Citation Nr: 18159639 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-04 408 DATE: December 20, 2018 ORDER Prior to November 18, 2016, a disability rating of 70 percent, but not higher, for the service-connected posttraumatic stress disorder (PTSD), is granted. Since November 18, 2016, a disability rating higher than 70 percent for the service-connected PTSD is denied. A total disability rating based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. During the entire period on appeal, the service-connected PTSD has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; however, total occupational and social impairment is not demonstrated at any time. 2. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation; the schedular TDIU criteria are met. CONCLUSIONS OF LAW 1. Prior to November 18, 2016, the criteria for a disability rating of 70 percent for PTSD have been met; the criteria for a rating higher than 70 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9411 (2017). 2. Since November 18, 2016, the criteria for a disability rating higher than 70 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 3, 1966 to August 23, 1968. A rating higher than 30 percent for posttraumatic stress disorder (PTSD), for the period prior to November 18, 2016, and higher than 70 percent thereafter Service connection was granted for PTSD in February 2011. An initial disability rating of 0 percent was assigned under Diagnostic Code 9411, effective August 9, 2010. The disability rating was increased to 30 percent in a September 2012 rating decision. The current appeal arises from an increased rating claim that was received at VA on February 3, 2016. In a November 2016 rating decision, VA granted an increased rating of 70 percent, effective November 18, 2016, corresponding to the date of a VA examination. Thus, pertinent to the period on appeal, from the date of claim, February 3, 2016, to November 18, 2016, a 30 percent rating is assigned. Since November 18, 2016, a 70 percent rating is assigned. A 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 A 50 percent evaluation contemplates symptoms of 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. Id. A 70 percent evaluation requires 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, intermittently illogical, obscure, or irrelevant speech, 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), and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an 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. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In March 2016, the Veteran was afforded a VA examination. The examiner noted multiple symptoms including anxiety, panic attacks, hypervigilance, avoidance, and sleep disturbance. The examiner also stated that the Veteran’s occupational and social relationships were good and indicated that the Veteran could maintain friendships. The Veteran denied hallucinations and homicidal or suicidal ideation. In a March 2016 medical opinion, the examiner noted the Veteran’s panic attacks are mild. The examiner stated the Veteran’s social impairment as mild and noted his self-esteem to be good. The examiner characterized the Veteran’s overall PTSD as mild. In April 2016, the Veteran submitted a Notice of Disagreement (NOD). The Veteran stated that his March 2016 VA examiner was rude and made him uncomfortable during the examination. The Veteran also stated that he reported weekly panic attacks, anxiety, impairment of short and long-term memory, depression, and sleep impairment. The Veteran stated that his condition had worsened and he had recently begun PTSD treatment. In April 2016, the Veteran was seen with complaints of anhedonia, feelings of haplessness and hopelessness, low energy, and difficulty sleeping. In June 2016, the Veteran was seen for mental health treatment with complaints of sleep disturbance and irritability. In November 2016, the Veteran was afforded a VA examination. The examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran noted no current depression, however the examiner noted “depressed mood” in a separate portion of the examination report. The Veteran stated that he enjoys fishing, taking his wife out for dinner and doing church work. The Veteran also stated that he stays active and walks two to three miles a few times per week. The examiner noted that the Veteran has a 48-year marriage that is “going well.” The Veteran also denied suicidal attempts or suicidal ideation. Other reported symptoms included avoidance, hypervigilance, anxiety, mild memory loss, sleep impairment, obsessional rituals which interfere with routine activities and severe weekly panic attacks that occasionally caused him to go to the emergency department. The examiner reported that the Veteran’s PTSD was of a moderate severity level. In the Veteran’s January 2017 VA-Form 9, he indicated that his March 2016 VA examination failed to accurately document his subjective complaints which include anxiety, panic attacks, and depressed mood. The Veteran reported that his current 70 percent rating should be granted to back to the date of claim, specifying February 3, 2016, or at the very least, the date of the March 23, 2016 examination. In a January 2017 treatment note, the Veteran reported sleeping slightly better and a reduction in the occurrence of nightmares. The Veteran also received a negative depression screening in February 2017. During the period on appeal, the Veteran’s PTSD has been characterized by depression, anxiety, panic attacks, hypervigilance, avoidance, sleep disturbance, obsessional rituals, mild memory loss, anxiety, significant occupational impairment, and feelings of hopelessness. As the U.S. Court of Appeals for the Federal Circuit explained, evaluation under § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed in DC 9411 are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). After a review of all of the evidence, the Board notes that there is a clear discrepancy between the Veteran’s description of his symptoms and what has been noted during mental health evaluations, in particular, VA examinations. The AOJ has determined that a 70 percent rating is substantiated based on the results of the November 2016 VA examination. In some cases, the date of a VA examination may be significant in determining the earliest date as of which an increase in a service-connected disability occurred. This may be true if there is no other evidence reflecting the severity of the disability prior to the examination. However, in this case, there is evidence reflecting the Veteran’s symptomatology and functional impairment prior to the date of the examination. This comes in the form of his competent and credible description of his symptomatology and functional impairment. The Board finds that it is unlikely for his mental/psychological functioning to have suddenly worsened on November 18, 2016. The Board finds that it is more reasonable to interpret any ambiguity as to the level of functional impairment prior to November 18, 2016, in favor of the Veteran’s claim. In light of these findings, and with resolution of all reasonable doubt in favor of the claim, the Board concludes that, for the entire period on appeal prior to November 18, 2016, the criteria for a disability rating of 70 percent were more nearly approximated than were the criteria for a disability rating of 30 percent. However, the Board also finds that a preponderance of the evidence is against finding that the Veteran’s PTSD caused the severity of symptoms required to warrant a 100 percent disability rating. The Veteran has consistently been noted as fully oriented and with normal communication ability. The gross impairments of behavior resulting in severe disorientation of the individual which are contemplated by the 100 percent rating criteria are simply not evident in this case at any time. Moreover, the Veteran has made no assertion as to entitlement to a rating of 100 percent. Accordingly, the Board concludes that a disability rating of 100 percent for PTSD is not warranted. Total disability rating based on individual unemployability due to service connected disabilities The issue of TDIU entitlement was not adjudicated by the RO but is a component of the increased rating claim in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the combined disability rating for the entire period is 90 percent due to multiple service-connected disabilities. Accordingly, the schedular TDIU criteria have been met. The Veteran has not submitted a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). However, this is not necessary for the Board to adjudicate the claim, as there is other evidence of his employment history. The November 2016 VA examination notes that the Veteran was retired and last worked in 2007. He worked for a state transportation department and was with them for 40 years. The Veteran plowed snow and did maintenance work. He reported that he liked the job until the last 5 years. He stated: “It just got to be hard on me.” “I got nervous working in the traffic.” He also reported that he had interpersonal issues with others. He stated: “I had to get out of there.” He reported having memory and concentration issues on the job. It was found that he would have difficulty in adapting to stressful circumstances, including work or a worklike setting. In addition to PTSD, service connection is also in effect for coronary artery disease, and multiple musculoskeletal/neurological disabilities, including the thoracolumbar spine and both lower extremities. A November 2016 VA examination noted that, due to his radiculopathy, the Veteran would be limited to sedentary work. After a review of all of the evidence, the Board finds that the criteria for TDIU have been met. The Veteran’s work history is not compatible with sedentary work, but involved physical work. Moreover, it is apparent that he quit working due to the combined effect of his mental and physical disabilities. The question of whether an individual is unable to secure or follow a substantially gainful occupation must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991); Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). In light of the Veteran’s substantial occupational impairment due to multiple service-connected disabilities, and his limited job experience involving activities which are incompatible with his physical and mental disabilities, the Board finds that the criteria for TDIU have been met. As this represents the complete benefit sought on appeal, the Board finds that there is no prejudice resulting from any deficiencies in the duties to notify and assist, or in the Board’s consideration of this matter in the first instance. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Wozniak, Joshua