Citation Nr: 1817993 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 12-08 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1964 to February 1968, to include service in the Vietnam. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In the March 2011 rating decision, the RO granted service connection for PTSD and assigned a 10 percent rating, effective October 28, 2010. In his April 2012 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. In a statement later in April 2012, the Veteran withdrew the request for a hearing. The Board therefore deems the hearing request withdrawn pursuant to 38 C.F.R. § 20.702 (e) (2017). In a July 2012 rating decision, the RO increased the Veteran's initial disability rating for PTSD to 30 percent, effective October 28, 2010. As this rating did not provide the maximum benefit available, the issue remained on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In an August 2014 decision, the Board remanded the PTSD issue for further development. In April 2017, the Board increased the rating for PTSD to 50 percent, effective October 28, 2010. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), the parties agreed to vacate the Board's decision and remand the case to the Board for additional development. The JMR was incorporated by reference in a Court order dated in September 2017. The Veteran submitted a claim for a TDIU in February 2018 and has contended that his PTSD is the primary reason for his unemployability. The Court has held that, if the claimant or the record reasonably raises the question of whether a veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the issue of entitlement to a TDIU is also on appeal. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. On and after October 28, 2010, the Veteran's service-connected disabilities have met the percentage requirements for the award of a schedular TDIU, and the evidence indicates that the nature and severity of these disabilities prevent him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for an initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for the award of a TDIU on and after October 28, 2010 have been met. 38 U.S.C. 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS PTSD Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his PTSD warrants a higher rating than that currently assigned. It is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD, with a 50 percent rating on and after October 28, 2010. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that a 50 percent rating is warranted 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when there is 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; 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, occupation, or own name. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA shall assign an evaluation 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). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). During a November 2010 VA treatment appointment, the Veteran reported problems with anger and social isolation, including increased distance from family and friends. He also reported anxiety including jumpiness and hypervigilance and depression including decreased motivation and energy. He reported that he felt safest by himself. He also reported that he had retired from the post office four years prior and had experienced significant stress at work due to difficulties with his supervisor. He cited his spouse and friends as major social supports. The treatment provider noted that the Veteran appeared anxious and agitated and requested a chair where he could easily see the door and window. In a December 2010 VA treatment record, the Veteran reported an intention to move so that he could be closer to his daughters. The Veteran was afforded a VA examination in February 2011. The examiner noted that the Veteran seemed to be a good historian. The Veteran reported that he had been married to his current spouse since 1969, had two adult children, and had positive relationships with all of them. He also reported that he had few to no friends and never socialized with others, other than a weekly breakfast with fellow veterans. The examiner characterized the Veteran's overall occupational and social impairment as mild to moderate. During a June 2011 VA treatment appointment, the Veteran admitted to road rage and the treatment provider found him to be very tense. During an August 2011 VA treatment appointment, the Veteran's spouse reported that the Veteran had been "snapping" at her. During an April 2012 VA treatment appointment, the Veteran reported that he was always anxious and that he felt discouraged by this. A July 2012 VA treatment record noted pressured thinking due to anxiety. In a February 2013 statement, the Veteran reported that he had "blow ups, nightmares, anxiety, no patience and unwarranted anger." The Veteran's most recent VA treatment appointment was in March 2013. In August 2014, the Veteran reported that he had moved to be near his daughters and had not resumed treatment at his new location. The Veteran was afforded an additional VA examination in October 2014. The Veteran reported that his relationship with his spouse had improved and that he had good relationships with his children. He reported ongoing difficulties with impatience, irritability, and nervousness and his spouse reported that the Veteran was more easily startled than in the past. On examination, the examiner listed the Veteran's PTSD symptoms as anxiety, chronic sleep impairment, mild memory loss, and impaired impulse control, such as unprovoked irritability with periods of violence. In a December 2017 statement, the Veteran reported that, prior to his retirement in 2007, his PTSD had profoundly affected his employment, including routine verbal disagreements with supervisors and worry that they were watching him. He reported that he retired as soon as he was eligible to focus on his mental and physical health. He also reported frequent irritability at the smallest provocation. He also reported frequent depressive episodes in which he wanted to be left alone and that his only consistent social interaction was with his spouse. The Veteran has also submitted a January 2018 examination report by a private vocational consultant. The examiner found the Veteran credible regarding his vocational and medical history. The Veteran reported that he seldom went out alone and considered his spouse his best and only friend. He reported that his PTSD caused him to be impatient, irritable, and distrustful of those outside of his immediate family. He reported no significant desire to be around others since his retirement in 2007 and that he had moved partially to be closer to his daughters but also to distance himself from former neighbors, associates, and friends. The examiner found that the Veteran's PTSD symptoms included isolation, nightmares, unwanted thoughts, hypervigilance, impatience, irritability, nervousness, guilt, disabling levels of anxiety, mild memory loss, impaired impulse control, prolonged distress, and decreased energy. The examiner added that the Veteran's level of occupational impairment had been consistent since 2007. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his psychiatric symptoms and overall disability picture warrant an evaluation of 70 percent for PTSD. The record contains evidence of impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. While the Veteran has not manifested all of the symptoms listed in the criteria demonstrating occupational and social impairment with deficiencies in most areas, the Board finds that the record shows deficiencies in most areas, including work, family relations, thinking, and mood. The Veteran's symptoms therefore most nearly approximate those that warrant a 70 percent rating. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board does not, however, find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran's symptoms. There has not been any evidence that the Veteran has had any of the symptoms listed in or similar to the criteria for a 100 percent rating during this period. Even the constant presence of some symptoms listed in the criteria for a 100 percent rating would be insufficient because the overall guiding criterion for a 100 percent rating is total occupational and social impairment. 38 C.F.R. § 4.130; see, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Veteran's symptoms have not been shown to be so severe that he has total occupational and social impairment. The Board will address the impact of the Veteran's PTSD on his occupational functioning in the TDIU section below. As for social impairment, the Veteran has been able to maintain some personal relationships, specifically with his wife and his children. The Board has also considered the Veteran's assertions regarding his psychiatric symptoms his spouse's assertions regarding her observations of his psychiatric symptoms, which she is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The symptoms described in those lay do not provide any basis upon which to assign a rating in excess of 70 percent. In sum, the Board finds that, resolving reasonable doubt in the Veteran's favor, his impairment due to PTSD has been most consistent with a 70 percent disability rating throughout the period on appeal. TDIU VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). If the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The period on appeal begins on October 28, 2010. The Veteran's combined disability rating, after factoring in the increased rating for PTSD granted above, is 10 percent from February 14, 1984 to June 27, 2002, 20 percent from June 28, 2002 to February 8, 2010, 40 percent from February 9, 2010 to October 27, 2010, and 80 percent on and after October 28, 2010. 38 C.F.R. § 4.25 (2017). The Veteran's PTSD is rated 70 percent disabling on and after October 28, 2010, his type II diabetes mellitus is rated 20 percent disabling on and after February 9, 2010, his bilateral hearing loss is rated 10 percent disabling on and after February 14, 1984, and his tinnitus is rated 10 percent disabling on and after June 28, 2002. The criteria for consideration of a schedular TDIU are met on and after October 28, 2010. As stated above, the Veteran has reported that he retired due to his PTSD symptoms. In his December 2017 statement, the Veteran also reported that his tinnitus interfered with his concentration and that his hearing loss caused him to need frequent repetition. The January 2018 examiner, in addition to describing occupational impairment from the Veteran's PTSD, added that his impaired hearing and difficulty concentrating due to tinnitus also had an impact on his employability. Specifically, the examiner found: "Competitive employment - including sedentary, light or otherwise and at any skill level - requires a high degree of reliability, concentration and productivity as well as the ability to maintain effective relationships with co-workers and supervisors, follow a set full-time schedule and handle the stresses of the daily work environment. I opine that [the Veteran's] PTSD, bilateral hearing loss and tinnitus symptoms preclude his ability to reliably maintain concentration and productivity; preclude his ability to maintain effective on-the-job relationships; preclude his ability to follow a set full-time schedule and preclude his ability to handle the typical stresses of any competitive daily work environment - including even simple, sedentary employment." The examiner concluded that "it is at least as likely as not that the Veteran's service-connected PTSD, bilateral hearing loss, and tinnitus alone prevented him from securing and following any substantially gainful occupation since 2007, when he opted for early retirement due to his increasing PTSD symptoms." The criteria for consideration of a schedular TDIU are met on and after October 28, 2010. Given the private examiner's detailed and thorough opinion, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities have rendered him unemployable under the applicable regulations since October 28, 2010. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU on and after October 28, 2010 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the examiner found that the Veteran had been unemployable since 2007 but, given that the period on appeal begins on October 28, 2010 and the primary reason for the Veteran's unemployability is his PTSD, which is only service-connected as of October 28, 2010, the Board does not find that entitlement to a TDIU is warranted prior to that date. ORDER Entitlement to an initial disability rating of 70 percent for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a TDIU on and after October 28, 2010 is granted. ____________________________________________ DAVID A. BRENNINGMEYER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs