Citation Nr: 18157661 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 13-04 792 DATE: December 13, 2018 ORDER Entitlement to an initial rating of 70 percent, and no higher, for post-traumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The evidence shows that the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas, including work, family, judgment, thinking, and mood; total occupational and social impairment is not shown. 2. The evidence shows that the Veteran’s PTSD is of sufficient severity to render him unable to maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 70 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.159, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1970 to October 1973, including service in the Republic of Vietnam. Entitlement to a disability rating in excess of 50 percent for PTSD The Veteran is currently service-connected for PTSD, which is rated as 50 percent disabling. He seeks a higher disability rating and a TDIU rating. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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; difficulty in establishing and maintaining effective work and social relationships, is assigned a 50 percent rating. 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 worklike setting); inability to establish and maintain effective relationships, is assigned a 70 percent rating. 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; memory loss for names of close relatives, own occupation, or own name, is assigned a 100 percent rating. 38 C.F.R. § 4.130. A January 2011 email from the Veteran’s former supervisor discussed his behavior on the job. The Veteran was a valued employee but frequently would become angry for no reason and take a long time to calm down. His co-workers became accustomed to his temper tantrums, but they grew more frequent over time. He was not officially asked to retire, but eventually event the Veteran understood that he was a source of constant disruption in the workplace. At the July 2011 VA examination, the Veteran reported that he had been feeling depressed most of the time, had lost interest in things, felt bad about himself, had trouble concentrating, suicidal thoughts, trouble sleeping, and a lack of appetite. He was worried about his PTSD symptoms and whether he would be able to overcome them and their impact on his life. He sometimes heard unfamiliar sounds in the house, but otherwise denied symptoms of psychosis. The examiner described the Veteran’s disability picture as one of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The symptoms listed included depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran stated that he had retired in 2005 and had not worked since 2010, when he left his job as a contractor in Afghanistan early and had to pay a penalty for doing so. He reported that he had difficulties with anger in his work environments and that he had taken the contractor position because he was feeling somewhat suicidal, not caring whether he lived or died. At the April 2012 VA examination, the Veteran reported that he had difficulty with his social relationships, having ended two romantic relationships over the past 3 months. On the morning of the examination he had packed his things and left his girlfriend’s home after a dispute, stating that he wanted to leave before he did something he would regret. He was discouraged about his difficulties in finding someone to share his life with. He had two grown daughters and six grandchildren that he was close to, but stated he had difficulty expressing his emotions. He stated that he had several close friends whom he enjoyed being around. He had not worked since his contractor job, but was hoping to find a part-time job that would require minimal interaction with other people. The examiner described his disability picture as one of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In his Notice of Disagreement received in June 2012, the Veteran stated that he was having trouble sleeping, panic attacks, and mood changes that were damaging to his relationships. He was unable to maintain social relationships, had hard time remembering things and learning new tasks, and had a very quick temper that was provoked by very minor incidents. A statement from the Veteran’s mental health provider in December 2012 noted that he had been attending group therapy and taking medication for his symptoms since June 2009. The provider noted that the Veteran had a difficult time with intimate relationships. He continued to have intrusive thoughts of Vietnam, difficulty sleeping nightmares, irritability, and depressed mood. He had difficulty interacting with people, used alcohol on and off, and was hoping to find a part time job that allowed him to work independently. A March 2013 VA examination and opinion described the Veteran’s disability picture as one of occupational and social impairment with reduced reliability and productivity The Veteran reported social impairment in the form of difficulty with intimacy, intermittent irritability, and verbal aggression in his relationships. He did maintain relationships with several friends with whom he went bowling, golfing, and fishing. He had two children and several grandchildren and said that his daughters did not completely trust them with their children because of his tendency to erupt. Occupational impairment factors included a history of verbal irritability with coworkers; he said he thought he would have been fired if not in a protected veteran status. His symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In a statement submitted in November 2013, the Veteran asserted that he was unable to work because of his PTSD and the resulting short fuse. He stated, “I am not going to jail because I hurt somebody on the job.” He pointed to the statement from his former boss about how often he would lose his temper, and stated that he did not know why he had never been fired. A statement submitted by the Veteran’s daughter in December 2013 addressed the Veteran’s behavior as a result of his PTSD. She noted that he had a tendency to get very upset over meaningless things and would yell at his grandchildren for no reason. He had always had a temper and a tendency to overreact, sometimes becoming physical in his anger. She remembered that her mother had been afraid of her father before they divorced because of his intense and senseless anger. She felt that this behavior would stand in the way of his being able to hold a job. At the March 2014 VA examination, the Veteran stated he had given up on relationships and was struggling with PTSD and anger. He had difficulty being around other people and was worried about losing his temper. He had a good relationship with his daughters and some friends that he socialized with, doing such things as fishing and golfing; he also enjoyed camping alone. He was retired and had been looking for part-time work but had not had any luck with his search, which he believed was due to his self-report of ongoing psychiatric treatment. He noted that prior to his retirement he had often had anger outbursts at the workplace and had used most of his sick leave. He reported that he drank one to three times a week, drinking from six to nine beers at a time. He had tried to quit, but could not, despite previous attempts at Alcoholics Anonymous. The Veteran was able to attend to all activities of daily living. He reported having feelings of depression, defensiveness, and anger, as well as passive suicidal thoughts and situational panic. He did not have any compulsive behaviors, but did report bathing at least twice a day and never feeling clean. The examiner described the Veteran’s disability picture as one of occupational and social impairment with reduced reliability and productivity. The Veteran also reported a loss of concentration, disturbances of motivation and mood, chronic sleep disturbance, depressed mood with apathy, anger, difficulty maintaining intimate relationships, and increased social withdrawal with maintenance of a few close friendships. At the August 2015 Board hearing, the Veteran testified that prior to his retirement, he had been having angry outbursts at work. On many occasions he would become angry and just leave work for the day, which resulted in him using most of his leave. He had a decent relationship with his daughters, but they were used to his irritability and changing moods. He had given up on seeking a romantic relationship and reported avoiding most people most of the time, including doing any grocery shopping very early in the morning. He experienced difficulty sleeping, problems concentrating, and trouble remembering things. At a VA examination in February 2016, the Veteran reported that he was drinking more heavily after a nightmare or when he had increased distress, up to a 12-pack in one evening. He had given up on trying to find a romantic relationship because of his issues with anger, irritability, and anxiety around other people. He had a positive relationship with his daughter and grandchildren, although he did tend to become easily irritated with them. He liked to go golfing with friends and fishing by himself. He had nightmares frequently and used alcohol to avoid the anxiety and distress associated with them. He reported avoiding groups of people because they made him feel edgy, vulnerable, and exposed. He had difficulty experiencing positive emotions and was persistently angry and depressed. He had difficulty handling his anger appropriately and reported verbal aggression towards his daughters, grandchildren, and at least one mental health professional. He had difficulty sleeping, was always on guard, and was unable to relax. The examiner did not feel that the Veteran’s disability picture indicated that he would be unable to work, although he might have difficulty getting along with coworkers. The examiner did not see any evidence of difficulties with concentration or attention or completing tasks in a timely manner. In a statement submitted in August 2016 the Veteran stated that he lived in constant fear and mistrust of the people around him. He was worried that he would not be able to “keep it together” much longer and thought he might hurt someone or even himself. He had stopped helping his daughters with his grandchildren because he was afraid of “blowing up” and hurting them. After considering all the evidence of record, with specific attention to the documents discussed above, the Board finds that the Veteran’s disability picture relative to his PTSD is best characterized as one of occupational and social impairment with deficiencies in most areas, including work, family, judgment, thinking, and mood. Specifically, the Board notes the Veteran’s long history of angry outbursts towards others, his near-continuous depression, his suicidal ideation, difficulty in adapting to stressful circumstances, and inability to establish new effective relationships. All of these, in addition to his difficulty concentrating and remembering new information and difficulty sleeping, support assignment of a 70 percent disability rating. Entitlement to a 100 percent disability rating is not shown because the Veteran is shown to generally have a good relationship with his family, has several friends, and is able to attend to all the activities of daily living without a need for support. He is not shown to have extreme memory loss, to exhibit bizarre and inappropriate behavior, or to pose a persistent danger to himself or others. 38 C.F.R. § 4.130. Entitlement to TDIU A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. The assignment of a 70 percent disability rating for PTSD satisfies the schedular requirement for entitlement to TDIU. The only question before the Board is whether the Veteran’s disability picture relative to his PTSD is sufficient to render him unable to obtain and maintain substantially gainful employment. After considering all of the evidence of record discussed above, the Board finds that the criteria for TDIU have been met. The Veteran’s work history includes frequent angry outbursts that his former boss reported were a source of constant disruption and may well have resulted in his termination or forced retirement. He also has a history of angry outbursts at his family and a mental health provider and an inability to maintain new relationships without conflict. The friends that he does socialize with are also veterans who are understanding of his difficulty. In light of his difficulty with authority, his angry outbursts, and his heavy use of alcohol, the evidence supports a conclusion that the Veteran’s ability to maintain employment is limited at best. Therefore, the Board finds that entitlement to TDIU is warranted. 38 C.F.R. § 4.16. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel