Citation Nr: 18154242 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 16-45 737 DATE: November 30, 2018 ORDER 1. Entitlement to a disability rating higher than 50 percent for posttraumatic stress disorder (PTSD) prior to June 12, 2018 is denied. 2. Entitlement to an increased disability rating of 70 percent, but no higher, for PTSD, effective June 12, 2018, is granted. 3. Entitlement to a total disability rating based upon individual employability due to service-connected disabilities (TDIU) is granted effective June 12, 2018. FINDINGS OF FACT 1. Prior to June 12, 2018 the Veteran’s PTSD manifested in symptoms that most nearly approximated occupational and social impairments with reduced reliability and productivity or a lesser level of impairment. 2. Since June 12, 2018, the Veteran’s PTSD manifested in symptoms most nearly approximating occupational and social impairments with deficiencies in most areas. 3. The Veteran’s service-connected disabilities have precluded him from securing and following a substantially gainful occupation since June 12, 2018. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD prior to June 12, 2018 have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating of 70 percent, but no higher, for PTSD have been satisfied since June 12, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.130, Diagnostic Code 9411. 3. The criteria for a TDIU have been met as of June 12, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1967 to October 1968, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 decision by the RO in Portland, Oregon. The Veteran’s claim for entitlement to a TDIU has been raised by the record and is included in the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. PTSD Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affairs (VA) Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected PTSD with other specified depressive disorder is currently rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board notes that Diagnostic Code 9411 directs the rater to consider the appropriate rating under the General Rating Formula for Mental Disorders (Mental Disorders Formula). Under the Mental Disorders Formula, a 50 percent disability rating is warranted 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. A 70 percent disability rating is warranted when the Veteran experiences 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent disability 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). A veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran underwent a VA examination in October 2014 after his application for an increased rating in April 2014. The examiner diagnosed PTSD as well as depression secondary to (nonservice-connected) medical conditions, and found that with regards to both diagnoses the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner found it possible to differentiate the portion of the occupational and social impairment due to each diagnosis and stated that PTSD symptoms resulted in transient impairment and occasional deficiencies in work performance. According to the examiner, current symptoms included depressed mood and anxiety. On mental status evaluation, the Veteran was alert and oriented with a dysphoric mood and irritability. The Veteran reported difficulty with anger, interpersonal interactions, sleep disturbance, and nightmares. The Veteran did not report suicidal ideation or homicidal ideation. In July 2016 the Veteran underwent another VA examination in connection with his claim. The examiner diagnosed PTSD and depressive disorder due to his PTSD. The Veteran reported periodic depressed mood, frequent nightmares and intrusive thoughts, sleep disruption, avoidance of talking about combat, distant from others, difficulty in experiencing happiness, mistrustfulness, irritability, difficulty concentrating, and hypervigilance. The Veteran reported periodic suicidal thought but denied suicidal ideation or intent. He also reported that he had been irritable on the job when he had last worked, indicated that he has had no close friends since Vietnam, and reported having difficulty concentrating since his PTSD worsened in 2012. The examiner stated that the Veteran’s marriage had been conflictive due to his anger, but had shown some improvement, and that the Veteran sees his adoptive daughter from a previous marriage once a year. The examiner stated that the Veteran volunteers once a week for Veteran Service Organizations (VSOs), but does not socialize. The examiner noted that current symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. In June 2018 the Veteran underwent a private psychological evaluation with a psychiatrist. According to the Veteran’s private examination, the Veteran exhibited depressed and irritable mood, anhedonia, worthlessness, low energy, cognitive difficulties, poor sleep, hopelessness, and suicidal ideation on a rare basis. The examiner stated that the Veteran’s marriage has suffered due to his PTSD and depression symptoms. The psychiatrist noted the Veteran reported that he has withdrawn himself from volunteer activities and stays at home in a state of despair and hopelessness. The examiner reported that the Veteran says he engages in no pleasurable activities, has no friends, and rarely sees his wife. The examiner stated the Veteran described severe neurovegetative symptoms, extensive despair, and a complete incapacity to engage in society. The examiner stated that the Veteran’s wife is a caregiver who assists the Veteran with basic hygienic tasks, and that the Veteran will not brush his teeth for a week at a time, not shower, and not attend to bodily functions. The examiner reported that the Veteran spoke with a flattened affect, and said that the Veteran describes his mood as awful. The examiner found the Veteran was dysphoric, and displayed perseveration of his medical and psychological problems and wish to die, and displayed thought blocking. The examiner found the Veteran is not homicidal, not delusional, and did not have flight of ideas or looseness of associations. The examiner found that the Veteran’s thought processing was linear, he had no hallucinations, and was cognitively intact. The private examiner pointed out that his findings were at odds with all previous VA examinations. The private examiner stated that the VA examiners arrived at the correct diagnosis, but that the VA examiners severely minimized the Veteran’s intensity of symptomatology to suggest that the Veteran would be able to go back to work due to transient symptoms of PTSD. The private examiner maintained that the Veteran’s symptoms were not transient, but rather were constantly present, progressive, and debilitating. The private examiner opined that whether the Veteran had any physical illness or not, he would still be unable to work due to mental illness. In 2014 and 2018, the Veteran’s wife provided statements regarding the state of the Veteran. She stated that the Veteran cannot complete everyday tasks such as paying bills and keeping appointments. She stated that he has mood swings and displays anger. She states that the Veteran isolates himself, has trouble sleeping, memory loss, and occasionally fails in self-care. She said that he is in pain, and that he feels that life is not good. The Veteran’s daughter provided a statement in December 2014. She stated that her relationship with the Veteran has suffered because of his depression, and that the Veteran needs more help. A friend also provided a statement in December 2014 regarding the Veteran’s symptoms. The friend stated the Veteran had become more withdrawn, and demonstrated extreme anger, lack of concentration, physical and mental pain, and suicidal thoughts. The Veteran’s attorney also provided group therapy notes regarding the Veteran, which stated as of September 2016, “His mood has very much improved with return of sense of humor and positive outlook. A lot of this improvement has been secondary to his progress with his disability claim.” Other comments from therapy in 2014 and 2015 state the Veteran appeared “happier” and “feeling better” on some days; however, these comments are mixed with observations that the Veteran appeared “upset” and “feeling defeated” about his disability rating and pursuing his disability claim. An August 2017 treatment record stated that the Veteran’s treatment at the time allows for adequate sleep and performance of activities of daily living. The same treatment record also stated that as of August 2017, the Veteran was still active with a VSO, recruiting members and helping in fund raising. The Board finds that a rating in excess of 50 percent is not warranted prior to June 12, 2018. While the Veteran has reported thoughts of death, he has reported that suicidal ideation is rare, and with no plan or intent. Importantly, even when considering the Veteran’s suicidal ideation, the June 2016 VA examiner found that the overall level of impairment was only occupational and social impairment with reduced reliability and productivity. Obsessional rituals are not present and near-continuous panic was not reported during this period. While the Veteran had depression during this period it did not rise to the level of affecting the ability to function independently, appropriately, or effectively. The Veteran did not demonstrate impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was oriented and was aware of time and place. While some level of difficulty with stressful situations and relationships is demonstrated, this did not rise to the level of difficulty in adapting to stressful circumstances (including work or a worklike setting) or an inability to establish and maintain effective relationships. He was also married and had a relationship with his adoptive daughter. He reported attending church and volunteering as well. Even when considering all of the reported symptoms the October 2014 and June 2016 VA examiners opined the Veteran’s overall level of occupational and social impairment was reduced reliability and productivity or a lesser level of impairment. Evidence from September 2016 and August 2017 stated improvements in mental health, and continued engagement in volunteer activities that demonstrate a disability rating higher than 50 percent was not warranted prior to June 2018. While the June 2018 private examiner suggests that the VA examinations are somehow not representative of the Veteran’s condition at those times, the Board disagrees. The VA examinations were conducted by trained medical professionals who interviewed and evaluated the Veteran. The Veteran’s input was sought and considered in the examination reports. The Board finds these examination reports highly probative and, as they are contemporaneous to the time period at issue, more probative than the June 2018 private examiner’s suggestion that looking retrospectively the condition was worse than noted by the VA examiners. The Board has considered the lay statements submitted on the Veteran’s behalf and recognizes his condition may fluctuate to some degree. However, the overall disability picture shows no more than occupational and social impairment with reduced reliability and productivity as explained above. Beginning June 12, 2018, the Board finds that the evidence demonstrates that a disability rating of 70 percent, but no higher, is warranted. In that regard, the evidence demonstrates that the Veteran suffered from symptoms including, and commensurate with, suicidal ideation, near-continuous panic or depression affecting the ability to function, unprovoked irritability, more frequent neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and severe difficulty establishing and maintaining effective relationships. The evidence indicates deficiencies in thinking, mood, and relationships, and that these symptoms appear to have permeated all aspects of his life. As a result, the Board concludes that the evidence as a whole more nearly approximates the criteria for a disability rating of 70 percent from the period after June 12, 2018, the date when there is evidence that more severe PTSD and depression symptoms had manifested. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board does not find, however, that a total disability rating is warranted at any time. The evidence does not suggest gross impairment in thought processes, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, severe memory loss, disorientation to time or place, or other symptoms in line with the criteria for a total rating. The June 2018 examination stated that the Veteran can communicate, has a linear thought process, and is cognitively intact. The Veteran had no hallucinations or delusions. The Veteran does not show gross impairment in thought processes or communication; rather, the examiner observed the Veteran’s thought process as “linear and logical.” The examiner did not make a finding of grossly inappropriate behavior, and the record does not indicate grossly inappropriate behavior. The examiner did not find a persistent danger of the Veteran hurting himself or others in that the Veteran was found to have suicidal ideation, but without plan or intent, and was not homicidal. While he had difficulty with maintaining personal hygiene, he was able to do so with assistance from his wife. He was able to maintain a relationship, albeit occasionally strained, with his wife and his daughter. The examiner made no finding that the Veteran had disorientation to time or place. The examiner’s findings did not demonstrate severe memory loss such as loss for names of closest relatives, and the Veteran was able to give a chronologic account of his life. Although the examiner and the Veteran’s wife stated that the Veteran forgets to pay bills and other routine actions, such memory loss is not the sort contemplated for a 100 percent disability rating. Accordingly, the sum of the evidence is against a finding that the Veteran has a total occupational and social impairment required for a 100 percent disability rating for PTSD. For these reasons, the Board finds the criteria for a disability rating in excess of 70 percent for PTSD have not been met at any time during the pendency of the appeal. 38 C.F.R. § 4.130. The General Rating Formula for Mental Disorders contemplates all symptoms causing occupational and social impairment. 38 C.F.R. § 4.130. As such, there is nothing exceptional or unusual about the Veteran’s disability picture and referral for consideration of a rating on an extraschedular basis would not be appropriate. 38 C.F.R. § 3.321(b)(1). 2. TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). The Veteran is service connected for PTSD, tinnitus, and bilateral hearing loss. In this case, the Veteran now meets the schedular criteria for TDIU consideration from June 12, 2018 forward, but not prior to that date. However, referral to VA’s Director of Compensation Service for consideration of a TDIU on an extraschedular basis would be warranted if the evidence showed the Veteran was unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Upon review, the Board finds the evidence demonstrates that the Veteran’s service connected disabilities prevented him from securing and following a substantially gainful occupation since June 12, 2018 but not earlier. The Veteran had a steady work history and worked for a city water treatment plant for nine years, then worked as a warehouseman for 25 years, a home inspector for approximately three years, and in inventory management for another three years before stopping work due to osteoporosis in 2009. As for education, the evidence shows that the Veteran has a high school education, having graduated in 1965, and two years of community college in or about 1977 and 1978. When he was still working, the record indicates that the Veteran had difficulty working with other people. The June 2018 private assessment provides evidence that the Veteran has withdrawn from society, and that there has been a severe worsening of his symptomatology. The symptoms include suicidal ideation, near-continuous panic or depression affecting the ability to function, unprovoked irritability, more frequent neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and severe difficulty establishing and maintaining effective relationships. The evidence from the June 2018 private assessment indicates deficiencies in thinking, mood, and relationships, that these symptoms appear to have permeated all aspects of his life, and the examiner opines that the Veteran is unemployable. This change in the Veteran’s disability picture suggests that his mental health would preclude his ability to maintain functioning in a workplace. Therefore, a TDIU is warranted as of June 12, 2018, the date upon which the evidence first shows the Veteran was unemployable. A TDIU is not warranted prior to June 12, 2018. During this period the Veteran was qualified for a number of positions given his post high school education and work experience doing physical labor as well as semi-skilled positions such as a home inspector and inventory management. Significant effects on employment from hearing loss and tinnitus are not shown during this period, although the Board recognizes that these conditions could have a slight impact on communication. The Veteran was not service-connected for any musculoskeletal or other condition that would affect his ability to engage in employment of a physical nature. Essentially, the Veteran contends he was precluded from all types of employment due to his PTSD. As noted above, as to the severity of this condition and impairment caused by it, the Board finds the VA examinations during this period to be the most probative evidence. The examinations were performed contemporaneous to the period at issue as opposed to the June 2018 private examiner’s attempt to retroactively determine disability. This is not to say that the private examiner’s opinions are of no value, but rather that the contemporaneous examination reports are more persuasive. The October 2014 VA examiner determined that the Veteran’s PTSD resulted in transient impairment and occasional deficiencies in work performance and the June 2016 examiner determined that the PTSD resulted in reduced reliability and productivity. Overall, the Veteran was qualified for a number of physical and semi-skilled professions during this period and the most probative evidence shows he could have engaged in this type of employment despite the impairment from his PTSD. The Board recognizes that the Veteran may have had difficulties with a position with a lot of interaction with people but finds that given his occupational background and education there would have been a number of positions for which he was qualified that would have entailed a lesser degree of interaction with others. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ruben D. Rudolph, Jr., Associate Counsel