Citation Nr: 18154586 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-45 948 DATE: November 30, 2018 ORDER Entitlement to a disability rating of 70 percent, but no more, for posttraumatic stress disorder (PTSD) is granted on and after February 27, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s PTSD, throughout the period on appeal, has been manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and total social impairment. 2. The Veteran’s service-connected disabilities have met the percentage requirements for the award of a schedular TDIU, and the evidence indicates that the nature and severity of these disabilities prevent him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, on and after February 27, 2013, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for the award of a TDIU have been met. 38 U.S.C. § 1155, 5107; 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 in the Army from November 1966 to November 1968, including combat service in the Vietnam War, for which his decorations included the Bronze Star Medal and the Purple Heart. These matters are on appeal from an April 2014 rating decision. On February 12, 2018, the Veteran elected to participate in VA’s Rapid Appeals Modernization Program (RAMP), selecting the option for “Higher-Level Review.” However, appeals that have been activated by the Board are not eligible for RAMP processing. This appeal was activated by the Board on February 6, 2018, prior to the receipt of the Veteran’s RAMP opt-in election. As described in further detail below, the Veteran’s representative has submitted a claim in March 2018 that the Veteran is unemployable as a result of his service-connected PTSD. VA most recently denied the Veteran’s TDIU claim in October 2016. The Board finds that the issue of entitlement to a TDIU has been raised by the March 2018 claim in connection with the claim on appeal for an increased rating for the Veteran’s PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative have raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. PTSD The Veteran contends that his PTSD warrants a higher rating than that currently assigned. It is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD, with a 50 percent rating on and after February 27, 2013. The full period of service connection is on appeal. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “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). 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). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In adjudicating a claim for VA benefits, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b). VA is to resolve any reasonable doubt in the Veteran’s favor. 38 C.F.R. § 3.102. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that 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- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when 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; 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, occupation, or own name. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. See Vazquez–Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Veteran has submitted a March 2013 medical opinion by his private treatment provider, who diagnosed PTSD, body dysmorphia, low mood, and panic disorder. The treatment provider noted that the Veteran had retired in the past two years. The treatment provider noted the Veteran’s symptoms as visualizations of combat, panic attacks, hypervigilance, sadness, and deteriorated social functioning. The Veteran has also submitted a February 2014 medical opinion by the same private treatment provider, who added that the Veteran’s symptoms included claustrophobia, intermittent explosive difficulties, and olfactory hallucinations and that his symptoms had left him unable to engage in meaningful employment. During a March 2014 VA treatment appointment, the Veteran reported anxiety, depression, intrusive thoughts, nightmares, hypervigilance, an exacerbated startle response, emotional numbing, and social isolation. He was appropriately groomed, his motor activity was normal, his speech was fluent and coherent without pressure or latency, his mood was “very anxious,” his affect was anxious, he denied any hallucinations, his thought flow was spontaneous, linear, logical and goal directed, his thought content was without delusions or paranoia, he denied suicidal and homicidal ideation, he was alert and oriented to all spheres, his memory was grossly intact, and his attention was fair. The treatment provider found that the Veteran was not a danger to himself or others. During another March 2014 VA treatment appointment, he reported a short temper. VA treatment records report the Veteran’s symptoms as generally similar through the remainder of 2014 and into 2015. The Veteran was afforded a VA examination in April 2014. The Veteran reported that he had one younger sibling and had been married to his spouse for 42 years. He also reported that he worked for the same employer for 41 years prior to his retirement and that he retired to preserve his pension. The examiner listed the Veteran’s symptoms for rating purposes as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The examiner characterized the Veteran’s overall level of functional impairment as occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating. In April 2014, the Veteran submitted a statement by a friend who had known him since childhood. He reported that, after his separation from active duty service, the Veteran “got into fights whenever he did not like what was going on around him,” that these fights were unpredictable and that, when they happened, the Veteran “would not stop beating the person until someone pulled him off.” It is not clear from the statement whether this behavior persisted to the period on appeal. The