Citation Nr: 1819948 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 14-28 032A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Christopher J. Boudi ATTORNEY FOR THE BOARD E. Jones III, Associate Counsel FINDINGS OF FACT 1. The Veteran's service-connected disabilities consist of PTSD (70 percent from September 21, 2010) and residuals form a shell fragment wound to the back area (noncompensable from September 21, 2010). His combined total rating has been 70 percent from September 21, 2010. 2. The Veteran's service-connected PTSD precludes him from securing and following substantially gainful employment consistent with his educational and occupational experience. 3. For the entire period of appeal, the Veteran's PTSD is productive of a disability picture that more nearly approximates that of occupational and a social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). 2. For the entire period of appeal, the criteria for the assignment of a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION(S) Introductory Matters The Veteran served on active duty in the United States Army from April 1970 to June 1972. He was awarded the Purple Heart and the Army Commendation Medal, among other decorations. This matter is before the Board of Veterans' Appeals (Board) on appeal of February 2011 and April 2015 rating decisions of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). A July 2014 rating decision increased the Veteran's disability rating for PTSD from 50 percent to 70 percent for the entire period on appeal. The Veteran claimed TDIU benefits in August 2014. Although the Veteran has not submitted a Substantive Appeal with regard to his PTSD claim, the Court of Appeals for Veterans Claims has held that a Substantive Appeal is not a jurisdictional requirement for the Board's consideration of a Veteran's claim. Percy v. Shinseki, 23 Vet. App. 37 (2009). This is especially true where the statements of the Veteran regarding the issue under consideration contain sufficient information to qualify as a Substantive Appeal pursuant to 38 C.F.R. § 20.202. Archbold v. Brown, 9 Vet. App. 124 (1996). Here the Veteran set forth in a November 2017 statement his rationale both for an increased rating for PTSD and a grant of TDIU. Therefore, the Board finds that the Veteran did perfect a timely appeal and the Board has jurisdiction of the issue of entitlement to service connection for PTSD. TDIU The Veteran contends that his service-connected PTSD prevents him from working. Total disability meriting a 100 percent schedular rating exists "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability may nonetheless be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability ratings for compensation 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities consist of PTSD and residuals of a shell fragment in his back. His combined total rating is 70 percent from September 21, 2010. Thus, the percentage requirements of § 4.16(a) are met. The remaining issue is whether the service-connected disabilities preclude the Veteran from engaging in substantial gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Regarding the Veteran's education and employment history, he is a high school graduate. He indicates that he worked full-time at a steel mill until 2002. In 2004, he worked full time as a toll booth attendant but this lasted only a few months because of difficulty interacting with coworkers and supervisors. He worked 30 hours per week as a truck driver from 2004 to 2009, but could not work more hours due to PTSD. He quit this job due to anxiety, depression, and anger. In 2011 and 2012, he worked 28 hours per week as a bar manager for the American Legion, ordering food and alcohol for the Post. He states that this job accommodated him by allowing as many breaks as he needed. The Board finds that the Veteran's service-connected disabilities are shown to preclude him securing and following substantially gainful employment consistent with his educational and work background. VA treatment notes beginning in 2014 show that due to PTSD, the Veteran does not leave his home for days at a time, often sitting in darkness the entire time. He startles easily and is often agitated or irritable. In January 2014, a private treating LCSW opined that the Veteran has marked difficulties in maintaining concentration, persistence, and pace, and has seriously limited ability to deal with work stresses including changes in a routine work setting. In December 2015, a private vocational expert opined that the Veteran is "clearly unable to work" due to isolation, irritability, concentration deficits, and excessive absenteeism. A November 2017 VA examiner stated that the Veteran has unimpaired ability to sustain concentration for simple tasks, mild difficulties with task persistence and pace, and mildly impaired ability to respond appropriately to coworkers, supervisors, and the general public. The examiner opined that the Veteran is not precluded from working in a sedentary, structured, solitary work environment. While the Board finds this examiner competent and credible, her opinion has low probative value as to the Veteran's work abilities because it is inconsistent with the examiner's own assessment that the Veteran has difficulty establishing and maintaining effective work relationships and difficulty adapting to stressful circumstances, including work or a work-like setting. The Board finds that the Veteran is competent to report his symptoms of PTSD that relate to work, as well as the difficulties he has experienced on the job related to PTSD. Nothing in the record calls into question his credibility in this regard. The January 2014 LCSW and December 2015 vocational expert are likewise competent-due to training and expertise-and credible. Evidence from all three sources has great probative weight because they are consistent with each other and with observations over several years from VA treating sources. This evidence shows that the Veteran is unable to work because PTSD symptoms cause him to concentrate poorly, miss work, require significant at-will breaks, have strained relationships with supervisors and coworkers, and act out in anger while at work. In sum, probative lay and medical evidence establishes that the Veteran's PTSD causes significant occupational impairment, including inability to obtain and maintain substantially gainful employment. Thus, entitlement to a TDIU by reason of service-connected disabilities is warranted. Increased Rating for PTSD The Veteran contends that his PTSD should be rated in excess of 70 percent. He reports symptoms of depression, anxiety, anger outbursts, thoughts of suicide, panic and anxiety attacks in public, difficulty dealing with stressful situations, difficulty making and keeping friends, difficulty keeping relationships with his children, nightmares, sleep troubles, and problems with intimacy. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The rating criteria for rating mental disorders, including PTSD, reads as follows: a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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 work-like setting); inability to establish and maintain effective relationships. Id. The Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The amended provisions do not to apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. In this case, the Veteran filed a Notice of Disagreement on August 12, 2014. Therefore, the new version of the Schedule for Rating Disabilities is for application in the instant appeal. As stated above, to qualify for a 100 percent disability rating for PTSD, the Board must find that the Veteran has total occupational impairment and total social impairment. In its analysis of the Veteran's TDIU claim, above, the Board acknowledges that the Veteran has total occupational impairment. The remaining question, therefore, is whether the Veteran has total social impairment. The Board finds that he does not. A rating in excess of 70 percent is therefore not warranted. The Veteran does not have the type or degree of symptoms or effects illustrated by the 100 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The record shows no gross impairment in the ability to communicate. Rather, for example, at a November 2017 VA mental health appointment, he apologized for arriving late, discussed traffic patterns in the area, talked about his grandson, and discussed his psychological symptoms in an "open and forthright" manner. The record shows no persistent hallucinations or grossly inappropriate behavior. The Veteran has acted out in anger in the workplace but there is no evidence that this occurs on a sustained basis. For most of the period on appeal, the Veteran has denied suicidal or homicidal ideation. At the November 2017 VA examination, he endorsed passive, fleeting feelings of suicidal ideation over the prior several years, without intent or plan, but said he would not hurt his grandson by committing suicide. He is therefore in no persistent danger of hurting himself or others. Although the record shows that the Veteran stays at home for days at a time, there is no evidence that he fails to perform activities of daily living, including minimal personal hygiene, at home or on the occasions he leave home. At the November 2017 examination, he was appropriately dressed and groomed, with good hygiene. He has shown no disorientation to time or place. Rather, for example, he was very conscious of being late to his November 2017 VA treatment session. He has not shown memory loss to the degree of forgetting his own name or close relatives' names. With regard to opinion evidence, the Veteran has made no lay statements that correspond with functioning at the 100 percent disability level. He is competent and credible when he reports that he does not go to family social functions, often sits at home or in his garage, and is very uncomfortable leaving home or being around others. These symptoms are accommodated by the 70 percent rating, however, which includes social impairment with inability to establish and maintain effective relationships. RS, a private treating nurse practitioner, and CS, a treating social worker, opined in January 2014 and March 2014, respectively, that the Veteran has extreme difficulties in maintaining social functioning. Although the Board finds RS and CS competent-given their training and expertise-and credible, their opinions have low probative value because they are inconsistent with their own descriptions of the Veteran's symptoms. For example, CS stated the Veteran "does not manage stress well, he is avoidant, and lacks interpersonal skills necessary for problem solving. . . . He is extremely avoidant of public places, large crowds, and even experiences significant anxiety at family functions." These symptoms are more indicative of inability to establish and maintain effective relationships, i.e. a 70 percent disability rating, versus grossly inappropriate behavior or persistent danger to self or others. The November 2017 VA examiner opined that the Veteran has social impairment with reduced reliability and productivity, consistent with a 50 percent rating. The Board finds this examiner competent due to her training and expertise, and credible. Her opinion is probative to the question of whether the Veteran's PTSD warrants a rating in excess of 70 percent, as it is based on her observations that the Veteran was interactive and pleasant, with spontaneous speech, and that he opened up and discussed his psychological symptoms with her. These interactions are not reflective of impaired functioning at the 100 percent level. Weighing this evidence, the Board finds that the Veteran's symptoms have not been of such frequency, severity, and duration so as to result in total occupational and social impairment. A rating in excess of 70 percent under Diagnostic Code 9411 is therefore not warranted. ORDER A TDIU is granted. An initial rating in excess of 70 percent for PTSD is not warranted. ____________________________________________ Evan M. Deichert Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs