Citation Nr: 1808124	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  14-22 646	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

1. Entitlement to a rating in excess of 30 percent from December 18, 2012 to November 21, 2015, and entitlement to a rating in excess of 50 percent thereafter for post-traumatic stress disorder (PTSD).

2. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Timmerman, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from August 1987 to August 1991. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) New York, New York.

In December 2016, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record.


FINDINGS OF FACT

1. Before September 23, 2014, the Veteran's PTSD was characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; reduced reliability and productivity were not shown.

2. From September 23, 2014 to September 30, 2016, the Veteran's PTSD was characterized by occupational and social impairment with reduced liability and productivity.

3. Since September 30, 2016, the Veteran's PTSD has been characterized by occupational and social impairment with deficiencies in most areas.




CONCLUSIONS OF LAW

1. Before September 23, 2014, the criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1110, 1131, 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017).

2. From September 23, 2014 to September 30, 2016, the criteria for a rating of 50 percent for PTSD have been met. 38 U.S.C. § 1110, 1131, 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017).

3. Since September 30, 2016, the criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C. § 1110, 1131, 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Legal Framework

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In addition, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination.  38 C.F.R. § 4.126(a).

When evaluating the level of disability from a mental disorder, the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Psychiatric impairment is rated according to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130.  Under that formula, a 30 percent rating is assigned for 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).

A 50 percent rating is assigned for 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 effective work and social relationships.

A 70 percent rating is assigned for 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. 

When determining the appropriate disability rating to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veteran's impairment must be "due to" those symptoms, and that a Veteran may only qualify for a given rating by demonstrating the particular symptoms associated with that percentage disability, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.

II. Evidence

The Veteran's service connected PTSD is currently rated as 50 percent disabling. He contends that his PTSD warrants a rating in excess of 30 percent from December 18, 2012 to November 21, 2015, and a rating in excess of 50 percent thereafter.The Board finds the following: 1) the Veteran's PTSD does not warrant a rating in excess of 30 percent prior to September 23, 2014; 2) the Veteran's PTSD warrants a rating of 50 percent from September 23, 2014 to September 30, 2016; and 3) the Veteran's PTSD warrants a rating of 70 percent from September 30, 2016 to the present. Thus, the Veteran's claim is denied in part and granted in part.

The Veteran has been afforded four PTSD VA examinations throughout the period on appeal. At a February 2013 examination, the Veteran reported that after 12 years of marriage, his problems with employment and anxiety were causing him and his wife to contemplate separation. He reported that he was involved in a church and in volunteer work, and that he engaged in occasional exercise. He reported that he had been for the most part steadily employed since leaving the service. Since his last psychiatric evaluation, he had earned a BS degree in psychology and had undertaken some graduate education as well. He had not been undergoing any psychiatric treatment, and was not on any psychotropic medications. He had no history of psychiatric admissions, suicidal behavior, or psychosis. He reported that once in the last year his wife had called the police, alleging domestic violence, but there had been no charges. He denied any drug or alcohol abuse. He reported that he had some difficulties with crowds, as in shops and stores, but no difficulty with driving, housework, exercise, or general self-care.

At a September 2015 examination, the Veteran reported that he had by then been divorced for a year and a half, and that his wife permitted him to have only intermittent contact with his children. He reported that he had moved away from his family to Denver in March 2015, and had no local friends, although he occasionally spoke with some Army friends and to his mother. In addition, his father had recently died, and the Veteran reported that he experienced intermittent depression related to his divorce, the situation with his children, and his father's death. He reported that he was still employed, and that he got along well with his boss and other staff. He reported that he was still not receiving any mental health treatment. He reported that he was experiencing the following psychiatric symptoms: nightmares and intrusive thoughts related to combat several times a week; dissociative episodes, which he described as "spacing out," several times a week; anxiety crossing the street, beginning in the past year, with occasional panic attacks; belief that the world is dangerous, emotional detachment, and a fear of crowds; difficulty falling asleep; irritability, emotional outbursts, and occasionally an exaggerated startle response. The Veteran reported no reckless or inappropriate behavior, suicidal ideation, hallucinations, or paranoia. He also reported that he believed he was having some manic-depressive symptoms, such as spending money impulsively, which had just begun in the past year. However, he reported that these symptoms had improved since his move. 

The examiner opined that the Veteran's symptoms had "remained largely the same as when he was last evaluated" and that they constituted "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks." However, the Board finds that the severity of the Veteran's symptoms represented a marked increase from his previous examination. For instance, whereas in the September 2015 examination, the Veteran reported intrusive thoughts and nightmares related to combat, frequent dissociative episodes, anxiety, and panic attacks, none of these symptoms are reflected in the February 2013 examination. 

At a December 2015 examination, the Veteran reported that he had been homeless for the past two months. He reported that he had been at a new job since October, and that he was social with his coworkers, although not outside of work, since he was preoccupied with the search for housing. He reported that his PTSD symptoms did not interfere with his performance or attendance at work, and that he was doing better at his new job because he had less contact with clients. He reported no drug or alcohol abuse. He reported that he was still not receiving any mental health treatment, nor was he on any psychotropic or psychiatric medications. The examiner recorded the following psychiatric symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, neglect of personal appearance and hygiene, and intermittent inability to perform other activities of daily living. The Veteran reported no suicidal ideation, and the examiner opined that he did not appear to pose any threat of danger or injury to himself or others.

Following this examination, a February 2016 rating decision increased the Veteran's disability rating for PTSD to 50 percent.

At an October 2016 examination, the Veteran reported that he had been unemployed for the last few weeks before the examination. He reported that he left his job after not getting along with his supervisor, who told him that he "was not communicating."  He reported that he had remained homeless from the time of his last evaluation up to August 2016, when he began living with his cousin. He reported that he usually spent his days going from place to place to try to get food and to apply for jobs. He also reported that he was several months behind in child support payments. The examiner recorded the following psychiatric symptoms: depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner noted no flattened affect, disturbances of mood or motivation, or evidence of memory loss or impairment. The Veteran reported difficulty sleeping, but not nightmares. He reported that that he was still not receiving any mental health treatment, nor had he sought any.

At a hearing before the Board in December 2016, the Veteran testified that he was still unemployed and living with his cousin. He testified that he had left his last job because of his PTSD. According to his testimony, on several occasions he had left work during the day without notice in order to deal with a panic attack. Upon returning, he failed to communicate effectively with his supervisor about what was going on. He indicated that he was hesitant to talk to her about his PTSD for fear that she would see him as unfit to do his job. He did not express confidence that if he got another job he would be able to consistently stay all day, although he testified that he had no problem completing tasks, and showing up every morning. He indicated that his only concerns were his panic attacks and his difficulty communicating with supervisors. The Veteran testified that he was currently in a relationship, and that it was going "okay for now." He testified that he had no consistent hobbies, but that he liked to watch movies and ride his bike, and that he went to the gym occasionally. He testified that he experienced intermittent, infrequent panic attacks. He indicated that these attacks had recently been increasing in frequency, but that he still only had a few in a year. For instance, he might have none for a few months, and then three in short succession. He also testified that his insomnia was getting worse, and that it was accompanied by hyper-vigilant episodes, in which he would get up to go to the bathroom, and then begin checking the doors and windows of his cousin's house.  He testified that traumatic memories and nightmares were also keeping him up at night. He also testified that he experienced periods of depression and mild fear of prolonged exposure to crowds.

III. Analysis

As evidenced in the February 2013 examination, prior to September 23, 2014, the Veteran exhibited only mild PTSD symptoms, such as anxiety, chronic sleep impairment, some difficulty with crowds, and trouble adapting to work. The Veteran reported that he had been more or less steadily employed since service, and although he reported some marital difficulties, he also reported that he was involved with his church and in volunteer work. In other words, despite some real difficulties, the Veteran's social and occupational functioning were for the most part normal. Therefore, the Board finds that prior to September 23, 2014, the Veteran's disability picture does not rise to the level of "occupational and social impairment with reduced reliability and productivity," and as such does not warrant a rating in excess of 30 percent.

At the September 2015 examination, however, the Veteran reported significantly more severe symptoms, such as intermittent depression, nightmares and intrusive thoughts related to combat, dissociative episodes, irritability, emotional outbursts, and possible manic-depressive symptoms such as compulsive spending. The Veteran reported that he had no friends in his new home, and only intermittent contact with his family. According to the December 2015 examination, the Veteran quit his job within a month of the September examination, due to the stress of dealing with clients. The Board finds that this disability picture constitutes "occupational and social impairment with reduced liability and productivity due to such symptoms as: . . . impaired judgment, . . . disturbances of motivation and mood; [and] difficulty in establishing effective work and social relationships," and is consistent with the criteria for a 50 percent disability rating.

Notably, at the time of the September 2015 examination, the Veteran reported that his manic-depressive symptoms had begun the year before the September 2015 examination. He also reported that his depression was linked to his father's death and his divorce, which resulted in reduced contact with his children. These events had also occurred within the year or year and a half before the examination. Therefore, resolving doubt in favor of the Veteran, the Board finds that the criteria for an increased rating of 50 percent were met a year before the examination, on September 23, 2014.

A subsequent examination conducted in October 2016 and the Veteran's December 2016 hearing testimony together portray a gradually worsening disability picture. In some respects, the December 2015 examination indicates an improvement in the Veteran's symptoms since the September 2015 examination. For instance, the Veteran reported that he was doing better at his new job than he had been at his old one, and that he was social with his coworkers. The Veteran also did not report symptoms such as frequent combat-related nightmares and intrusive thoughts, dissociative episodes, irritability, or emotional outbursts. Nevertheless, the Veteran did report that he had been homeless for the past two months, and the examiner recorded new symptoms that indicated a decrease in occupational and social functioning, such as suspiciousness, mild memory loss, flattened affect, neglect of personal appearance and hygiene, and intermittent inability to perform other activities of daily living.

As of the October 2016 examination, the Veteran was also unemployed, having left his job for reasons related to his PTSD. Although he reported that he had a place to stay with his cousin, he reported that his days were spent in a search for food and for a job, and that he was several months behind in child support payments. His situation had not improved by the time of his December 2016 hearing. He testified that he was still unemployed, and he indicated that he was concerned that his panic attacks would interfere with any future employment. He testified that his insomnia was worsening, and that he was kept up at night by traumatic memories and nightmares, and by hyper-vigilant episodes. He also testified that his panic attacks were increasing in frequency. In short, from the time the Veteran left his job in September 2016, he remained unemployed, he gave no indication of being in touch with friends or family aside from his mother and his cousin, and he experienced panic attacks, depression, anxiety, suspiciousness, and hyper-vigilant compulsions. Furthermore, there is no evidence of the cessation of symptoms noted on the December 2015 examination, such as mild memory loss, flattened affect, neglect of personal appearance and hygiene, and intermittent inability to perform other activities of daily living. Therefore, the Board finds that from September 30, 2016 on, the Veteran's disability picture constitutes "occupational and social impairment, with deficiencies in most areas, such as work, . . . family relations, judgment, thinking, or mood," and therefore warrants a rating of 70 percent disability.



IV. TDIU

Finally, the Court of Appeals for Veterans' Claims (CAVC) has held that a total rating for compensation based on individual unemployability (TDIU) is a part of a claim for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009).  Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Board finds that the Veteran's hearing testimony that his PTSD caused him to leave his last job and that he is concerned his panic attacks will interfere with any future employment constitutes evidence of unemployability, and therefore a claim for a TDIU has been raised by the increased-rating issue on appeal.

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of one disability that is rated at least 60 percent disabling.  38 C.F.R. § 4.16(a). The Veteran has met the percentage requirement in this case, given that a 70 percent disability rating is granted herein for the period from September 30, 2016 on. 

The remaining question, then, is whether the Veteran's PTSD precludes him from securing and following a substantially gainful occupation.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  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).  Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed.  Id. at 363.  Thus, the central question is whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a Veteran could find employment.  Id.  Consideration may be given to a Veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

As noted above, the Veteran holds a BS in psychology and has completed some graduate education. He was last employed in September 2016, as a press assistant in graphic arts. Before that, he worked from the time of his move in March 2015 until October 2015 as a behavior technician in a hospital system, counseling juveniles. Before that, he held several permanent and temporary positions as case manager or therapist, including positions at a county psychiatric hospital, various non-profits, and a VA regional office.

In the February 2013 examination, the Veteran reported that he and his wife were considering separation in part because of his problems with employment. In the December 2015 examination, he reported that he quit his job as a behavior technician because of the high stress he experienced as a result of dealing with clients. It was at this examination that he first reported that he was homeless and that the examiner first noted more severe symptoms such as suspiciousness, mild memory loss, flattened affect, neglect of personal appearance and hygiene, and intermittent inability to perform other activities of daily living. In the October 2016 examination, the Veteran reported that he had been unemployed for the last few weeks, and he testified at the December 2016 hearing that his PTSD had caused him to leave his job after he more than once left work during the day to deal with a panic attack. He indicated that he was unable to explain the situation to his supervisor for fear that she would see him as unfit to do his job. He did not express confidence that if he got another job he would be able to consistently stay all day long. He indicated that he was concerned that his panic attacks would continue to increase in frequency, and that he would continue to have trouble communicating with supervisors. At the time of the hearing the Veteran was staying with his cousin, but remained unemployed.

The Board credits the Veteran's testimony that his current unemployment was caused by his PTSD. The Veteran is competent to report his own symptoms and the effect they have on his life. Further, the Board notes that the Veteran's difficulty dealing with people, which contributed to his leaving his job in September 2016, was a consistent symptom of his PTSD from as early as March 2015, when he began work as a behavior technician. As noted above, the stress of dealing with clients in this position ultimately caused the Veteran to quit.

On the other hand, the Board notes that in the October 2016 examination, the examiner opined that "[w]ith PTSD, the Veteran is able to work in a work environment in which work is routine, supervision loosely applied, and contact with the public minimal." However, opinions of health care professionals are not dispositive in adjudicating TDIU claims; rather, the Board must assess the functional limitations noted by the health care professionals and determine whether they render the Veteran unemployable consistent with the applicable regulations.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.").

Here, the evidence of record suggests that since the Veteran left his job in September 2016, he has been prevented from working by the confluence of two particular PTSD symptoms: difficulty with people, which has manifested consistently since around March 2015, and panic attacks, which appears to be increasing in severity. Weighing this disability picture against the opinion of the aforementioned VA examiner, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is incapable of performing the physical and mental acts required to be employed. When there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Therefore, resolving all doubt in favor of the Veteran, entitlement to a TDIU is warranted from September 30, 2016 on.



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ORDER

Before September 23, 2014, a rating in excess of 30 percent for PTSD is denied.

From September 23, 2014 to September 30, 2016, a rating of 50 percent for PTSD is granted, subject to controlling regulations governing the payment of monetary awards.

From September 30, 2016 on, a rating of 70 percent for PTSD is granted, subject to controlling regulations governing the payment of monetary awards.

A TDIU is granted, effective September 30, 2016, subject to controlling regulations governing the payment of monetary awards.




____________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs