Citation Nr: 18155077 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-14 211 DATE: December 4, 2018 ORDER The Board having determined that a 70 percent initial rating is warranted for the Veteran’s acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), throughout the period of the claim, the benefit sought on appeal is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the period of the claim, the Veteran’s service-connected acquired psychiatric disorder, to include PTSD, has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; however, it has not been productive of total occupational and social impairment. 2. The Veteran has met the threshold percentage requirements and the evidence is at least in equipoise as to whether he is unable to obtain and maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disability. CONCLUSIONS OF LAW 1. Throughout the period of the claim, the criteria for a 70 percent initial rating, but not higher, for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. INTRODUCTION The Veteran served on active duty from June 1976 to August 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In its September 2012 rating decision, the RO granted service connection for PTSD, also claimed as depression, and assigned an evaluation of 50 percent effective June 30, 2011. The Board notes the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). A review of the record shows the Veteran’s psychiatric symptoms have been variously diagnosed. Accordingly, the Board has recharacterized the Veteran’s mental disability claim broadly, as reflected in the ORDER section of the decision, above. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an initial disability rating in excess of 50 percent for a service-connected acquired psychiatric disorder The Veteran’s acquired psychiatric disorder is rated under the General Rating Formula for Mental Disorders. Under this formula, in pertinent part, 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; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, DC 9411. 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 ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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. Id. Finally, a 100 percent rating is warranted for total occupational and social impairment due to such symptoms 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; and memory loss for names of close relatives, own occupation, or own name. Id. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The symptoms considered in determining the level of impairment under the General Rating Formula for Mental Disorders are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran’s acquired psychiatric disorder is currently rated as 50 percent disabling. The Board has carefully reviewed the medical and lay evidence of records and has determined the Veteran’s symptoms have more nearly approximated a 70 percent rating throughout the appeal period. The Veteran was afforded a VA psychiatric examination in May 2012. The examiner diagnosed the Veteran with PTSD. The examiner stated the Veteran’s psychiatric disorder manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, irritability or outburst of anger, hypervigilance, and suicidal ideation. In October 2013, the Veteran underwent an additional VA psychiatric examination. On that occasion, the examiner diagnosed PTSD, major depressive disorder, and alcohol use disorder. The examiner opined the Veteran’s major depressive disorder was most likely associated with the numerous hardships the Veteran and his wife had been dealing with over the previous four to five years. Further, the examiner noted the Veteran exhibited psychiatric symptoms associated with PTSD, including irritability, difficulty concentrating, restricted range of affect, distorted cognitions, exaggerated negative beliefs; as well as symptoms associated with major depression, including depressed mood, fatigue, feelings of worthlessness, recurrent passive thoughts of death, insomnia, low self-esteem, social withdrawal, and diminished interest or participation in significant activities. The examiner, unfortunately, did not provide a rationale for his opinion that the Veteran’s major depressive disorder was more likely than not related to causes other than his active military service. Similarly, the examiner failed to provide a rationale for opining that the above-described symptoms were attributable exclusively to the Veteran’s diagnosis of major depressive disorder. As such, the Board finds the October 2013 examiner’s opinion regarding the etiology of the Veteran’s major depression is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to be considered adequate, a medical examination report must contain not only clear conclusions and supporting data, but also a reasoned medical explanation connecting the two). The Veteran underwent an independent psychiatric evaluation in January 2015. The examiner also interviewed the Veteran’s wife for the purpose of this evaluation. The examiner diagnosed PTSD, major depression, and anxiety disorder with panic attacks. A DSM-V PTSD Scale was administered on this occasion; the examiner noted the Veteran exhibited extremely distressing symptoms that included reexperiencing symptoms of intrusive memories and reminders of in-service stressors. In this regard, the Veteran reported feeling emotionally upset on a daily basis, specifically when something reminded him of his in-service stressor. Further, he stated he would sit or lie down and be overcome with anxiety, which was accompanied by headaches and a tightening and pounding sensation in his chest, noting that it would take him several hours to recover from each of these events. The Veteran also reported experiencing strong negative feelings such as fear, horror, anger, guilt, and shame on a daily basis, as well as negative feelings of guilt and self-blame about himself. Moreover, he stated that two to three times a week he would feel so irritable or angry that he would need to remove himself from a situation, either chemically or physically, because of his fear of acting toward other individuals. The January 2015 examiner noted the Veteran had frequent suicidal ideation with a defined plan; frequent episodes of anxiety, depression, and panic, which debilitate him for several hours a day; difficulty controlling his anger; and severe startle response with any loud noise or sudden movement, triggering anxiety that could last from several minutes to several hours. As to the Veteran’s ability to establish and maintain effective relationships, the examiner noted the Veteran had not had any contact with his sister or his two surviving children in the previous 12 years. Moreover, the examiner stated that though the Veteran had been married to his current wife for 29 years, his relationship with his wife appeared to be more of a caretaker relationship rather than an effective adult-adult relationship. Based on the foregoing, the examiner opined the severity of the Veteran’s acquired psychiatric disorder met the criteria for a 70 percent disability rating. Further, the Board observes the Veteran has reported suicidal thoughts and ideation throughout the period of the claim. In this regard, the Board notes that in a recent decision, the U.S. Court of Appeals for Veterans Claims (Court) held that suicidal ideation generally rises to the level of symptomatology contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas"). Upon a careful consideration of the foregoing, the Board has determined that throughout the period of the claim, the Veteran’s service-connected acquired psychiatric disorder has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that in addition to the frequent suicidal ideation demonstrated by the record, the Veteran’s other psychiatric symptoms, to include anxiety, anger, hypervigilance, difficulty concentrating, sleep disorder, irritability, suspiciousness, panic attacks, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, have clearly caused significant occupational and social impairment. Thus, the Board finds a 70 percent rating is warranted for the Veteran’s acquired psychiatric disorder throughout the period of the claim. Upon a review of the record, however, there is no evidence of 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, disorientation to time or place, memory loss for names of close relatives, or own occupation, or own name. The record shows the Veteran has consistently denied self-harming behaviors, homicidal ideations, and thoughts of hurting himself or others. The medical evidence of record reflects he has not exhibited gross impairment in thought process or content, auditory or visual hallucinations, delusions, or disorientation to time, place, person, and situation. Further, at his January 2015 independent examination, the Veteran reported he was capable of removing himself from stressful situations that trigger his irritability and anger. In sum, based on the foregoing evidence, the Board finds that the Veteran’s social and occupational impairment have not both been “total” at any time during the period on appeal. Accordingly, the Board finds a rating higher than 70 percent has not been warranted for the Veteran’s acquired psychiatric disorder at any time during the period on appeal. 2. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body 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), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. As discussed above, the Board has determined the Veteran’s acquired psychiatric disorder warrants a 70 percent rating throughout the period of the claim. As such, the Veteran has satisfied the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). After consideration of the record, and having resolved all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected acquired psychiatric disorder has rendered him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. The record shows the Veteran was last employed in November 2009 in a warehouse position with a private company. The record also shows the Veteran’s highest level of education attained was graduation from high school. In this regard, the Veteran described attempting to complete an online course in business management in 2012 but failed all of his classes because he was unable to stay focused and complete the required assignments. As noted above, the Veteran’s service-connected psychiatric symptoms have included difficulty concentrating, hypervigilance, exaggerated startle response, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, irritability, social withdrawal, outbursts of anger, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, as well as suicidal ideation. In an occupational setting, these symptoms clearly would result in problematic interpersonal interactions. The Veteran’s claim is also supported by the medical evidence of record. The December 2013 VA examiner opined the Veteran’s acquired psychiatric disorder was severe enough to interfere with his ability to maintain employment. Moreover, the January 2015 private examiner opined the Veteran’s psychiatric symptoms had precluded him from acquiring and maintaining a gainful employment since 2009. The January 2015 examiner noted that the Veteran’s impulse-control and emotional self-regulation were severely impaired, and as such he was unable to adapt to normal circumstances outside of his home. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disability is sufficiently severe as to render him unable to maintain any form of substantially gainful employment consistent with his limited education and occupational background. Accordingly, granting of a TDIU is in order. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel