Citation Nr: 1808282 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-13 510 ) DATE ) ) On appeal received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) with major depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2012, the Board denied the Veteran an initial rating in excess of 50 percent for PTSD. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2014 Memorandum Decision, the Court set aside the Board's decision and remanded the claim to the Board for readjudication consistent with the Court's instructions. FINDINGS OF FACT 1. For the period prior to March 8, 2010, the Veteran's PTSD with major depressive disorder was characterized by occupational and social impairment with reduced reliability and productivity. 2. For the period starting March 8, 2010, the Veteran's PTSD with major depressive disorder has been characterized by occupational and social impairment with deficiencies in most areas. 3. The Veteran is service-connected with several disabilities collectively rated at 80 percent, including PTSD with major depressive disorder rated at 70 percent, and chronic diarrhea rated at 30 percent. 4. The Veteran's service-connected disabilities preclude him from obtaining and securing substantially gainful employment that is consistent with his education and experience. CONCLUSIONS OF LAW 1. For the period prior to March 8, 2010, the criteria for a rating in excess of 50 percent for PTSD with major depressive order have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. For the period starting March 8, 2010, the criteria for a rating of 70 percent, but no higher, for PTSD with major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating for PTSD Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App 119 (1999). In this case, the Veteran's disability has significantly changed over the course of the appeal period; thus, staged ratings have been assigned accordingly. The Veteran's PTSD with major depressive disorder has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, 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 and maintaining 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. A 100 percent rating is assigned for 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. The Veteran contends that he is entitled to an increased rating for his PTSD with major depressive disorder because the currently assigned 50 percent rating does not adequately represent the severity of his condition. The preponderance of the evidence demonstrates that the Veteran's condition was characterized by occupational and social impairment with reduced reliability and productivity for the period prior to March 8, 2010. The Veteran's treatment records for this period demonstrate that the Veteran reported experiencing a low or depressed mood; anxiety; panic-like sensations occurring twice per week; sleep impairment and recurrent nightmares; impaired concentration; low energy; irritability; quickness to anger; hypervigilance; exaggerated startle response; frustration; an occasional feeling of being distant from others; and, severe emotional numbing. See May 2008 VA Treatment Records, pp. 1, 4; December 2014 CAPRI, pp. 117, 119, 123 (located in Legacy Content Manager). The Veteran was observed as having a low affective display and low engagement; however, he denied any suicidal ideation during this time. See December 2014 CAPRI, pp. 54, 117, 123. The Board finds that the Veteran's disability more closely approximates the picture contemplated for a 50 percent disability rating for the period prior to March 8, 2010. The evidence does not demonstrate that required for a 70 percent rating or an even higher 100 percent rating. In particular, the evidence does not show total occupational or social impairment, or 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; or, symptoms of similar severity. Rather, the Veteran's low affective display, panic attacks (occurring twice per week), disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships most closely approximate the severity of the symptoms contemplated by a 50 percent rating. Thus, the Board concludes that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 50 percent for PTSD with major depressive disorder for the period prior to March 8, 2010. For the period starting March 8, 2010, the evidence demonstrates that the Veteran's PTSD with major depressive disorder has been characterized by occupational and social impairment with deficiencies in most areas. The Veteran underwent VA examinations in March 2010, January 2015 and October 2016. The report of symptoms was largely consistent across the three examinations. Among many other symptoms, the Veteran reported chronic sleep impairment and recurrent nightmares; anxiety; isolation; difficulty getting along with family members; low interest in engaging in activities; impaired concentration; obsessively checking of the doors and windows in his home; angry and violent outbursts; and, frequent suicidal ideation. The March 2010 examiner noted that the Veteran was disoriented to time, and both the January 2015 and October 2016 examiners described the Veteran's affect as "flattened." The Veteran's symptoms as captured by his VA treatment records are also consistent with those reported at the VA examinations. The Veteran regularly reported experiencing depression; anxiety; chronic sleep impairment and nightmares; passive suicidal ideation; memory impairment; isolation; impaired concentration; low motivation; irritability; and, anger. See January 2017 CAPRI, pp. 22, 57, 89, 102, 127, 174, 203 (located in Legacy Content Manager); September 2016 CAPRI, p. 2; April 2016 CAPRI, pp. 21, 45, 83, 91, 120, 149, 164, 172, 184; February 2014 CAPRI, pp. 29, 40, 45, 47, 50; May 2016 VA Treatment Records, p. 2. Other frequent noted observations include bad eye contact, slow psychomotor behavior, and minimally reactive affect. See January 2017 CAPRI, pp. 22, 57, 89, 102, 127, 174, 203; September 2016 CAPRI, p. 2; April 2016 CAPRI, pp. 21, 45, 91, 120, 149, 164, 172, 184; May 2016 VA Treatment Record, p. 2. The Veteran reported regularly researching politicians and other public figures to see if they served in Vietnam and becoming angry if they did not; further, he expressed persistent anger and frustration with males who did not serve in Vietnam. See February 2014 CAPRI, pp. 45, 48. In light of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's disability picture more closely approximates the picture contemplated at the 70 percent rating for the period starting March 8, 2010. The Board finds, however, that the Veteran's symptomatology has not approximated that required for a 100 percent disability rating. Specifically, although the Veteran's symptoms for the period were severe and no doubt presented significant challenges, the evidence did not demonstrate 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; or, symptoms of similar severity. The Veteran did have a single instance of disorientation to time, however the evidence does not demonstrate that this symptom is persistent or severe enough to result in total occupational and social impairment. The evidence demonstrates a persistent depressed mood; chronic sleep impairment; anxiety; disturbances of motivation and mood; isolation; an inability to establish and maintain effective relationships; suicidal ideation; and, obsessional rituals which interfere with routine activities. The Board finds that the severity of the symptoms most closely approximate those contemplated by a 70 percent disability rating. Accordingly, the Board concludes that the weight of the evidence preponderates in favor of a finding of entitlement to a 70 percent rating, and no higher, for PTSD with major depressive disorder for the period starting March 8, 2010. Entitlement to TDIU Total disability ratings for compensation based on individual unemployability (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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran meets the schedular rating requirements for a TDIU, see 38 C.F.R. § 4.16(a), as he has two or more disabilities, with at least one disability ratable at 40 percent (i.e., PTSD with major depressive disorder). The remaining (and dispositive) question is whether the service-connected disabilities render the Veteran incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience. The Veteran has contended that his service-connected disabilities prevent him from securing or following substantially gainful employment, and that he became too disabled to work around June 2000. See September 2016 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran completed his bachelor's degree and has no other formal education or training. The Veteran's post-service employment history consists of more than 30 years in the power train division for an automotive manufacturer. See April 2016 CAPRI, p. 195. Turning to the impact of the Veteran's service-connected disabilities, the Veteran is service-connected for PTSD with major depressive disorder and for chronic diarrhea. The Veteran attributed his early retirement to an inability to get along with people. See January 2015 VA Examination, p. 2. Because of his PTSD and major depressive disorder, the Veteran does not like to be around people and does not feel safe outside of his home; further, he is easily angered and frustrated, suffers from chronic sleep impairment, and experiences difficulty with concentration. See October 2016 VA Examination, p. 8; April 2015 Statement in Support of Claim. As noted above, the Veteran's treatment records are replete with reports of suicidal ideation; irritability; isolation; depression; anxiety; and, lack of energy and motivation. Regarding the chronic diarrhea, the condition requires that the Veteran constantly be near a restroom, and occasionally results in accidents. See October 2016 VA Examination, p. 8. The October 2016 examiner opined that it would be important for the Veteran to work in an occupational setting which minimizes interactions with the general public, and that the Veteran would likely feel uncomfortable in an occupational setting with a high number of coworkers. The examiner noted that the Veteran would also likely need frequent breaks and less than a full-time schedule. The Board finds that the impact of the Veteran's PTSD with major depressive disorder and chronic diarrhea make it impossible for him to secure and maintain substantially gainful employment. As noted by the October 2016 examiner, the Veteran's conditions make it uncomfortable for him to work with large numbers of coworkers and also require him to have frequent breaks. The Veteran's employment history consists solely of work that would require him to have frequent interactions with others, and there is no indication that he would be afforded the flexibility needed to accommodate his conditions. Moreover, the Veteran has stated that he has no additional specialized education, training or other experience that suggests he may be able to secure gainful employment outside of his past work in the automotive industry. Many of the symptoms that impact the Veteran's ability to successfully work in the automotive industry, such as chronic sleep impairment, anger, frustration, depression, memory impairment, and frequent trips to the restroom, would impact the Veteran's ability to successfully perform work in most occupational settings. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to maintain a substantially gainful occupation as a result of his service-connected disabilities, and an award of TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER For the period prior to March 8, 2010, a rating in excess of 50 percent for PTSD with major depressive disorder is denied. For the period starting March 8, 2010, an increased rating of 70 percent, and no higher, for PTSD with major depressive disorder is granted. Entitlement to a TDIU is granted. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs