistrust; hyper-vigilance; and, heightened startle response. The examiner also noted the Veteran reported he was in his third marriage; that he drank heavily after returning from Vietnam; that he ruined two marriages because of his drinking; and, that he has had no alcohol treatment, no mental health treatment, and not been prescribed any psychotropic medication. As for symptoms specific to PTSD, the examiner noted the Veteran had irritability or outbursts of anger; difficulty concentrating; markedly diminished interest or participation in significant activities; hypervigilance; and, feelings of detachment or estrangement from others. The examiner then opined that the Veteran’s PTSD resulted in occupational and social impairment with 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. VA treatment records from the Indianapolis VAMC are associated with the Veteran’s case file. In summary, these records reflect the Veteran had symptoms consistent with occupational and social impairment with deficiencies in most areas. A February 2012 psychiatric note reflects the Veteran reported sleeping a few hours a night; feeling more depressed; nightmares two to three times per week which seem to be getting worse; that he did not want to leave the house; and, that he just wanted to be by himself. The examiner noted the Veteran’s overall mood was depressed and irritable, and that the Veteran had no energy or motivation. The examiner also noted the Veteran states he feels “suffocated” when he is around others; that he was very tearful due to wartime memories; and, that being in a dark room is the most comforting. A September 2015 psychology note reflects the Veteran checks his locks on doors and windows three to four times each night, and insists on reorganizing his wife’s placement of dishes in dishwasher. A March 2016 psychotherapy note reflects the examiner stated, “Given the severity of his [the Veteran’s] symptoms, it is surprising that he is only 30% service-connected for PTSD.” A June 2016 record reflects the Veteran reported his concerns about having a gun in the house or even talking about having a gun in the house as it reminds him of experiences in Vietnam. The examiner noted the Veteran was distraught, choked up, tearful, and unable to talk for a few minutes. The examiner again remarked that given the severity of his symptoms, it was surprising that he is only 30% service connected for PTSD as his PTSD significantly interferes in his life. An April 2016 letter from a private psychologist is also associated with the Veteran’s case file. In this letter, the psychologist states the Veteran has very severe limitation of social and occupational functioning imposed by his PTSD, and that in his opinion, the Veteran has deficiencies in most areas such as work, thinking and mood due to extreme intrusion symptoms, hypervigilance and profound social isolation. Lay evidence in this case includes buddy statements from the Veteran’s wife and daughter. The Veteran’s wife states the Veteran spends time alone in his room for 20 hours or more a day; that he eats dinner in there by himself; that he cries often; that he doesn’t have close friends anymore; that he is far from his family and keeps in touch with one of his daughters; that when her family comes over he will come out and say hi and will go back to his room; and, that he is very specific about his dishes and rearranges them because the dishes have to go in the dishwasher a certain way, the cups in the cupboard have to be a specific way, and he checks. The Veteran’s daughter states conversations with the Veteran are sometimes not pleasant because he becomes agitated, irritated and loses his cool quickly. She has seen him throw a phone and a TV remote when he gets irritated. Upon consideration of the medical and lay evidence in this case, including the opinion of the private psychologist who found the Veteran’s mental health symptoms resulted in very severe limitation of social and occupational functioning, the Board finds that a rating of 70 percent is appropriate in this case for the entirety of the appeal period. The Board also finds that a rating of 100 percent is not appropriate in this case at any point during the appeal period. This is so because the record does not reflect that, at any time during the appeal period, the Veteran has exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 100 percent rating, such as gross impairment in thought process 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; or memory loss for names of close relatives, own occupation, or own name. Thus, a 100 percent rating is not warranted for this Veteran’s PTSD at any point during the appeal period. In conclusion, the Board finds that, for the relevant period on appeal, the Veteran’s PTSD symptoms demonstrated occupational and social impairment with deficiencies in most areas. Therefore, a rating of 70 percent, but no higher, for PTSD is warranted for the entirety of the appeal period. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to TDIU. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a). Here, the Veteran is rated at 60 percent or more for a single service-connected disability, PTSD, which is rated at 70 percent disabling. As such, the Board will proceed with review of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. In his May 2017 application for TDIU, the Veteran states that his service-connected PTSD prevents him from securing or following any substantially gainful occupation; and, that he works part-time, from 2012 to the present, as a grounds keeper on a golf course. A VA examination was conducted in September 2013. The examiner noted that the Veteran had difficulty in establishing and maintaining effective work relationships with symptoms that included irritability; panic attacks; social isolation; mistrust; hyper-vigilance; heightened startle response; outbursts of anger; difficulty concentrating; and, feelings of detachment or estrangement from others. As it relates to employment, the examiner noted that the Veteran reported he was working part-time at a golf course for 5 years; that prior to retirement, he worked for General Tire Company for 35 years; and, that he retired from the tire company after having a stroke in 1994. The examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. VA treatment records from the Indianapolis VAMC are associated with the Veteran’s case file. In summary, these records reflect the Veteran had symptoms consistent with occupational and social impairment with deficiencies in most areas. A February 2012 psychiatric note reflects the Veteran reported sleeping a few hours a night; feeling depressed; not wanting to leave the house; and, that he just wanted to be by himself. The examiner noted the Veteran’s overall mood was depressed and irritable, and that the Veteran had no energy or motivation. A March 2016 psychotherapy note reflects the examiner stated, “Given the severity of his [the Veteran’s] symptoms, it is surprising that he is only 30% service-connected for PTSD.” A June 2016 record reflects the Veteran reported his concerns about having a gun in the house or even talking about having a gun in the house as it reminds him of experiences in Vietnam. The examiner noted the Veteran was distraught, choked up, tearful, and unable to talk for a few minutes. The examiner again remarked that given the severity of his symptoms, it was surprising that he is only 30% service connected for PTSD as his PTSD significantly interferes in his life. An April 2016 letter from a private psychologist is also associated with the Veteran’s case file. In this letter, the psychologist opined that the Veteran has severe limitations of social and occupational functioning, and that these limitations have rendered him unemployable since 2012. Lay evidence in this case includes buddy statements from the Veteran’s wife and daughter. The Veteran’s wife states the Veteran spends time alone in his room for 20 hours or more a day; that he eats dinner in there by himself; that he cries often; and, that he doesn’t have close friends anymore. The Veteran’s daughter states conversations with the Veteran are sometimes not pleasant because he becomes agitated, irritated and loses his cool quickly. She has seen him throw a phone and a TV remote when he gets irritated. Upon consideration of the medical and lay evidence in this case, including the opinion of the private psychologist who found the Veteran’s mental health symptoms resulted in very severe limitation of social and occupational functioning, the Board finds that the Veteran’s service-connected PTSD precludes him from obtaining substantial gainful employment. The September 2013 VA examiner noted the Veteran has difficulty in establishing and maintaining effective work relationships due to his PTSD. In addition, the April 2016 private psychologist noted the Veteran has severe limitations of social and occupational functioning, and that these limitations have rendered him unemployable since 2012. In light of these two opinions, the Board finds that the Veteran’s service-connected PTSD has rendered him unable to secure or follow a substantially gainful occupation. As such, the criteria for an award of TDIU due to service-connected PTSD have been met. Entitlement to an award of TDIU is warranted. K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel