Citation Nr: 1807833 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-03 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability. 3. Entitlement to an earlier effective date for temporary total evaluation due to hospitalization over 21 days. REPRESENTATION Veteran represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active military service from June 1968 to June 1970, to include service in the Republic of Vietnam. The Veteran's decorations for his active service include the Bronze Star and the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and St. Petersburg, Florida. In a December 2017 pre-hearing conference, the Veteran's representative agreed to withdraw the request for a hearing on the issues before the Board if the undersigned found a basis to grant these issues based on a review of the record, which has been found. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas due to symptoms such as near continuous anxiety and depression, impaired impulse control, difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships. 2. Veteran's service-connected disabilities meet the schedular requirement for assignment of a TDIU and are reasonably shown to render him unable to secure and follow a substantially gainful occupation. 3. Prior to the promulgation of a decision in the appeal, the Veteran submitted a written statement in January 2018 withdrawing the appeal of the claim for entitlement to an earlier effective date for temporary total evaluation due to hospitalization over 21 days. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 70 percent for the Veteran's PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 3. The criteria for withdrawal of the claim for entitlement to an earlier effective date for temporary total evaluation due to hospitalization over 21 days have been met. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204(b)(c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for PTSD The Veteran contends that he should have a higher rating for PTSD because his level of impairment is worse than contemplated by the currently assigned rating. In a November 2010 statement, the Veteran provided a detailed report of his in-service PTSD traumas that included witnessing the severe injuries and deaths of service members under his command as platoon leader in the Republic of Vietnam, and numerous combat engagements with the enemy, to include snipers, booby traps, rocket/mortar/artillery attacks, ambushes, ground attacks, and fire fights. At a December 2014 VA examination, the Veteran reported good relationships with his immediate family, but that he continued to seek isolation from most social interaction outside of intermittent interaction with a former platoon mate from his Republic of Vietnam service. The examiner acknowledged prior lay statements submitted by the Veteran, a work colleague, his son, his brother, and his wife that described progressively worsening PTSD symptomatology that eventually forced him to shutter his business as a self-employed appliance installer in September 2010. Although the Veteran had undergone extensive psychiatric treatment, he continued to endorse chronic PTSD symptoms including recurrent recollections, distressing dreams, impaired sleep, psychological distress, physiological reactivity, avoidance behaviors, feelings of detachment, problems with concentration, and hypervigilance. The examiner noted the Veteran experienced severe depression symptoms directly associated with his PTSD, including social withdrawal, isolation, depressed mood, low energy, poor sleep, poor attention and concentration, denied suicidal ideations but endorsed passive death wishes, forgetfulness, change in appetite, guilt, and helplessness. Nevertheless, the examiner stated that, while the Veteran's medical records reflected overall improvements in his psychiatric symptoms, his level of clinical impairment appeared unchanged since his last VA examination in March 2011. As such, the examiner opined that the Veteran's level of impairment was characterized by occupational and social impairment with reduced reliability and productivity. Notably, the examiner stated that validity testing indicated over reporting of symptomatology, and therefore, the psychiatric evaluation should be interpreted with caution. At a June 2015 VA examination, the Veteran reported his social interactions had remained stable. He reported a chronic low mood, with periods of exacerbation during which he isolated more, felt more helpless, and cried more. Such periods were reported to happen regularly, lasting a few days to a few weeks, and were often triggered by anniversary dates of trauma and other trauma reminders associated with his PTSD. The examiner noted the Veteran's symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances in a work or work-like setting. Again, the examiner noted the Veteran's validity test results were suggestive of significant over endorsement of symptoms, and as such the psychiatric evaluation was deemed invalid and uninterpretable. The Veteran submitted an October 2017 private psychiatric evaluation by Dr. J.B. that was conducted following a thorough review of the claims file and administration of a range of diagnostic tests. The examiner opined that the Veteran had been totally impaired, socially and occupationally, since he last worked in 2010. The examiner administered the Detailed Assessment of Posttraumatic Stress (DAPS) and the Everstine Trauma Response Inventory (ETRI) tests and determined that the Veteran's chronic PTSD was severe and rendered him totally impaired. Dr. J.B.'s rationale referenced the diagnostic test results and the Veteran's own lay statements. The Veteran endorsed a general distrust of anyone he did not know. He reported that he was constantly on guard, made sure that the doors and windows of his home were all locked, and did frequent walk-arounds to make sure his perimeter was secure. He reported poor memory and periods of grossly inappropriate behavior in the form of violent outbursts of anger. The Veteran confessed to frequent suicidal thoughts, though no plans were ever made. He further reported experiencing sudden flashbacks, in the form of re-experiencing, involving intrusive memories and images that would onset suddenly and were often associated with certain sights, sounds, and other triggers. Dr. J.B. addressed the validity test results from the 2014 and 2015 VA examination reports that indicated the Veteran was over reporting symptoms. The examiner opined that such over reporting may not have been due to an attempt to appear more impaired than was accurate, but was more frequently indicative of a cry for help as he believed was the case with the Veteran. Dr. J.B. noted that a 2011 VA examiner noted no suggestion of over reporting, the 2014 examiner noted the evaluation should be interpreted with caution, and the 2015 examiner opined the results were invalid and uninterpretable. The examiner opined that the pattern of responses suggested an increasing level of distress and impairment and, therefore, represented an increasingly desperate cry for help. The Veteran also submitted a December 2017 private opinion by Dr. M.C. that considered all prior VA examination reports as well as the October 2017 diagnostic test results, medical opinion, and supporting rationale provided by Dr. J.B. The examiner opined that the Veteran's PTSD was characterized by total occupational and social impairment, and concurred with Dr. J.B that the validity statements regarding over reporting were likely suggestive of a cry for help and signified an increased level of distress and impairment rather than over reporting of symptoms or malingering. Although the Veteran appeared to have benefitted from extensive inpatient, outpatient, group, and medication therapy for his PTSD, he continued to experience severe symptoms that significantly affected his daily life. While the VA and private examiners differed with regard to their opinions on the Veteran's level of impairment, both the VA and private examiners found that the Veteran continued to experience deficiencies in many areas, to include near-continuous anxiety and depression, impaired impulse control with unprovoked irritability and periods of violence, difficulty in adapting to stressful circumstances in work or a work-like setting, and an inability to establish and maintain effective relationships outside of his immediate family. Other symptoms, including severe chronic sleep impairment, suspiciousness, flattened affect, hypervigilance, and exaggerated startle response indicate an overall disability picture that warrants a 70 percent evaluation. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). In summary, the Board finds that the evidence is at least in equipoise that the Veteran's PTSD symptoms have resulted in occupational and social impairment in most areas. A higher 100 percent rating is not warranted as the Veteran has still been able to maintain some social connections, including with family, and has demonstrated some improvement in his quality of life through psychiatric treatment. Simply put, the Veteran's symptoms more closely approximate a 70 percent disability evaluation. 38 C.F.R. §4.130, Diagnostic Code 9411 (2017). In this regard, it is important for the Veteran to understand that not all evidence in this case supports the 70 percent rating, let alone a 100 percent rating for this problem. The 70 percent rating assigned herein acknowledges significant problems. If the Veteran had not had few or no problems associated with his psychiatric disability, there would be no basis for a compensable evaluation, let alone a 70 percent evaluation for the psychiatric disability, which is not always supported by the medical evidence cited above, for reasons cited above. If the Veteran did not have the problems he has cited, there would be no basis for the Board's increase of this claim to 70 percent. A 70 percent disability evaluation is a highly significant disability evaluation, indicating, very generally, a 70 percent reduction in the Veteran's ability to function. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities will be rated as totally disabled. 38 C.F.R. § 4.16 (2017). The Veteran is service-connected for PTSD, rated at 70 percent disabling, as discussed above. As the Veteran has one service-connected disability that is ratable at 60 percent or more, the Board finds that he meets the requirements for a schedular TDIU. 38 C.F.R. § 4.16(a) (2017). The Veteran has reported that he is unable to work because of his service-connected PTSD disability. In the Veteran's claim for a TDIU he indicated that the most schooling he had was high school with two years of college. His last job was with his self-owned appliance installation business, Enterprise Installation LLC, where he reported working from 2004 to 2010. He reported that his psychiatric disability affected his ability to work in May 2010 and that he became too disabled to work in August 2010. Thereafter, in September 2010, the Veteran entered the inpatient Stress Treatment Program for PTSD at Bay Pines Medical Center for an eight-week program. As discussed in the analysis for an increased evaluation for PTSD, the Veteran's symptoms included unprovoked irritability and violent outbursts, near-continuous anxiety and depression, hypervigilance, and intrusive thoughts. He has reported a significant history of difficulty interacting with customers and fellow contractors, which has restricted his ability to obtain and maintain a job. In light of the Veterans occupational background and functional limitations, and giving him the benefit of the doubt at this time based on credible lay statements, the Board finds that the Veteran's service-connected disability is sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Withdrawal of Earlier Effective Date Claim The record shows that the Veteran filed a timely notice of disagreement with the rating assigned for temporary total evaluation due to hospitalization over 21 days. In January 2015, the Veteran perfected an appeal of the issue. In a written statement received in January 2018, the Veteran stated he wanted to withdraw the appeal of that issue which was currently pending before the Board. As the Veteran has withdrawn the substantive appeal, the Board does not have jurisdiction to decide the appeal. ORDER Entitlement to an evaluation of 70 percent for PTSD, but no higher, is granted. Entitlement to a TDIU is granted. The appeal of entitlement to an earlier effective date for temporary total evaluation due to hospitalization over 21 days is dismissed. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs