Citation Nr: 1821077 Decision Date: 04/10/18 Archive Date: 04/19/18 DOCKET NO. 14-06 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1991 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder causes occupational and social impairment with deficiencies in most areas, but has not caused total occupational and social impairment. 2. Given the increase in his PTSD rating to 70 percent, the Veteran meets the schedular rating criteria for TDIU, and his service-connected disabilities are found to prevent him from securing and maintaining gainful substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for the Veteran's PTSD have been met, but the criteria for a total disability rating have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for TDIU are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case however, the disposition is fully favorable to the Veteran, and, therefore, any failure on VA's part to notify and assist the Veteran is deemed moot. II. Increase Rating The Veteran was granted service connection for PTSD by a February 2010 rating decision and assigned an evaluation of 50 percent effective May 11, 2009 (the date the claim was received). The Veteran disagreed with the 50 percent evaluation assigned and asserts that he is entitled to a higher rating. The Board finds that a 70 percent rating is warranted for the Veteran's service-connected PTSD. However, at no time have the criteria for a 100 percent schedular rating been met. 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. 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. Under the General Rating Formula for Mental Disorders, a 50 percent evaluation is assigned when a veteran's mental disability causes 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran's mental disability causes 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran's mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating 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. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Here, the Veteran's treatment records and statements indicate that he has experienced psychiatric symptoms as a result of his PTSD including: difficulty sleeping due to nightmares; hypervigilance; hyper startle; flashbacks; depression; anxiety, irritability, and anger. The Veteran has also submitted several statements from people that knew him prior to service. The statements from a neighbor, ex co-worker, and friend, collectively observed the following symptoms in the Veteran: change in temperament and has a hard time getting alone with other people; violent temper at work; distracted easily; flashbacks; unable to be in large crowds; sleepwalking and pacing the back yard at night; and constant restlessness and screams during sleep. A June 2014, SSA disability determination indicated that the Veteran is permanently disabled due to a back condition and mental disorders including his service connected PTSD. In January 2018, the Veteran credibly testified before the Board that he is under treatment for PTSD at a VAMC. He testified that he only has one friend that went to high school with him. He stated that he has been married and divorced three times. The Veteran reported the following symptoms: bad dreams every night; sleep walking; easily provoked to anger and recent altercation; prior thoughts of suicide or harming others, however, he stated that having his son keeps him from harming others or himself. The Veteran also testified that he last worked in 2009 and tried to go back to work, but his back and PTSD had made it hard to find a job. Upon review of the record, the Board finds that the weight of the evidence indicates that the Veteran is entitled to a disability rating of 70 percent. The Veteran's symptoms (as described above) most closely approximate the criteria for occupational and social impairment with deficiencies in most areas. Therefore, a disability rating of 70 percent is granted. As noted above, a 100 percent schedular rating requires that total social and total occupational impairment be shown. Moreover, it is not just the symptoms that are present, but rather it is how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Here, the Veteran's psychiatric symptomatology has clearly caused significant impairment, but it cannot be said that he experienced total social impairment. Admittedly, the Veteran reported that he was married and divorced three times and he only has one friend. However, a 70 percent rating contemplates the inability to establish and maintain effective relationships. Moreover, the Veteran currently resides with his parents, is a single parent to his son and was able to interact with a neighbor, ex-coworker and friend in order to obtain statements for his claim. As such, it is clear that the Veteran is capable of some level of social interaction and therefore it cannot be said that he is totally socially impaired. As such, it cannot be concluded that the Veteran's psychiatric disorder resulted in total occupational and social impairment. Accordingly, a disability rating of 70 percent rating, but no higher, is granted. III. TDIU The Veteran contends that he is entitled to TDIU. The Veteran reported that he is unable to work due to his PTSD symptoms. As this decision grants a rating of 70 percent for the Veteran's service-connected PTSD, the Veteran has met the schedular rating criteria for TDIU. The record indicates that he was substantially gainful employed until 2009, at which point he stated he was no longer able to work on account of his service connected PTSD. VA medical records indicate that the Veteran was terminated from his job due to constant arguments with his boss and VA medical appointments. In addition, an ex-coworker submitted a statement that he witnessed the Veteran's violent temper with arguments at work (which the Board associates with the Veteran's psychological problems), and that the Veteran has not been able to secure gainful employment ever since. Furthermore, a June 2014, SSA disability determination indicated that the Veteran is permanently disabled due to a back condition and mental disorders including his service-connected PTSD. In addition, the SSA decision specifically noted that the Veteran's mental conditions prevent him from having direct contact with the public. Having reviewed the evidence and received the Veteran's testimony, the Board concludes that the Veteran's PTSD prevents him from obtain or maintain substantially gainful employment. As such, TDIU is granted. (CONTINUED ON NEXT PAGE) ORDER A disability rating of 70 percent, but no higher, for PTSD is granted, subject to the provision governing the award of monetary benefits. TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs