Citation Nr: 18129455 Decision Date: 08/27/18 Archive Date: 08/24/18 DOCKET NO. 16-40 942 DATE: August 27, 2018 ORDER The claim of entitlement to an initial evaluation of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, throughout the period on appeal, the Veteran’s PTSD has manifested with symptoms most closely approximating occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; the evidence does not reflect total occupational and social impairment. 2. Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities render him unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial evaluation of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.130 (2018). 2. The criteria for establishing entitlement to TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from August 1964 to October 1975 and service with the Air National Guard from April 1987 to February 1989. 1. The claim of entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to an initial evaluation in excess of 50 percent for PTSD. Disability ratings are determined by application of a rating schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret 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. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. 38 C.F.R. § 4.10. Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran’s PTSD is rated under Diagnostic Code 9411, 38 C.F.R. § 4.130. 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; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating 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 an inability to establish and maintain effective relationships. Id. 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. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In the Veteran’s February 2015 VA examination, the Veteran was diagnosed with PTSD and depression. The examiner concluded that the PTSD caused the Veteran’s depression. Symptoms attributable to PTSD included: nightmares, flashbacks, insomnia, irritability, anger, avoidance of trauma triggers, avoidance of activity triggers, and hypervigilance. The Veteran’s depression manifested with symptoms of dysphoria, anhedonia, insomnia, low concentration, appetite loss, feelings of helplessness, hopelessness and worthlessness. The Veteran had been married three times. His first two marriages negatively impacted by his anger and frequent arguments. The Veteran was reportedly very controlling with his first two wives. His behavior was reportedly worse in his third marriage, and he does not socialize with his wife except for during dinner or lunch. The Veteran underwent therapy and utilized medication in order to try to control his anger. He reportedly had only two good friends, and did not engage in many activities outside of attending church. In February 2015, the Veteran’s VA treatment records reflect passive thoughts of death and dying, but with no specific plan or intent. The Veteran reportedly experienced these thoughts for the previous twenty years. In February 2015, the Veteran’s VA treatment records reflect ongoing suicidal ideation but with full orientation and memory. In April 2015, the Veteran underwent a private psychological evaluation. His diagnoses of depression and PTSD were confirmed. The psychologist reported that he experienced symptoms of irritability, anhedonia, feelings of hopelessness, sleep disturbance, low mood, and thoughts of death. In June 2015, VA treatment records reflect ongoing moderately severe depression. The Veteran reported ongoing anxiety in crowds, as well as suicidal ideation without plan or intent. In a September 2016 statement, the Veteran relayed worsening symptomatology associated with his PTSD and depression since discharge from service. He quit his teaching position due to his inability to control his anger issues, and stopped his full-time volunteer position at his church when leaving the house became too stressful. In 2016, he reportedly stopped attending weekly church services, even with the congregation consisting of only 5 people, two of whom were relatives. The Veteran endorsed extremely limited interactions with his wife due to his anger issues and inability to control his temper. He also experienced nightmares and chronic sleep impairment. In a typical week, the Veteran only left the house once. He tended to avoid places with crowds, and he had a tendency to panic when he became too anxious. Thoughts of suicide occurred on a weekly or daily basis. The Veteran was reportedly also always “on guard” in his house. He felt as if he might be attacked, and kept the blinds down. The Veteran only trusted his close family. In September 2017, the Veteran underwent another VA examination to assess the nature and severity of his PTSD. The Veteran reported feelings of detachment from others, suspiciousness, feelings of guilt, nightmares and striking his wife in his sleep. He avoided crowds, and was triggered by war movies or themes. He experienced hyperarousal symptoms and intrusive memories. The Veteran also had a depressed mood, lack of motivation and energy, low self-esteem and anhedonia. Overall, the examiner found symptoms of: depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and suicidal ideation. The Veteran was neatly groomed and casually dressed, with unremarkable psychomotor activity and clear, coherent, and spontaneous speech. He had a cooperative attitude and affect was appropriate. The Veteran’s attention was intact, and he was oriented properly to person, time, and place. His thought process and content were unremarkable with no evidence of delusions, hallucinations, inappropriate behavior, obsessive or ritualistic behavior, or lack of judgment or insight. He denied having panic attacks. He denied homicidal thoughts and endorsed passive suicidal thoughts with no plan or intent. Impulse control was evaluated as good, with no episodes of physical violence. Memory was grossly assessed as normal, except for reported mild impairment of immediate memory. Passive suicidal ideation was reported nearly every day. The examiner believed that the Veteran should be considered an increased, but not current imminent risk, of suicide. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran’s symptoms most closely approximate those of the assigned 70 percent rating throughout the period on appeal. See Mauerhan, 16 Vet. App. at 442-43. As noted by VA examinations, the Veteran experiences symptoms including: depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and suicidal ideation. The Veteran has also consistently been found to be hypervigilant and socially withdrawn with frequent conflict with his wife. He reports only limited social activities as the anxiety related to leaving the house has become too overwhelming over the years. Taken together, these ongoing symptoms most closely resemble occupational and social impairment in most areas. The Veteran has not, however, demonstrated functioning analogous to a 100 percent evaluation. A 100 percent evaluation requires total occupational and social impairment with symptoms of similar severity to persistent delusions or hallucinations, gross impairment in thought or communication, and the loss of memories such as names of close relatives or himself. While the Veteran exhibits serious symptoms related to his PTSD, his mental faculties remain intact, and he has been consistently oriented. Treatment records have not shown that the Veteran is unable to care for himself. Although the record reflects that he has difficulty with his social relationships, he continues to be married and to have some friends, demonstrating that total social impairment does not exist. Therefore, the frequency, duration, and severity of the Veteran’s PTSD symptoms throughout the period on appeal, do not more nearly approximate total occupational and social impairment. In sum, the Veteran’s demonstrated symptomatology is analogous to that of the 70 percent evaluation. An evaluation in excess of 70 percent is not warranted throughout the period on appeal. 2. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran contends that he is entitled to a grant of TDIU benefits. After a thorough review of the medical and lay evidence of record, the Board finds that TDIU benefits are warranted. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, 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 (2018). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In the present case, the Veteran is service-connected for PTSD (70 percent), hypertension (noncompensable), and status post squamous cell carcinoma excision (noncompensable). The Veteran’s combined evaluation is 70 percent. As such, the Veteran has satisfied the schedular criteria for TDIU. See Id. The Board must now turn its attention as to whether the Veteran’s service-connected disabilities do in fact render him unable to obtain or maintain a substantially gainful occupation. The Veteran reported completing high school and obtaining a bachelor’s degree in business administration following retirement from service. His reported history includes volunteering with his church, teaching, and selling insurance. In January 2016, the Veteran’s representative submitted an opinion from a vocational consultant and case manager regarding the Veteran’s functional impairment. The counselor reported that an individual who has an inability to establish and maintain effective relationships is unable to follow any substantially gainful occupation. Substantially gainful employment requires that a worker be able to interaction with his supervisor and other coworkers, even if he does not routinely work with them. He must be able to take instruction, evaluation and criticism as a part of employment. One who is unable to establish and maintain effective relationships is unable to follow any substantially gainful occupation is incapable of meeting even these basic demands of employment. In September 2016, the Veteran’s attorney reported in his Decision Review Officer hearing that he was unable to be away from home for eight hours per day. While he occasionally left the house to attend church, these activities were few and far between, and typically involved only a small number of people with whom the Veteran was familiar. In a subsequent September 2016 statement, the Veteran detailed the impact his PTSD and depression had on his career following discharge from active duty. The Veteran reported that he could no longer work beginning in 2007 due to difficulty controlling his anger. This was particularly pronounced as he was a high school teacher, and had challenging interactions with students each day. When he left the teaching position in 2007, he returned to volunteering at his church full time. By 2013, the Veteran needed to reduce his volunteer hours, and by 2014, he stopped volunteering entirely as he found being away from home too difficult. By May 2016, he reportedly stopped attending services entirely. The Veteran also discussed his difficult interactions with his wife, finding that he would grow irritable and angry if he spent too much time with her. He preferred isolation, spending his days watching television or playing video games to distract from more disturbing memories. He left his house, on average, once per week, and avoided locations with crowds. The Veteran reportedly does not trust other people. His social isolation and anxiety purportedly prevented him from regular attendance outside of the house, and he felt uncomfortable with the concept of working with supervisors and other employees due to his anger control issues. He reported difficulty adapting to changes, and coping with stress. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds the service-connected disabilities have rendered the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background throughout the period of the claim. The Veteran’s reports of his occupational history are competent and consistent with additional information associated with the claims file. The Veteran’s VA examinations and VA treatment records consistently reflect symptoms of social isolation and avoidance with increasing severity over time. He has consistently expressed difficulties interacting with other people, including his own wives over the years, primarily as a consequence of his anger and control issues. Instead, the Veteran’s records reflect increasing isolation and anxiety when he is away from home. Specifically, in his September 2017 examination, the examiner determined that the Veteran’s PTSD manifested with symptoms including: near-continuous panic or depression affecting the ability to function independently, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and an inability to establish and maintain effective relationships. As endorsed by the January 2016 vocational report, those who cannot establish and maintain effective work and social relationships may be precluded from substantially gainful employment. This conclusion is supported by the Veteran’s reported work history as reflected in his own statements as well as his VA records. The Board acknowledges that the individual VA examiners have not found that his PTSD presents a total occupational and social impairment. However, the Board notes these opinions do not specifically address the level of the Veteran’s functional impairment alone, nor do they consider his educational and occupational history. The entirety of the Veteran’s post-service occupations history required him to interact with other people, from teenagers to adult parishioners at his church. Such interactions cause the Veteran significant distress, particularly as highlighted in his most recent VA examination, and he has isolated himself from most interpersonal interactions, including with his own wife, due to these symptoms. In sum, the Board is satisfied that the Veteran’s PTSD been sufficiently severe throughout the period of the claim as to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. Accordingly, TDIU is warranted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel