Citation Nr: 19190045 Decision Date: 11/29/19 Archive Date: 11/29/19 DOCKET NO. 16-27 083 DATE: November 29, 2019 ORDER A disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. From August 29, 2012 to January 11, 2018, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s PTSD manifests as occupational and social impairment with deficiencies in most areas, such as work, judgment, thinking or mood. 2. From August 29, 2012 to January 11, 2018, the Veteran’s service-connected disorders alone precluded substantially gainful employment. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for a disability rating of 70 percent (but no higher) for service-connected PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. From August 29, 2012 to January 11, 2018, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Army from January 1968 to September 1969, including combat service in the Republic of Vietnam. His decorations include the Combat Infantryman Badge and the Bronze Star Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2013 rating decision. In April 2017, the Board denied an increased rating for PTSD. The Veteran, through his attorney, filed a motion to vacate this decision at the Board in June 2017. The Board agreed that the April 11, 2017 Board decision addressing the issue of entitlement to a disability rating greater than 50 percent for PTSD should be vacated. A new decision was issued in October 2017, which denied a disability rating greater than 50 percent for PTSD. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in a February 2019 order granting a joint motion for partial remand (JMPR). The issue is therefore again before the Board. The October 2017 decision also remanded a claim for TDIU for further development. In an April 2018 rating decision, the Regional Office (RO) granted entitlement to a TDIU, effective January 12, 2018. However, the issue of entitlement to a TDIU prior to January 12, 2018 remains in appellate status because the TDIU has not been assigned for the entire rating period on appeal. In November 2019 written argument, the Veteran’s attorney stated that if a 100 percent schedular for PTSD or a 70 percent schedular rating for PTSD with TDIU from August 29, 2012 to January 11, 2018, is granted, this would be considered a full grant of benefits sought on appeal. As this decision grants a 70 percent rating for the Veteran’s service-connected PTSD and also grants entitlement to TDIU from August 29, 2012 to January 11, 2018, the Board finds that the Veteran’s request has been satisfied. 1. Disability Rating for PTSD The Veteran contends that his PTSD symptoms have been at least 70 percent disabling since he filed his present claim for an increase which was received on August 29, 2012. 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; 38 C.F.R. § 4.1. Pursuant to the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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 evaluation is warranted where 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; obsessive rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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 evaluation is warranted where 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 symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. On VA PTSD examination in January 2013, the Veteran’s complaints included nightmares twice a week, flashbacks 4-5 times per month, panic attacks 4-5 times per month, and chronic sleep impairment. He had been married 42 years to his wife. He had a good relationship with his adult son and a “touchy” relationship with his adult daughter. He spent “the majority of his time reading, working out, and staying busy.” He liked hunting and fishing and had several close friends and neighbors. He had retired from [REDACTED] after working there for 39 years when he was eligible for retirement. He last saw a psychiatrist for mental health treatment in 2011 and was “no longer receiving prescriptions for psychiatric care.” He stopped drinking alcohol in 2011. He denied any suicidal or homicidal ideations or plans. He had no difficulty falling asleep and slept 6 hours per night with 2-3 awakenings per night. He woke up after experiencing nightmares, stayed up for 10-15 minutes, and then fell asleep again after 30 minutes. His flashbacks lasted about 2 minutes and his panic attacks “usually last 10-15 minutes.” He checked perimeters when he was up at night and “scans public areas for signs of danger.” Mental status examination of the Veteran showed panic attacks more than once a week, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. On private outpatient treatment with M. P. H., PhD., in August 2013, the Veteran’s complaints included hypervigilance, frequent dreams of his service in Vietnam, and an impaired memory. He also reported a “severe” fear of being trapped and chronic sleep impairment. Mental status examination of the Veteran showed he was neat, appropriate speech, full orientation, suspicious/defensive manner, impaired memory function, no delusions, disorganized thinking, or hallucinations, poor appetite, reported sleep disturbance, low energy level, and no suicidal or homicidal ideations. He still was married to his wife and worked for [REDACTED] until his retirement when his PTSD symptoms “increased dramatically.” He had a strained relationship with both of his adult children. In an undated letter which was received by VA in November 2013, a Vet Center employee stated that the Veteran was working “on developing ways of coping with chronic severe symptoms associated with” his service-connected PTSD. The Veteran reported that he was moody, had difficulty communicating, and often was angry. He also reported feeling depressed, anxious, panic attacks, having no friends, and memory loss and memory impairment. On VA outpatient treatment in September 2015, the Veteran’s complaints included sleep problems, intrusive thoughts, flashbacks, depression, and anxiety. “He presented with a positive mood even with all identified symptoms.” The assessment was that the Veteran’s PTSD remained chronic. In February 2016, the Veteran’s complaints included increased PTSD symptoms “with more frequent nightmares and getting trapped and dying. He reports increased paranoia and hypervigilance. He reports he is trying to stay active and busy and going to the gym.” In April 2016, the Veteran “reported he was very upset over an incident that had happened the day before” when he was walking in a residential neighborhood when a dog “charged him growling and barking.” He yelled at the dog and threatened to kill the dog. The Veteran also reported that he had been unable to sleep and experienced extreme anxiety since this incident. He was embarrassed that he had reacted this way in front of a friend with whom he was walking. The clinician stated that this reported event was a trigger for the Veteran’s increased PTSD symptoms. In a May 2016 letter, a Vet Center therapist stated that the Veteran reported experiencing symptoms of depression, anxiety, panic attacks, isolation, having no friends, and memory loss. It was also noted that he had homicidal thoughts without plan or intent. On VA outpatient treatment in June 2016, the Veteran reported “a significant increase specific to the frequency and intensity of PTSD symptomatology following his retirement” from [REDACTED]s in 2006. He also endorsed PTSD symptoms which “vacillate between a moderately severe to severe range.” Mental status examination of the Veteran showed full orientation, appropriately dressed, excellent hygiene and grooming, no evidence of mania, psychotic processes, or delusional ideations, and rational, relevant, and coherent thought processes. On private outpatient treatment with B.C., M.D., in January 2017, the Veteran’s complaints included ongoing anxiety, pacing, irritability, a preference for self-isolation, flashbacks, nightmares, and sleep problems. He reported that he still was married to his wife. He had a good relationship with his adult son and “struggles in his relationship with his adult daughter.” He “likes being alone outside such as when he is in a tree stand hunting.” He spent time with his wife and a friend who also had PTSD. Dr. B.C. disagreed with the findings on the January 2013 VA examination. The diagnoses included severe and chronic PTSD. As noted above, the evidence of record reflects that the Veteran had ongoing depression, feelings of anger, hopelessness and anxiety. “VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). As such, the Board finds that the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected PTSD, from August 29, 2012 Here, the evidence of record reflects symptoms and impairment indicative of a 70 percent rating. However, the evidence does not reflect that a 100 percent rating is warranted. Notably, during the evaluations note that the Veteran was oriented to time, place and person. He was cooperative and not delusional. The evidence did not demonstrate the presence of psychosis or gross impairment in thought processes or communication and the Veteran demonstrated consistent ability to perform activities of daily living. No clinician observed that the Veteran presented a persistent danger of hurting himself or others. Given the above, the Board finds that the evidence of record reflects occupational and social impairment that is less than total. As such, a higher 100 percent rating is not warranted for the Veteran’s service-connected PTSD. 2. Entitlement to TDIU prior to January 12, 2018 The Veteran contends that he has been unable to work throughout the rating appeal on appeal. As noted above, TDIU has been established from January 12, 2018. The Veteran’s increased rating claim for PTSD was filed on August 29, 2012, and therefore the Board must consider entitlement to TDIU from August 29, 2012 to January 11, 2018. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. 38 C.F.R. § 4.16(a). Service connection is currently in effect for: PTSD at 70 percent from August 29, 2012, per this decision; pancreatitis at 10 percent from July 2011 and from 30 percent from January 2018; tinnitus at 10 percent from March 2010 and hearing loss at a noncompensable rating from March 2010. Consequently, for the entire period on appeal from August 29, 2012, the Veteran meets the schedular criteria for TDIU as he has a rating of 70 percent for PTSD. In an October 2019 report, Dr. M. C., a private psychiatrist, opined that from 2006, the Veteran pursued an increasingly isolated life and was unable to work due to the severity of his PTSD. Dr. M. C. stated that the Veteran was an intelligent man who had many different capabilities, but after 2006 he was no longer able to translate them into prosocial functioning because of his mental illness. Discussion with the Veteran and review of the medical records indicated that the veteran was pulled into a “quicksand of emotional chaos” because of the combination of PTSD and a long history of an alcohol disorder and his responses to day-to-day situations were marred by these illnesses. Dr. M. C. felt that this caused the Veteran to be withdrawn with emotional lability and impaired social relationships. Dr. M. C. provided a thorough review of the Veteran’s psychiatric and medical history, to include a detailed summary of the pertinent evidence in the Veteran’s claims folder. While the Veteran’s PTSD disability picture does not meet the criteria for the highest rating of 100 percent under the schedular criteria, the Veteran maintains, and Board is persuaded, that he is unable to obtain and maintain substantially gainful employment due to his PTSD in combination with his other service-connected disabilities. Thus, the Board finds that a grant of TDIU is warranted from August 29, 2012 to January 11, 2018. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.