Veteran has also submitted an April 2014 statement by his spouse, a registered nurse. She reported witnessing the Veteran’s road rage shortly after their marriage and that, over the years, his “hair-pin trigger temper” had scared her countless times. She provided examples of the Veteran’s temper but did not place them within any particular timeframe. In an April 2014 statement, the Veteran also reported an explosive temper after his separation from active duty service. He added that he chose not to become a police officer because he worried that he might shoot someone if he felt that they provoked him. He also reported that he separated from his spouse due to his temper in 1975 and that they later reunited. He also reported that his spouse had never permitted him to own a gun for fear he would kill her or someone else but that he slept with a hunting knife near him. He also reported reckless driving and difficulty with focus and concentration. He added that having to describe his stressors as part of the claims process had increased the frequency of his panic attacks to three to four times a week. The Veteran has also submitted a March 2015 examination by his private treatment provider. The Veteran reported that his spouse, adult children, and grandchildren were supportive. He also reported that his violence and emotional volatility continued to impact his marriage and his spouse reported that she was considering divorce. He ascribed his early retirement to stress, depression, and anxiety. The examiner listed the Veteran’s symptoms for rating purposes as depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, speech intermittent illogical, obscure, or irrelevant, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals interfering with routine activities, impaired impulse control, and spatial disorientation. The examiner characterized the Veteran’s overall level of functional impairment as occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating. The examiner found the Veteran unemployable due to PTSD symptoms of depression, isolation from other people, inability to sleep, fear of rage, and frequent vertigo attacks. (The Veteran has claimed service connection for a vestibular disorder, which VA has denied and which is not before the Board.) The examiner also found that, in the past year, the Veteran’s mental health had deteriorated to a point at which it was “hard for him to keep up with the day-to-day routine of a middle class life.” The Veteran has also submitted an April 2015 examination by a private psychiatrist. The Veteran reported that he had held his spouse at knifepoint during a flashback when he thought that he was being attacked, but it is unclear whether this took place during the period on appeal. He reported daily nightmares, flashbacks, agoraphobia, and panic attacks. The examiner listed the Veteran’s symptoms as flashbacks, nightmares, greatly exaggerated startle response, hypervigilance, paranoia, panic attacks, sleep disturbance, outbursts of anger and aggression, and depression. The examiner found that the Veteran was unable to work and had poor social functioning at home due to the “chronic, persistent and omnipresent nature of his symptoms.” During an April 2015 VA treatment appointment, the treatment provider found that the Veteran’s symptoms had a moderate to serious impact on his overall level of functioning. The Veteran denied suicidal ideation but reported that he felt so overwhelmed that he sometimes did not want to wake up in the morning. He reported frequent irritability but denied thoughts of harming others. He reported no recent violence. During a September 2015 VA treatment appointment, the Veteran characterized his relationship with his children as good. The Veteran was afforded an additional VA examination in September 2016 by the same examiner who performed the April 2014 VA examination. The Veteran reported that he remained married but his spouse had recently moved to a separate house. He also reported that his adult daughter had recently moved in with him. He reported having a few friends and that they were also veterans. He also reported that, prior to his retirement, he had problems but was usually able to resolve them with a transfer; he added that he had physically confronted his last boss for lying to him. The examiner listed the Veteran’s symptoms for rating purposes as depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner characterized the Veteran’s overall level of functional impairment as occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating. The examiner characterized the Veteran’s capacities for understanding and memory, sustained concentration and persistence, social interaction, and adaptation as fair. During a March 2017 VA treatment appointment, the Veteran reported that he was again living with his spouse. He denied homicidal ideation but reported that he would kill anyone who tried to kill him or his family or to hurt his daughter. The Veteran has also submitted a March 2018 examination by the same private psychiatrist who performed the April 2015 private examination. The Veteran reported that his spouse, adult children, and grandchildren were supportive but that he had limited support from his family and the community. He reported that he retired early due to PTSD-related stress and increased symptoms of depression and anxiety. The examiner listed the Veteran’s symptoms for rating purposes as depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, memory loss for names of close relative, his occupation, or his own name, speech intermittently illogical, obscure or irrelevant, gross impairment in thought processes or communication, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals, impaired impulse control, spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, and disorientation to time or place. The examiner found that the Veteran was unemployable due to PTSD symptoms of depression, isolation from other people, inability to sleep, and fear of rage and inappropriate behavior in public. The examiner characterized the Veteran’s overall level of functional impairment as total occupational and social impairment, which is consistent with a 100 percent rating. During an April 2018 VA treatment appointment, the Veteran reported a history of hitting his spouse with a lamp and pulling a knife on his family; it is not clear whether these incidents took place during the period on appeal. He reported passive suicidal ideation for the past five years and some visual hallucinations of people at night. He also reported that he continued to live with his spouse. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his psychiatric symptoms and overall disability picture warrant an evaluation of 70 percent for PTSD throughout the period on appeal. The record contains evidence of suicidal ideation, obsessional rituals, intermittently illogical, obscure or irrelevant speech, near-continuous panic or depression, 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, and inability to establish and maintain effective relationships. For this reason, the Board finds that Veteran’s symptoms most nearly approximate those that warrant a 70 percent rating throughout the period on appeal. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board does not, however, find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran’s symptoms at any point during the period on appeal. The record contains evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, disorientation as to time or place, and memory loss for the names of close relatives, his occupation, or his own name. Self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that many of these symptoms appear only in the March 2018 private examiner’s report, which did not provide examples in support of its findings despite their inconsistency with the Veteran’s treatment records and the other examination reports. However, it is unnecessary for the Board to determine whether these symptoms are present. Even the constant presence of some symptoms listed in the criteria for a 100 percent rating is insufficient because the overall guiding criterion for a 100 percent rating is that both total occupational and total social impairment be present. 38 C.F.R. § 4.130; see, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Veteran’s symptoms have not been shown to be so severe that he has both total occupational and total social impairment. The Board acknowledges that, in this decision, it has found the Veteran to be unemployable due to his service-connected disabilities, but the Veteran has been able to maintain some personal relationships, specifically with his spouse, children, grandchildren, and friends who were veterans themselves. The Board acknowledges that these relationships are sometimes strained or distant, but that is reflected in the current 70 percent rating for “deficiencies in most areas,” including inability to establish and maintain effective relationships. Because the Veteran is not totally socially impaired, a 100 percent rating is not warranted. The Board also notes that many of the Veteran’s reported symptoms throughout the period on appeal are included among those specifically listed in the General Rating Formula for Mental Disorders, pursuant to which a 70 percent disability rating has been assigned. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran’s extent of occupational and social impairment. Accordingly, in this case, the Board finds that the existence and severity of the Veteran’s psychiatric symptoms are adequately contemplated by the 70 percent rating criteria. As noted above, many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board has also considered the Veteran’s assertions regarding his psychiatric symptoms, which he is competent to provide, as well as those of his spouse and friend. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The lay evidence is also credible. The Board also notes that the Veteran’s spouse, as a registered nurse, is not a layperson. The symptoms described in these statements, however, comport with the 70 percent rating that has now been assigned. These statements do not provide any basis upon which to assign a higher rating because they do not reflect total social impairment. In sum, the Board finds that, resolving reasonable doubt in the Veteran’s favor, his impairment due to PTSD has been most consistent with a 70 percent disability rating throughout the period on appeal. 2. TDIU VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran’s current combined disability rating, after the increased rating granted above, is 70 percent: his PTSD is rated 70 percent disabling and his tinnitus is rated 10 percent disabling. See 38 C.F.R. § 4.25 (2017). The criteria for consideration of a schedular TDIU are therefore met. (Continued on the next page)   The Board has discussed the evidence regarding occupational impairment caused by the Veteran’s PTSD in the context of the increased rating claim. Both private examiners have found the Veteran unemployable as a result of his service-connected PTSD and explained the symptoms underlying their findings. The VA examiner found that the Veteran retained “fair” functional capacity but did not provide any rationale for this conclusion. For this reason, the Board finds that the private examiners’ opinions with regard to the issue of employability are of greater probative weight than that of the VA examiner. The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities have rendered him unemployable under the applicable regulations. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel