Citation Nr: 18157918 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-47 230 DATE: December 13, 2018 ORDER The claim of entitlement to an evaluation in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) (claimed as insomnia, anxiety, nervousness, depression, paranoia, disoriented, feelings of inadequacy) is denied. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD is granted. FINDINGS OF FACT 1. Throughout the appeal period the Veteran’s PTSD most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: depression and anxiety affecting the ability to function independently, appropriately and effectively; panic attacks impaired impulse control; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); impaired memory; and inability to establish effective relationships. 2. The Veteran’s service-connected disability precluded him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for a claim of entitlement to TDIU have been met. 38 U.S.C. §§ 1114, 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from July 1969 to March 1971. The Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal during his military service. The Veteran died in April 2014; the Certificate of Death reflects that the cause of death was metastatic lung cancer. The appellant is the surviving spouse and was appropriately recognized as the lawful substitute for this claim in accordance with the provisions of 38 C.F.R. §§ 3.103(b)(1), 3.1010 (2018). See June 2017 Correspondence from the VA. This matter is before the Board of Veteran’s Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD) The appellant contends that the Veteran was entitled to an increased rating for his PTSD in excess of 70 percent. The appellant further contends that the Veteran’s PTSD had worsened and he was entitled to a rating of 100 percent due to his inability to perform normal every day functions, memory issues, nightmares, delusions and other wide-ranging symptoms. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation and does not require specialized educations, training, or experience. See Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159 (2018). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2018). The Veteran was already rated as 70 percent disabling for PTSD. The next highest disability rating is 100 percent, which requires: 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. 38 C.F.R. § 4.130, DC 9411 (2018). The Veteran was initially service-connected for PTSD, rated as 70 percent disabling, effective as of October 2011. To show a disability rating of 100 percent, the Veteran must show that he suffers from total occupational and social impairment due to symptoms of such severity as grossly in appropriate behavior, persistent danger of hurting himself or others, unable to perform even basic activities of daily life, and unaware of who and where he is. The Board notes that this is not an exhaustive list and are only examples of symptoms that would justify a particular rating for a mental disorder under 38 C.F.R § 4.130, DC 9411. The May 2013 VA examination found that the Veteran exhibited occupational and social impairment with deficiencies in most areas. In that same VA examination, it was noted that the Veteran came into the office and was raising his voice by “hollering at the lady out there,” yelling about becoming lost, and the mistreatment of veterans. It took him 10 to 15 minutes to calm down. The Veteran stated that it took him all day to get mentally ready to speak with the VA examiner even reporting that he drank two beers just to attend the VA examination. The VA examiner found that the Veteran was using alcohol to cope, had been arrested for two driving while intoxicated offenses, and was quoted as saying that “I never could find any satisfaction to match that killer high you get with the danger. You can’t match that.” The VA examiner noted other comments made by the Veteran such as, “I don’t work well with others…. But I could never complete a job. I was always close, but I never finished. I haven’t worked in 10 years.” Additionally, the Veteran indicated that he loved his wife, “But I wander. She knows about it.” He stated that he has had girlfriends, but won’t leave his wife. The Veteran also stated that it was “my way or the highway” and that he has “beat guys up for beating on women”. The VA examination indicated that the Veteran reported he had panic attacks when things did not work out his way, that he got turned around with directions, and it upset him enough to trigger him. The Veteran stated to the VA examiner that “I don’t drive. I stay home. I don’t get out. I used to be real social. I have no friends. Everything I do triggers it.” In medical records from July 2010, the Veteran indicated a severe startle response where he asked his wife and daughter to clap their hands or make noise when they came into their home so he was not surprised. He indicated a fear of striking out at someone. The Veteran’s assertions are confirmed in the lay statements of the daughter in May 2013 and the May 2013 lay statements of the appellant. In January 2014, the Veteran, during a phone call with a nurse, was noted as hostile, angry, and verbally abusive because his medications were not renewed immediately. The medical records also noted that the Veteran had walked into a medical facility on January 16, 2014, to renew his medication and made obscene gestures to the clerical staff when he left without his medication. The regular use of cannabis was also indicated throughout his medical records from VA. In reviewing the lay statements of the appellant, she indicated other symptoms of the Veteran’s PTSD. In the appellant’s October 2014 Statement in Support of Claim she indicated that the Veteran was unable to perform daily living activities beginning in early 2013 such as cooking, going grocery shopping, and proper hygiene. She stated the Veteran would try several jobs but was unsuccessful due to impairments in his thought process and communication. He would then invent delusional reasons for his inability to complete his work and then exhibit inappropriate behavior to justify his failures. The appellant reiterated her statements of the Veteran’s PTSD in a substantive appeal (VA Form 9) submitted August 2016 about his delusional thought processes, his inability to function in normal daily activities starting in 2012 and 2013, disorientation of his own personality, disorientation to time, and forgetting his only sister’s name. The Board finds the lay statements of the appellant and the Veteran’s daughter to be both competent and credible in describing lay observable symptoms of the Veteran’s PTSD. With the ability to interact with the Veteran regularly they were both able to see the Veteran in his daily activities and witness the symptoms that they described. Their statements hold probative weight with the Board. However, the lay statements of the Veteran, appellant, and daughter are not competent to determine the Veteran’s degree of occupational and social impairment as they do not have specialized education, training, or experience. 38 C.F.R. § 3.159. The VA examiner’s opinion of May 2013 is found to be competent, credible and with significant probative weight. The VA examiner in focusing on the severity of the occupational and social impairment of the Veteran found that the Veteran did not exhibit a total impairment in both categories, which is required to meet the 100 percent disability rating. 38 C.F.R. § 4.130. The VA examiner found the Veteran’s symptoms more closely resembled the 70 percent rating criteria by presenting with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. In reviewing the records of the Veteran, the deficiencies of most social and occupational areas were exhibited by the Veteran such as: not going outside of the home regularly, his use of alcohol, his exaggerated startle response, his neglect of personal appearance and hygiene. The Veteran also had difficulty in adapting to stressful circumstances as noted in the May 2013 VA examination, his lack of social friends, near continuous panic or depression affecting his ability to function independently by not being able to go to the grocery store, impairment of his memory, and disturbances in his mood as shown by his agitation at and in attending the May 2013 VA examination. However, these symptoms more closely resemble a disability picture of 70 percent as the Veteran was found not to have suicidal ideations, hallucinations, he knew his own name, and was spatially oriented as found in the May 2013 VA examination. The Veteran was also able to maintain a more than 30-year marriage with the appellant and had a continuing relationship with his daughter. These lack of symptoms, although not an exhaustive list, and continuously maintained relationships indicate that there was not a total social and occupational impairment of the Veteran. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. The evidence before the Board here indicates that the Veteran’s claims must be denied as the preponderance of the evidence is against the Veteran’s claims, and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In balancing the VA examiner’s opinion and the lay statements of the Veteran’s family the Veteran before his passing was exhibiting symptoms of PTSD which more closely resembled the 70 percent disability rating. 38 U.S.C. § 5107; 38 C.F.R. § 4.130. Based on the foregoing, the Board finds an evaluation in excess of 70 percent rating throughout the duration of the appeal period for the Veteran’s PTSD is not warranted. Entitlement to a TDIU The appellant does not contend that the Veteran is entitled to an evaluation of TDIU; however, the claim is reasonably raised by the record. See Rice v Shinseki, 11 Vet. App. 447 (2009); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran was already service connected for PTSD at 70 percent disabling, effective as of March 2011. With the Veteran's PTSD rating of 70 percent, he met the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). TDIU was not previously addressed in 2011; however, the Board may infer the issue of TDIU when it is reasonably raised by the record. See Rice v Shinseki, 11 Vet. App. 447 (2009); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). Accordingly, the remaining issue is whether the Veteran’s service-connected PTSD precluded the Veteran from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(b). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board notes that the Veteran’s last employment was through self-employment and over 10 years before he died in 2014. The Veteran had previous training as a barber and truck driver. His employment as a barber required regular social interaction and employment as a truck driver required driving large vehicles. The Veteran had difficulty with social interactions and regularly avoided leaving his home, he also had regular flashbacks while driving and being around semi-trailer trucks. The Veteran dropped out of high school but did earn his General Education Diploma (GED) while in Army service. The issues of employment and employability are addressed in the VA examination of May 2013, the medical records submitted in June 2013, in the appellant’s October 2014 Statement of Support of Claim, and throughout the records of the Veteran. There are consistent statements made throughout the Veteran’s medical records on his inability to secure and maintain employment such as in May 2013, indicating that he was unemployed for the last 10 years due to his disability. The Veteran makes clear statements that he could never finish a job in the May 2013 VA examination. The VA examiner also indicated occupational and social impairment with deficiencies in most areas, including his use of alcohol to cope with his PTSD. The appellant also indicates in every statement she has presented in the file that the Veteran was unable to maintain focus enough to find and keep employment, and that she was the sole provider. Although it is conceivable that there may be some occupations that the Veteran could have performed with accommodations, the totality of the evidence supports a finding that his service-connected PTSD rendered him unable to obtain and maintain substantially gainful occupation when his educational and work background are taken into consideration. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s PTSD rendered him unemployable. The May 2013 VA examiner did not conclude that the Veteran’s PTSD resulted in total occupational impairment; however, this does not preclude a finding that PTSD substantially affects employment. The evidence of record shows that the Veteran’s PTSD symptoms had a significant effect on his ability to work. Given the impairment produced by his PTSD, it appears that the Veteran would not have been capable of more than marginal employment in any type of work setting. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). Thus, the Board will resolve reasonable doubt in the Veteran’s favor and find that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. 38 U.S.C. § 5107, 38 C.F.R. § 4.16. Therefore, entitlement to a TDIU is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.A. Teich, Associate Counsel