Citation Nr: 18154776 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-51 118 DATE: December 4, 2018 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based upon individual employability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD symptoms have resulted in total social and occupational impairment, which constitutes a total disability rating. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, DC 9411 (2017). 2. Entitlement to TDIU is dismissed as moot. 38 U.S.C. § 7105; 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s PTSD has been evaluated under Diagnostic Code 9411 as 70 percent disabling. 38 C.F.R. § 4.130 (2017). The General Rating Formula for psychiatric disabilities provides that a 70 percent rating is warranted when 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; 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 a work-like setting); and inability to establish and maintain effective relationships. A maximum 100 percent rating is warranted 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; 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. The rating agency shall assign a rating 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). VA will also consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). 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 occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). The Board finds that the Veteran’s symptoms of PTSD are of such frequency, duration and severity that they equate to total occupational and social impairment throughout the appeal period. Therefore, a 100 percent disability rating for PTSD is warranted. The Veteran has sought treatment for his PTSD since 2013. From 2013 – 2015, the Veteran was seen at the community-based outpatient clinic (CBOC) in York, Pennsylvania. The evidence notes that he missed several sessions while being treated at the York CBOC. He also has a history of not taking his prescribed medication, but used marijuana and alcohol to self-medicate. When the Veteran was seen and assessed in York, in general, the Veteran appeared alert, and his orientation appeared intact. He maintained a stable level of attention throughout his visits. His eye contact was fair and there was no evidence of psychomotor agitation or retardation. His attitude was cooperative and speech was normal. His thought process was linear, goal-directed, and had no flight of ideas. His associations were intact, and there was no evidence of delusion or paranoia. He denied hallucinations. His had a dysthymic mood, congruent affect, fair judgment, and fair insight. There were no abnormalities in his language. His fund of knowledge was appropriate, and his cognition was grossly intact. The Veteran reported having occasional suicidal ideations, but denied active suicidal plan or intent. He was future-oriented. There was no evidence of hallucinations or delusions nor of compulsive behavior. The Veteran then moved to Colorado where he continued to seek treatment. In an April 2015 examination for anxiety disorder, the psychologist opined that the Veteran demonstrated occupational and social impairment, with deficiencies in most areas. According to the psychologist, the Veteran was oriented to person, place, and time. He presented in civilian attire with normal motor movements. He had good hygiene and an overall neat appearance. He could answer all questions posed to him, and his responses were organized and easily understood. The Veteran reported that he struggles with memory but did not exhibit any pathognomonic signs of cognitive impairment or any mental status difficulties. He was conversational and cooperative throughout the meeting. His mood was dynamic, although his affect was a bit flat at times. His eye contact was normal and rapport was established and maintained. His speech was unpressured and of regular tone, rate, and rhythm. He demonstrated insight and consideration when discussing the nature and extent of his symptoms and struggles with anxiety. He was polite throughout the meeting. The Veteran stated that he experienced thoughts of suicide, but had no intention of harming himself. He was future oriented. He identified that he has not been interested in obtaining treatment from the VA again, but would consider getting treatment elsewhere. The psychologist noted that Veteran demonstrated serious symptoms of anxiety disorder including daily anxiety and hypervigilance, sleep disturbance, fatigue, irritability, exaggerated startle response, low frustration tolerance, and a tendency to isolate himself from all people when not at work. He also experiences daily panic attacks with ongoing suicidal ideation. The psychologist noted that his marriage has suffered because of behavioral health challenges, and he does not know if he will be getting divorced or when he will next see his daughter. He reported short term memory difficulties with no history of significant traumatic brain injury. He was considered competent to manage his financial affairs. The psychologist indicated that he has maintained employment for a few months but has missed work on multiple occasions due to behavioral health challenges including high anxiety and panic attacks. He received a GAF score of 48. On a weekly basis, the Veteran met with a provider at the Denver VA Medical Center for his PTSD in September and October 2015. Generally, he appeared alert and oriented, appropriately attired, adequate hygiene and grooming, appeared his stated age, had good eye contact, was cooperative, was pleasant, and had no overt agitation. The Veteran reported that he felt “alright, good.” His affect was generally euthymic and congruent with reported mood, appropriate to context and content, and adequately responsive. His memory appeared intact. His thought process was logical/linear, goal directed, and coherent. He had no obsessions/compulsions, delusions, or evidence of perceptual disturbances/psychosis. The Veteran denied current suicidal and homicidal ideation, plan, intent, or preparatory behavior. His attention, psychomotor, impulse control, overall cognition, insight, and judgment were all within normal limits. In the March 2016 VA examination, the examiner found that the Veteran’s level of occupational and social impairment with respect to his PTSD equates to the level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner indicated that the Veteran suffers from recurrent, involuntary, and intrusive distressing memories of the traumatic event(s) and recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s). The Veteran avoids or tries to avoid distressing memories, thoughts, or feelings or external reminders about the traumatic event(s). The examiner also indicated that the Veteran is in a persistent negative emotional state, has a markedly diminished interest or participation in significant activities, and feelings of detachment or estrangement from others. The examiner noted that the Veteran also suffers from irritable behaviour and angry outbursts typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The Veteran suffers from the following PTSD symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control, such as unprovoked inability with periods of violence. The examiner further opined that the Veteran’s PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner observed that the Veteran presented himself as alert, calm, and mildly withdrawn. His speech was of normal rate and coherent. His mood was depressed. His affect was constricted in range and depressed. While the Veteran reported that he was suicidal at intermittent times, suicidal ideation was not present at the time of the interview. His thought processes were goal directed and adequately organized. There were no psychotic features present. His insight and judgment were fair. His short-term and long-term memories were intact. The examiner opined that it makes it very difficult for him to interact with people appropriately and deal with stress appropriately. The examiner stated he has significant issues with being able to focus and concentrate and persist in work activities. Low motivation also impacts the ability to follow up to complete work activities. Notably, according to the evidence of record, the Veteran has attempted suicide twice. In May 2012, while still in the military, the Veteran made a noose of fitness cords and placed them around his neck. His wife interrupted him and called his command, who had him admitted to a private psychiatric facility near Fort Riley, Kansas. The Veteran’s second suicide attempt occurred in August 1 or 2, 2015. The Veteran reported that he got an extension cord, made a noose, and then placed it around his neck with the intention of hanging himself from his apartment balcony. He stated that he began to think about his family and did not go through with his plan. He did not seek help for weeks. Then, on August 17, 2015, he was placed on a mental health hold and admitted to the Denver VA Medical Center. While admitted, the Veteran was observed to have significant depression concomitant with intrusive PTSD symptoms and serious thoughts of self-harm. The provider stated that his outward appearance does not reveal the level of internal distress he is experiencing. He presented with significant emotional numbing combined, psychomotor retardation, and social and emotional withdrawal. The Veteran also appeared profoundly depressed with flat and blunted affect. His eye contact was direct and his speech soft and slow. The Veteran appeared neatly and casually dressed, has good hygiene. The Veteran noted that he sometimes hears people talking about him and endorses paranoia in the form of sensing that people are watching him. He had a very critical internal self-dialogue that commented on his decisions, especially when they don’t turn out the way he expects, significantly increasing his depression, hopeless and sense of despair. His thought content was hopeless, helpless, and worthless. His insight was poor and judgment was poor as evidenced by his delay in seeking treatment at the Denver VA following his second para suicidal gesture/attempt by hanging of almost 2 weeks. The Veteran also endorses mood swings and racing thoughts. In an August 2015 hospital note discussing the Veteran’s discharge, the psychiatry resident noted that the Veteran appeared casually dressed and appropriately groomed. He was somewhat cooperative with appropriate eye contact. He had no movement abnormalities or psychomotor agitation/retardation. His speech was normal. His mood was elevated and normal. His affect was evasive. He denied any current suicidal ideation and denies. He felt paranoid and uncomfortable in large groups of people. His thought process was linear and logical. His associations were intact. His vocabulary is normal and fund of knowledge is good. His insight and judgment were fair. In the August 2015 discharge summary, the nurse stated the Veteran felt to be at low acute and high chronic risk. Although the Veteran appeared guarded and minimizing or denying of recent events, the nurse indicated that further hospitalization may further alienate him from treatment at the VA. The Veteran indicated that he was willing to engage in intensive outpatient therapy but was not willing to remain inpatient and was upset to be hospitalized. He denied suicidal ideation and presented as anxious for discharge but did not appear overtly depressed or psychotic. The Veteran was considered a high-risk flag, although he denied his well-documented attempt. He was goal directed and wished to return to work/school. In August 2015, the Veteran was seen post-discharge from his hospitalization. The Veteran stated that he found that his symptoms of PTSD, anxiety and depression have not only failed to diminish but has increased. The Veteran reported that he continued to have ruminations related to the worthiness of his life. The Veteran indicated the following stressors in his life: his separation from his wife in November 2014, lack of social support, a recent move, being estranged from his family, and financial problems. He also noted that he had trouble falling asleep, staying asleep, and has nightmares. The Veteran reported that he had repeated memories of a stressful experience, memory loss, feeling irritable, or having angry outbursts, feeling distant or cut off from other people, and feeling jumpy or easily startled. He had disturbing dreams, insomnia, being super-alert, watchful, or on guard, having difficulty concentrating, and distracted by memories of the stressful event. The Veteran also reported a lack of interest or pleasure in doing things almost every day, feeling depressed, down or hopeless for several days, a lack of energy, poor appetite or overeating, feeling like a failure or getting down on himself almost every day, trouble concentrating almost every day, feeling like he would be better off dead or thinking about hurting himself almost every day, anxiety and panic attacks almost every day, and memory problems for several days. The Veteran also reported feeling paranoid or that others are about to get him. The Veteran endorsed thinking about suicide but had no intent or plan to commit suicide. With respect to the Veteran’s social relationships, the Board notes that he and his wife are currently separated due to the Veteran’s PTSD symptoms. In 2015, the Veteran and his wife separated after he left Pennsylvania to move to Colorado to seek treatment for his PTSD. Although the Veteran has since moved back to Pennsylvania, according to the evidence of record, he and his wife are still separated. With respect to employability, according to the evidence of record, the Veteran has been unemployed since December 2015. In the January 2016 Application for Increased Compensation Based on Unemployability, the Veteran stated that he worked at Hi-Performance Wash Systems in Denver, Colorado from December 2014 to November 2015. However, he noted that he missed several days of work due to lack of motivation, anxiety, depression, and lack of sleep. After moving to Pennsylvania to be with family, the Veteran worked two jobs in 2015 as a service technician and electronics assembler. However, the Veteran noted that he lost these two jobs due to suffering from depression, anxiety, and nightmares from PTSD. His employers, however, noted that he voluntarily quit from his positions. In September 2017, the Veteran underwent a vocational assessment. The evaluator reviewed the Veteran’s case file, including his examination reports, records, past relevant employment, and a dictionary of occupational titles. Based on the evidence of record, the evaluator opined that it was his vocational opinion that, due to the Veteran’s chronic symptoms of PTSD, the Veteran has been unable to maintain substantially gainful employment on a regular and consistent basis even at the sedentary level of work since December 2012 when he was medically discharged from the service. The evidence above indicates that the Veteran has been hospitalized twice after attempting suicide; he is currently separated from his wife; he avoids people due to his paranoia; and he is unemployed and unemployable due to his PTSD symptoms. While observations in his medical treatment records indicate that his symptoms are indicative of a 70 percent rating, as the provider noted in an August 17, 2015 note placing the Veteran in a mental health hold, his outward appearance does not reveal the level of internal distress he is experiencing. Based on review of the Veteran’s overall symptomatology, the Board finds that his PTSD symptoms equate in severity, frequency and duration with total social and occupational impairment for the entirety of the appeal period. Therefore, the Board finds that a 100 percent disability rating for PTSD is warranted for the entire appeal period. 2. Entitlement to a TDIU Since the Veteran is hereby awarded a 100 percent schedular disability rating for his PTSD for the entirety of the appeal period, entitlement to a TDIU is moot as a total rating has been assigned. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Therefore, the claim for TDIU is dismissed. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel