Citation Nr: 18156302 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 12-33 929A DATE: December 7, 2018 ORDER An initial rating of 70 percent for posttraumatic disorder, outside periods of temporary 100 percent ratings, from June 14, 2007, to October 5, 2017, is granted. Beginning January 1, 2008, a total disability rating based on individual unemployability is granted. FINDINGS OF FACT 1. From June 14, 2007, to October 5, 2017, the Veteran’s posttraumatic disorder (PTSD) was shown to have caused occupational and social impairment with deficiencies in most areas; however, during the period on appeal, complete occupational and social impairment has not been shown. 2. Beginning January 1, 2008, the evidence of record makes it at least as likely as not that the Veteran’s service connected PTSD is of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From June 14, 2007, to October 5, 2017, the criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. Beginning January 1, 2008, the criteria for a total disability rating based on individual unemployability (TDIU) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from August 1991 to October 1993. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2017. A transcript of that hearing is of record. Increased Ratings 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. 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. The Veteran filed a service connection claim for PTSD on June 14, 2017. An August 2010 rating decision granted a service connection and assigned an initial rating of 10 percent effective June 14, 2007. A December 2012 rating decision granted an increased rating of 30 percent effective June 14, 2007, and granted temporary 100 percent ratings for hospitalizations from October 22, 2007, to January 1, 2008, and February 16, 2010, to May 1, 2010. A September 2018 rating decision granted an increased rating of 70 percent effective October 5, 2016. He disagrees with the assigned ratings and asserts he is entitled to higher ratings outside the periods of the temporary 100 percent ratings. Under the General Rating Formula for Mental Disorders, a 30 percent evaluation is assigned when a veteran’s mental disability causes 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is assigned when a veteran’s mental disability causes 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is assigned when a veteran’s mental disability causes 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran’s mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living; disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must 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. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez Claudio v. Shinseki, 713 F.3d 112, 116 17 (Fed. Cir. 2013). The Veteran was found disabled by the Social Security Administration (SSA) due to his PTSD and was awarded Social Security Disability Benefits (SSDB) effective February 16, 2004. The Veteran’s medical records show that in June 2007, he reported having panic attacks in crowded places or after hearing loud noises. In July 2007, he reported having suicidal ideation. On examination, he was forgetful, had impaired concentration, was distractible, and had paranoia. In July 2007, the Veteran’s VA psychiatrist Dr. G. K. reported that the Veteran experienced severe PTSD and had very little emotional reserve to deal with his day to day to life. His Dr. G. K. reported that the Veteran was incapable of gainful employment due to an inability to deal with worklike settings, human contact, an inability to learn new work skills, and inability to use already acquired job skills. The Veteran was hospitalized for his PTSD from October 22, 2007, to December 27, 2007. After his discharge, he continued to report having panic attacks. In January 2010, he reported having suicidal ideation and limited relationships outside his family. He again was hospitalized for his PTSD from February 16, 2010, to April 9, 2010. In June 2010, the Veteran was afforded a VA examination. The examiner noted that the Veteran’s mood was highly anxious, he had a history of suicidal ideation, and he had disturbed sleep that resulted in occasional fatigue during the day. In January 2012, the Veteran’s psychiatrist Dr. Steven Snyderman and psychologist Dr. Thomas Cromer reported that the Veteran began treatment in 2008. The doctors reported that the Veteran had difficulty adapting to stressful circumstances, disturbance of motion and mood, neglect of personal appearance and hygiene, difficulty in establishing and maintaining effective work and social relationships, decrease in work efficiency, and intermittent periods of inability to perform occupational tasks. In April 2016, the Veteran’s psychiatrist Dr. Frank Dowling reported that the Veteran began treatment in June 2015. Dr. Dowling reported that the Veteran’s PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas. In addition, Dr. Dowling indicated that the Veteran had poor to no ability to deal with the public, deal with work stress, maintain attention and concentration, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability. At the April 2017 Board hearing, the Veteran testified that his symptoms included sleep difficulty, motivation, fearfulness, and avoidance. He testified that he was fearful going outside his home. He testified that if he left his home, he had panic attacks about half the time. He testified that he experienced a lack of sleep about three to four times per week. In October 2017, the Veteran was afforded a VA examination. He reported having problems sleeping resulting in low energy and reduced motivation. He reported having difficulty being out in the open and in crowds. The examiner indicated that the Veteran’s PTSD symptoms were depressed mood, anxiety, chronic sleep impairment, disturbance of motion and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. The examiner indicated that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. From June 14, 2007, to October 5, 2017, the Veteran’s treatment records show that was hospitalized for his PTSD two times since being granted service connection. His treatment records show that his PTSD symptoms included having panic attacks, suicidal ideation, paranoia, difficulty with memory and concentration, and limited relationships outside of his family. Dr. G. K reported that the Veteran was incapable of gainful employment. Drs. Snyderman and Cromer reported that the Veteran had difficulty adapting to stressful circumstances, disturbance of motion and mood, neglect of personal appearance and hygiene, difficulty in establishing and maintaining effective work and social relationships, decrease in work efficiency, and intermittent periods of inability to perform occupational tasks. Dr. Dowling reported that the Veteran’s PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas. The Veteran’s treatment records and the findings of his treating providers are consistent with the October 2017 VA examiner that indicated that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. As such, the Veteran’s medical records show that he has consistently had PTSD symptoms consistent with a 70 percent rating since his application date. However, as the Veteran has remained married and maintains relationships with other family members, total social impairment has not been shown during the period on appeal, which would be consistent with a 100 percent rating. Accordingly, from June 14, 2007, to October 5, 2017, the Veteran is granted an initial 70 percent rating for his PTSD. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more 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 disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. In this case, a September 2017 rating decision granted a TDIU effective October 5, 2017. However, the Veteran now meets the schedular criteria for a TDIU as of June 14, 2007, as his PTSD is initially rated at 70 percent. In November 2012, the Veteran asserted he was entitled to a TDIU as he was unable to work due to his PTSD. SSA records show that he was granted SSDB for his PTSD effective February 16, 2004. On his claim form (VA Form 21-8940), he indicated that his PTSD prevented him from working. He indicated that he last worked fulltime in December 2007, although hs SSA earnings record show he last earned income in 2005. Dr. G. K. reported that the Veteran was incapable of gainful employment due to an inability to deal with worklike settings, human contact, an inability to learn new work skills, and inability to use already acquired job skills. Drs. Snyderman and Cromer reported that the Veteran had difficulty in establishing and maintaining effective work and social relationships, decrease in work efficiency, and intermittent periods of inability to perform occupational tasks. Dr. Dowling reported that the Veteran was medically unable to work in any occupation. Finally, the October 2017 VA examiner reported that the Veteran would be unreliable, ineffective, inefficient, and uncooperative due to his PTSD. Accordingly, the Veteran has not able to obtain and sustain substantial gainful employment since January 1, 2008, as the Veteran reported he last worked in December 2007. As such, the Board concludes that the evidence for and against TDIU is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran’s behalf, and hold that TDIU is warranted beginning January 1, 2008. As such, the Veteran’s claim is granted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel