Citation Nr: 1824926 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 12-32 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: William C. Herren, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel INTRODUCTION The Veteran had active service from March 1971 to January 1973. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs Regional Office (RO) in Houston, Texas, denying, in relevant part, a rating in excess of 50 percent for PTSD. The Veteran filed a Notice of Disagreement in November 2011 and a statement of case was issued in August 2012. The Veteran filed a substantive appeal (VA Form 9) in October 2012. The Veteran was afforded a hearing before the undersigned Veterans Law Judge at the RO in Houston, Texas in July 2015. A written transcript of this hearing has been prepared and incorporated into the evidence of record. FINDINGS OF FACT 1. The record evidence shows that throughout the entire appeal period, the Veteran's service-connected PTSD most nearly approximates occupational and social impairment with deficiencies in most areas, but does not more nearly approximate total occupational and social impairment. 2. The Veteran's service-connected PTSD, when evaluated in association with his education and occupational experience, has rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a higher rating of 70 percent, but no higher, for PTSD, have been met. 38 U.S.C. §§1110, 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.22, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Rating The Veteran contends he is entitled to a rating higher than 50 percent for his PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath at 594; See also 38 C.F.R. §§ 4.1, 4.2. The Veteran is seeking an increased rating for his service-connected PTSD, which is currently rated in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Code 9411 (2017) as 50 percent. A 70 percent evaluation is warranted when there is 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); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if 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; intermittent 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, own occupation, or own name. Id. Furthermore, as the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms [,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation ...requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio at 117-18; 38 C.F.R. § 4.130, DC 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 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). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency 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). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. In this case, VA records show that while the Veteran has problems getting along with people because of anger dyscontrol, he generally avoids any situation which might cause a potential for him to get angry and he spends much of his time alone. See April 2010 VA Treatment Records. The Veteran reported two episodes in which his family became alarmed with his behavior. Id. In one such episode, the Veteran grabbed his gun because someone was breaking into his car but he did not use it. Id. The Veteran reported nightmares and intrusive memories. Id. The Veteran appeared for his VA appointment alert, cooperative, with good eye contact and appropriate grooming. Id. The Veteran's speech was normal, his affect was appropriate and his mood was euthymic. Id. His thought processes were well organized and goal oriented. Id. He did not express any delusions, hallucinations, suicidal ideation, or homicidal ideation. Id. He reported he got along well with his wife. Id. The Veteran's judgment was intact. Id. The Veteran received a VA examination in October 2010. The Veteran reported he experienced recurring nightmares, the inability to sleep, and depression. See October 2010 VA Examination. The Veteran stated he angered easily and has difficulty with supervisors telling him what to do. Id. The Veteran did not exhibit any suicidal or homicidal ideations. Id. He related that he engages in limited family activities and does not engage in social activities with others. Id. At the October 2010 VA examination, the Veteran's appearance and hygiene were not appropriate and showed signs of neglect. Id. His behavior was appropriate but he had poor eye contact during the examination. Id. His exhibited a flattened affect and depressed mood. Id. Speech was within normal limits. Id. He reported no delusions and intermittent hallucinations. Id. After an in-person examination and review of the record, the examiner diagnosed the Veteran with PTSD and major depressive disorder. Id. The examiner opined the Veteran is unable to establish and maintain effective work, school and social relationships because the Veteran tended to withdraw and avoid interactions with others. Id. The examiner found the Veteran's psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although general he functioned satisfactorily with routine behavior, self-care, and normal conversation. Id. This opinion was supported by the Veteran's following symptoms: depressed mood, anxiety, chronic sleep impairment, and mild memory loss such as forgetting names, directions, or recent events. Id. In March 2011, VA treatment records showed the Veteran had PTSD with some nightmares and irritability. Upon examination the Veteran was alert and cooperative with good eye contact and appropriate grooming. See March 2011 VA Treatment Records. His speech was normal and affect was appropriate. Id. His mood was sad and he expressed no delusions, hallucinations, or suicidal or homicidal ideations. Id. His thought processes were well-organized and goal directed. Id. The Veteran's memory and judgement was intact. Id. VA treatment records in June 2011 showed the Veteran had a discharge diagnosis of PTSD with alcohol and cocaine dependence (in early remission) and nicotine dependence. The Veteran experienced nightmares, hallucinations, avoidance symptoms of crowds, clubs, people standing behind him, a startle response, amnestic spells, and anger dyscontrol. See June 2011 VA Treatment Records. The Veteran appeared dressed and groomed. Id. He was pleasant and cooperative with good eye contact. Id. The Veteran denied suicidal or homicidal ideations. Id. His mood was euthymic and affect was stable. Id. His insight and judgement were fair to good and cognition was intact. Id. VA Treatment Records from May 2012 through , September 2012, November 2012, February 2013, July 2013, March 2014, show the Veteran appeared casually groomed and of stated age. He was cooperative, polite, and had good eye contact. His speech was a normal rate, volume, prosody, tone, and fluent. The Veteran's thought process was logical and goal directed. He denied any hallucinations or suicidal or homicidal ideations. His judgement was good and intact. In May 2012, February 2013, and July 2013, the Veteran's affect was mildly euthymic with mildly constricted range. He had full affect range in September 2012 and November 2012. In March 2014, the Veteran's affect was euthymic, calm, and mildly constricted at times. See VA Treatment Records. In February 2013, the Veteran related he enjoyed being with family but could not handle crowds. See February 2013 VA Treatment Records. Crowds made him too anxious and nervous. Id. He stated that with medication his nightmares were not as often or intense. Id. They were down to two to three nights per week from three to five times per week. Id. He related he is sleeping better. Id. At the Board Hearing in July 2015, the Veteran stated he experiences nightmares and startles easily and takes medication to help with his nightmares. See Transcript of July 2015 Board Hearing at 10, 12. He stated he had been going to counseling for the prior 10 or 12 years. Id. at 11. He related that he currently lived with his wife, mother and other family. Id. at 16. A March 2016 PTSD screening test was negative for PTSD. See March 2016 VA Treatment Records. The Veteran related to a June 2016 private examiner that he has nightmares, trouble sleeping, and startles and angers easily. See June 2016 Private Treatment Record. He experiences auditory and visual hallucinations. Id. He also feels sometimes as if someone is grabbing him and there is nothing there. Id. The Veteran related he experienced suicidal ideations as recently as two months prior and homicidal ideations approximately two years prior. Id. After meeting with the Veteran on two separate occasions, the private examiner diagnosed the Veteran with PTSD, bi-polar disorder, and mild intellectual disability. Id. The examiner opined the Veteran's persistent symptoms of PTSD would serve as a distraction from work activities and make it difficult for him to focus on the demands of work. Id. The examiner stated the Veteran does not appear to be able to secure and/or maintain substantially gainful activity for the foreseeable future. Id. The Veteran was afforded a VA examination in May 2017. The VA examiner found no current diagnosis of PTSD and no occupational and social impairment as there was no mental disorder diagnosed. See May 2017 VA Examination. The Veteran related to the examiner that he suffers from nightmares all the time, is depressed, and feels lonely. Id. The Veteran related his energy was pretty good and he was appreciative of his family. Id. At the VA examination, the Veteran appeared cooperative, polite, and appropriate. Id. His affect was appropriate and speech was clear. Id. His thought process was coherent and goal oriented. Id. The Veteran had no delusions, illusions, hallucinations, or suicidal or homicidal ideations. Id. His memory, judgment, and insight were all intact. Id. After an in-person examination and extensive review of the record, the examiner found the Veteran did not meet the criteria for PTSD at the time of the examination. The above evidence shows that the Veteran's symptoms manifested with nightmares, sleep issues, and depression. The Veteran has repeatedly denied any suicidal or homicidal ideations except at the June 2016 private examination. Thus, there is evidence of occasional suicidal and homicidal ideations but the Veteran is not in persistent danger of hurting himself or others. He rarely experienced hallucinations as he denied experiencing such symptoms on numerous occasions except in June 2011 and in June 2016. Thus, he does not experience persistent delusions or hallucinations and he does not have disorientation to time or place. The Veteran appeared for his treatments casually groomed and of stated age except for once he was noted as having neglected his appearance and hygiene at an exam in October 2010. Thus, he only occasionally has neglect of personal appearance and hygiene. The Veteran has maintained a relationship with his family, including his wife, a son who lives with him, and his mother, who also lives with him so he retains the ability to establish and maintain some familial relationships. The October 2010 VA examiner opined that the Veteran is unable to establish and maintain effective work and social relationships because the Veteran tended to withdraw and avoid interactions with others. The June 2016 private examiner opined that the Veteran's persistent symptoms of PTSD would serve as a distraction from work activities and make it difficult for him to focus on the demands of work. The May 2017 VA examination and March 2016 PTSD screening test both found no diagnosis for PTSD for the Veteran, while the findings reported in the June 2016 private examination report are in stark contrast. The Board resolves all reasonable doubt in favor of the Veteran and finds that a 70 percent evaluation, but no higher, should be assigned throughout the entire appeal period. TDIU The Veteran contends that his service-connected PTSD renders him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017). Service connection for the time period on appeal was in effect for the PTSD, evaluated at 50 percent disabling; tinnitus, evaluated at 10 percent disabling; and bilateral hearing loss, rated as noncompensable. As the result of the Board's decision herein, the Veteran has been awarded a 70 percent rating for the entire appeal period. Thus, the Veteran meets the percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16 (a). An October 2010 VA examination stated the Veteran's PTSD symptoms affected the Veteran's employment due to his feeling threatened and unsafe in crowds. The Veteran related that he had not worked since 2005 when he was employed in the food service for 11 months. He asserted that his unemployment was due primarily to the effects of his mental condition and his difficulties with concentration and conflictual relationships with others. The examiner opined that the Veteran is unable to establish and maintain effective work relationships because the Veteran tended to withdraw and avoid interactions with others. At the July 2015 Board Hearing, the Veteran stated he worked at the NASA space center for a year or two after his discharge from service. See Transcript of July 2015 Board Hearing at 8. He stated he has trouble with jobs because he has trouble communicating with people because of his anger and not wanting people to tell him what to do. Id. at 9. He states anger and getting along with people are the main reasons why he has not been able to hold onto a job. Id. at 15. The June 2016 private examiner opined that the Veteran's persistent symptoms of PTSD would serve as a distraction from work activities and make it difficult for him to focus on the demands of work. The examiner stated the Veteran does not appear to be able to secure and/or maintain substantially gainful activity for the foreseeable future. At the May 2017 VA examination, the examiner noted the Veteran had not worked in about 20 years. Prior, the Veteran had done floor work and he stated he was getting a bit too old to be on the floor and did not get along with his co-workers. He did not like following instructions and had anger problems. The Veteran stated he did not look for another job since leaving his last employment since he did not feel comfortable around people. The Veteran worked from 1990 to 1992 as a cook for about 30 to 40 hours per week, making approximately $1000 a month. See January 2018 Veteran's Application for Increased Compensation based on Unemployability. He completed high school and received no other education or training before or after he became too disabled to work. Id. The Veteran stated he has not worked since the early 1990s. Id. Considering all evidence of record, the Board finds that the evidence is at least in equipoise that the Veteran has been precluded from gainful employment due to his service-connected PTSD when evaluated in association with his education and occupational experience. Therefore, the Board finds the Veteran is entitled to a TDIU. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating of 70 percent for posttraumatic stress disorder is granted for the entire appeal period, subject to the law and regulations governing the award of monetary benefits. Entitlement to a TDIU is granted for the entire appeal period, subject to the law and regulations governing the award of monetary benefits. ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs