Citation Nr: 18129488 Decision Date: 08/27/18 Archive Date: 08/24/18 DOCKET NO. 14-34 556A DATE: August 27, 2018 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total rating based on individual unemployability (TDIU) prior to February 28, 2018 is granted. FINDINGS OF FACT 1. The Veteran’s PTSD has not approximated total occupational or social impairment at any point during the appeal period. 2. Prior to February 28, 2018, the Veteran’s service-connected PTSD has precluded him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.16, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. Prior to February 28, 2018, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from January 1964 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2014 rating decision, the RO awarded an increased 70 percent evaluation for the Veteran’s PTSD for the entire appeal period. In a February 2018 rating decision, the RO continued the 70 percent rating and also awarded TDIU effective February 28, 2018. As this adjudication did not award the maximum benefit allowed under VA law and regulations, the claims remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In February 2018, the Veteran and his spouse testified at a hearing before the undersigned Veterans’ Law Judge (VLJ); a transcript is of record. 1. Entitlement to an initial rating in excess of 70 percent for PTSD. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; 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 rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder’s primary focus in determining the level of occupational and social impairment. Vazquez-Claudio, 713 F.3d at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Vazquez-Claudio, 713 F.3d at 117. Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio, 713 F.3d at 115; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the Board finds that the Veteran suffers from symptoms of similar severity, frequency, and duration that cause occupational and social impairment equivalent to that which would be produced by the specific symptoms enumerated in the rating criteria, then the appropriate equivalent rating will be assigned. 38 C.F.R. 4.21; Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. The Veteran seeks an initial rating in excess of 70 percent for his PTSD. For the reasons that follow, the board finds that a higher rating is not warranted. The Veteran underwent a fee-based VA psychiatric examination in September 2013. The Veteran reported that he was married, had four children, and had a good relationship with his parents and siblings. He also reported past thoughts of suicide without intent and denied a history of violence. The Veteran noted that he last worked in 1987 due to a back injury. The examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment; flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The examiner determined that the Veteran posed no threat of danger or injury to self or others and was hypervigilant. The examiner reported that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported in his December 2013 notice of disagreement that he had trouble dealing with everyday life. He had nightmares and fears of everything, had trouble leaving his home, and felt isolated. In the Veteran’s October 2014 substantive appeal, he further reported that he needs to be medicated before he leaves his house so he does not hurt anyone. The Veteran has received VA treatment for his PTSD. VA treatment records generally show that the Veteran has denied hallucinations and has not posed a risk to himself or other. He has denied suicidal ideations. His insight and judgment have been intact and he has been observed to be neatly dressed and groomed. In an August 2014 VA treatment record, the Veteran reported that he enjoys being with his family and babysitting his multiple grandchildren. He also reported that he became angry with a girl in a store, felt like hitting her, and had to leave to “be safe.” The Veteran was diagnosed with major depressive disorder in an October 2017 VA treatment record. An April 2017 VA treatment record shows that the Veteran felt homicidal while on certain medicine, but once he discontinued its use, those feelings went away. He also reported impaired short-term memory. A January 2018 VA treatment record shows that the Veteran was hypervigilant and could not tolerate to be around people. The Veteran reported that even when his family visits, he will go to his bedroom and shut the door. Private treatment records from 2016 to 2018 generally show that the Veteran has been oriented to time and place. His recent and remote memory was intact, and his judgment and insight was normal with normal attention span and concentration. A January 2016 private treatment record shows the Veteran reported anxiety, depression, suicidal thoughts, and stress, but he denied nervousness, sadness, and hallucinations. At the February 2018 hearing, the Veteran testified that he has a good relationship with his wife and children, but has no friends. The Veteran explained that he lives in his bedroom and stays in there 24/7. The Veteran’s spouse testified that while the Veteran will spend time with her in the living room, as soon as someone enters the house, he will go to his bedroom and lock the door. She also testified that the Veteran did not like to be left alone and will go with her when she leaves the house, but he will stay in the car with the doors locked. The Veteran also contended that without his medication, he is suicidal and wants to hurt others, but he has not carried out his thoughts. The Veteran has been addressing his suicidal ideations with his psychiatrist. The Veteran explained that his typical day consists of getting dressed and watching television. The Veteran also describes his memory as “really bad.” The Veteran’s representative contended that the Veteran does not take care of himself on a normal basis as far as dressing, showering, and brushing his teeth. The Veteran underwent a fee-based VA examination in April 2018. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting his ability to function independently, appropriately, and effectively; mild memory loss; impairment of short and long term memory; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. The examiner also noted that the Veteran’s speech was impoverished with decreased rate, rhythm, and tone. The Veteran also exhibited mild psychomotor retardation and did not appear to pose any threat of danger to himself or others. The examiner reported that the Veteran has occupational and social impairment with deficiencies in most areas. The examiner also reported that it was not possible to differentiate what symptoms are attributable to the Veteran’s PTSD and which are attributable to his nonservice-connected major depressive disorder because PTSD frequently leads to various depressive disorders, and their symptoms frequently overlap. The examiner also opined that the Veteran’s PTSD and depressive disorder symptoms are moderate to severe, and chronic. Based on a review of all of the evidence of record, the Board finds that the Veteran’s current 70 percent rating for PTSD is appropriate. The evaluation of mental health disorders is ultimately based on the degree of occupational and social impairment; however, this determination is symptom-driven. In that regard, the Veteran’s PTSD has manifested with symptoms that fall within a range of 30 percent to 70 percent disabling, as identified by the rating criteria. Consistent with the lower end of that range, the Veteran has endorsed symptoms of depressed mood, anxiety, suspiciousness, hypervigilance, and chronic sleep impairment. The symptoms he endorses which would approximate a 50 percent rating include flattened affect, panic attacks more than once a week, disturbance of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in understanding complex commands, and impairment of short and long term memory. The symptoms he endorses which more closely approximate a 70 percent rating include difficulty adapting to stressful circumstances, suicidal ideations, inability to establish and maintain effective relationships, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and neglect of personal appearance and hygiene. Also, to the extent that some of his symptoms overall may be due to nonservice-connected depressive disorder, the 2018 VA examiner opined that the symptoms cannot be separated from his PTSD. Thus, they are all attributed to the service-connected PTSD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Veteran’s PTSD has not more nearly approximated the criteria corresponding to a total 100 percent rating. In reviewing the symptoms that could approximate such a rating, the Board finds the Veteran does not experience gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The VA and private medical records generally show that he has been oriented to time and place. Findings of gross impairment in thought processes or communication or grossly inappropriate behavior, have not been noted. The Veteran was able to communicate effectively during his hearing before the undersigned and provide testimony as to his symptoms and treatment. Also, the 2013 and 2018 VA examiners determined that total social and occupational impairment has not been shown. Each examiner acknowledged that occupational functioning was present, but indicated that the severity of such impairment was less than total. The Board acknowledges the Veteran’s assertions that he has had thoughts of harming himself and others at times. However, the Board finds that he is not a persistent danger to himself or others because clinicians with expertise in the field of mental health disorders have not found him to be a persistent danger, and despite intermittent feelings of wanting to harm himself or others- he has never acted on his feelings. At the September 2013 examination, the examiner determined that the Veteran posed no threat of danger or injury to self or others. This assessment was echoed by the 2018 VA examiner as well. Finally, while the Veteran and his spouse credibly report that the Veteran has no friends and will isolate himself when there are visitors at his home, the Board note that he has still been able to maintain a good relationship with his wife, children, and grandchildren; spends time with his wife, and is able to leave the house with her. Also, an August 2014 VA treatment record shows the Veteran was entrusted to babysit his multiple grandchildren, thus further demonstrating an ability to interact with others socially. As such, the Board does not find the Veteran to exhibit total social impairment. There is no doubt to be resolved; the Veteran’s PTSD does not more nearly approximate total social or occupational impairment. A total, 100 percent rating is not warranted. The Board has considered the applicability of staged ratings. The Veteran’s PTSD has been rated 70 percent disabling for the entire appeal period. This is the second highest rating available for mental health disorders, and at no point during the appeal period has his PTSD more nearly approximated the criteria for a total, 100 percent rating. Accordingly, the use of staged ratings is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). In sum, the Veteran’s PTSD warrants a 70 percent rating, but no higher, for the entire appeal period. As this is his current evaluation, the claim for an increased rating is denied. 2. Entitlement to TDIU prior to February 2018. The Veteran seeks entitlement to a TDIU. His claim was implicitly raised by the record and is considered part-and-parcel of the higher initial rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). In a February 2018 rating decision, the RO granted entitlement to a TDIU effective February 28, 2018. Therefore, from that date forward, the claim is moot. However, because the claim for a TDIU is part-and-parcel of the higher rating claim on appeal, consideration must still be given to whether a TDIU is warranted prior to February 28, 2018. Total disability ratings for compensation may be assigned when a veteran is unable to secure and 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.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran is service-connected for PTSD which is at rated 70 percent effective from August 31, 2012. As such, he meets the schedular criteria for a TDIU from August 31, 2012. The Veteran contends that he became unable to work in 1982. See February 2011 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940); February 2018 Request for Employment Information in Connection with Claim for Disability Benefits. Records from SSA show that the Veteran reported he became unable to work in 1987. Despite the discrepancy in dates, it is clear the Veteran contends he became unable to work in the 1980’s. The evidence shows that the Veteran only completed high school. See December 2006 SSA Decision. With regards to the Veteran’s prior work history, he was a bus driver, restaurant chef, and security guard. He also was a deli clerk at a grocery warehouse from 1978 to 1982. A December 2006 SSA determination found the Veteran was disabled due to nonservice-connected disabilities, including a back disability, carpel tunnel syndrome, a shoulder disability, a heart disability, hypertension, and stomach problems. At a September 2013 fee-based VA examination, the examiner reported that the Veteran had depressed mood, anxiety, suspiciousness, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a worklike setting), inability to establish and maintain effective relationships, and irritability. The examiner indicated that the PTSD would cause occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. VA treatment records show that the Veteran has difficulty in social settings. An August 2014 record shows that the Veteran reported he was angry with a girl at a store, felt like hitting her, and had to leave in order to “be safe.” A January 2018 record shows that the Veteran reported he could not tolerate being around people due to his PTSD. Based on a review of all of the evidence of record, and resolving reasonable doubt in the Veteran’s favor, his service-connected PTSD would reasonably preclude him from securing and maintaining substantially gainful employment consistent with his education and work experience prior to February 28, 2018. The Veteran’s prior work history includes positions that likely include a significant level of interaction with other individuals, including customers and coworkers. The Board finds it reasonable to believe that his PTSD and related psychiatric symptoms including depression, anxiety, irritability, and thoughts of hurting others would reasonably result in significant difficulty functioning in an occupational environment consistent with his past employment because these symptoms, and his difficulty interacting with others, would likely negatively impact interactions with customers, coworkers, and supervisors. He also has no more than a high school education which reasonably limits his ability to be able to obtain and maintain gainful employment in a more suitable environment considering his PTSD symptoms. The Board is mindful that the SSA determined that the Veteran was not disabled due to his psychiatric condition. However, the SSA determination is pertinent, but not controlling for VA determinations. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). Resolving all reasonable doubt in the Veteran’s favor, the criteria for TDIU prior to February 28, 2018 is warranted. Accordingly, the claim for TDIU is granted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel