Citation Nr: 18158708 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 14-38 492 DATE: December 18, 2018 ORDER An initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted for the entire appeal period. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in most areas. 2. Throughout the appeal period, the Veteran has be\en unable to secure or follow a substantially gainful occupation due to his PTSD. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for PTSD are met from April 25, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a TDIU are met from April 25, 2011. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1970 to December 1971, including service in the Republic of Vietnam for which he was awarded the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran withdrew his Board hearing request. See October 2018 Statement. 1. Entitlement to an initial 70 percent rating for PTSD is granted. Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual’s capacity for adjustment during periods of remission must be considered. In addition, the evaluation must be 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). The Veteran’s PTSD is rated pursuant to DC 9411. 38 C.F.R. § 4.130; DC 9411. Under DC 9411, a 70 percent rating is warranted where the disorder is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the evidence shows 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. Id. The Veteran is currently in receipt of a 50 percent rating from the effective date of service connection, or April 25, 2011, for his service-connected PTSD. To the extent the Veteran has also been diagnosed with alcohol use disorder with physiological dependence, cannabis dependence (see January 2012 VA examination) and depressive disorder not otherwise specified (see January 2011 VA treatment record), the record does not adequately distinguish symptomatology of these disabilities from his PTSD; thus, all psychiatric symptomatology will be considered in rating his disability. The Court of Appeals for Veterans Claims has recently held that “...the language of the regulation 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 with deficiencies in most areas.” See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Given the frequent notation of suicidal ideation throughout the appeal period, along with evidence of grossly inappropriate behavior, impaired impulse control, obsessive thoughts, inability to establish and maintain effective relationships, near-continuous panic and depression affecting his ability to function independently, and isolative behavior, his PTSD has resulted in occupational and social impairment with deficiencies in most areas (judgment, thinking, and mood) supporting a 70 percent rating from April 25, 2011. See December 2010, January 2011, February 2011, April 2011, December 2011, and August 2012 VA treatment records; January 2012 VA examination report; April 2016 report of E.D., Psy.D. The Board finds that the preponderance of the evidence is against a finding a higher rating of 100 percent at any point during the appeal period. The evidence of record does not show total social impairment. Gross impairment in thought processes or communication has not been shown. There is no evidence of memory loss for names of close relatives, own occupation, or own name, disorientation to time or place, delusions or hallucinations, or an intermittent inability to perform activities of daily living, or other symptoms of similar frequency, severity and duration. While the January 2012 VA examiner noted grossly inappropriate behavior, no other examiner or clinician has indicated such impairment over the course of the lengthy appeal period. In addition, while the Veteran has frequently reported suicidal ideation, a persistent danger of hurting self or others has also not been shown, as he continuously indicated that he would not act on these thoughts. Accordingly, a 100 percent rating is not warranted for the Veteran’s PTSD. 2. Entitlement to a TDIU is granted. Entitlement to a TDIU has been raised by the record and is a component of the instant appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that TDIU is an element of all appeals of an increased rating and must be addressed if the possibility of the Veteran’s unemployability is raised by the record); October 2015 Statement in Support of Claim. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). The instant decision awards the Veteran a 70 percent rating for PTSD from April 25, 2011, the date of service connection. Accordingly, since April 25, 2011, he has met the minimum percentage requirements for a TDIU. 38 C.F.R. § 4.16(a). There is no regulatory definition of “substantially gainful employment,” but 38 C.F.R. § 4.16(a) states: “Marginal employment shall not be considered gainful employment.” It also states that marginal employment exists when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. However, “[m]arginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.” Id (Emphasis added). In October 2015, the Veteran reported that he owned a roofing company with his son that used to have nine employees, but since around 2010 has just consisted of the two of them. He stated that he could not tolerate being around others, and he only assisted his son if he was unable to do the work needed on his own. See October 2015 Statement in Support of Claim. At the time of his evaluation by Dr. E.L. in April 2016, he reported that he was working about 10 hours per week, only with customers with whom he was already familiar. He is currently unemployed. See November 2018 Veteran’s Memorandum of Law. Dr. E.L. noted that due to the severity of the Veteran’s symptoms, he was unable to maintain substantially gainful employment without the accommodations that a sheltered environment would allow. Given these findings, the overall severity of the Veteran’s psychiatric symptoms, and the fact that he is currently unemployed and was previously engaged in marginal (family business) employment for many years, the Board concludes that the Veteran is unable to secure and follow a substantially gainful occupation due to PTSD. Hence, a TDIU is warranted for the entire appeal period. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.Rouse, Associate Counsel