Citation Nr: 19123760 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 16-33 975 DATE: March 29, 2019 ORDER Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) to 70% is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s PTSD is productive of occupational and social impairment with deficiencies in most areas but not total occupational and social impairment. 2. The Veteran’s service-connected PTSD render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1967. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). In March 2019, the Veteran testified before the undersigned at a videoconference hearing. The transcript from the hearing has not yet been associated with the file, as the case is being granted under the Board’s “One Touch” program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. Entitlement to a rating in excess of 50 percent for PTSD The Veteran is seeking entitlement to an increased disability rating for his service-connected PTSD and contends that he is entitled to an evaluation in excess of 50 percent. After a thorough review of the evidence of record, the Board agrees and finds that a rating of 70 percent, and no greater, is warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s service-connected PTSD has been rated under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders. In particular, this Diagnostic Code authorizes compensable ratings of 10, 30, 50, 70, and 100 percent. Ratings are assigned according to the manifestation of particular symptoms. Under Diagnostic Code 9411, a 50 percent rating is warranted where there is evidence of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for 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 inability to establish and maintain effective relationships. Id. The next and highest 100 percent rating is warranted for a mental disorder 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; and memory loss for names of close relatives, own occupation or own name. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002). Based on the evidence of record and upon resolution of reasonable doubt in favor of the Veteran, the Board finds that a rating of 70 percent, and no greater, is warranted. The Veteran was afforded a VA examination in May 2016. The examiner noted a depressed mood, anxiety and chronic sleep impairment. The Veteran denied suicidal ideation. The examiner opined that the Veteran has occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. However, more recent treatment records indicate a worsening of the Veteran’s psychiatric symptoms. In approximately May 2018, records show that the Veteran was in the midst of a psychiatric committal and received in-patient care in a psychiatric facility. Documents show the committal was related to persistent suicidal ideation. At his March 2019 hearing, the Veteran testified that he was not fully forthcoming to the May 2016 examiner and other providers regarding his suicidal ideation out of fear of a possible legal repercussions, including psychiatric involuntary committal. This is confirmed by records during the Veteran’s in-patient psychiatric stay in May 2018 noting that he has had “chronic suicidal ideation for years” and that he “appeared ready to complete” at that time. See 2018 treatment records from Emerald Coast Behavioral Hospital. Based on the above the Board finds that an increased rating, not in excess of 70 percent, is warranted. The evidence of record shows that the Veteran has suicidal ideation in addition to his anxiety, chronic sleep impairment, depressed mood and reported social difficulties. A higher, 100 percent rating is not warranted. The evidence of record does not indicate the Veteran has gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living. The Veteran’s own statements to the undersigned would not support such a finding. The Veteran has not shown that his condition warrants the 100% schedular evaluation. Because the preponderance of the evidence is against a finding of total social impairment for the entire period on appeal, a 100 percent rating is not warranted. Entitlement to a TDIU Under VA regulations, a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it shall be ratable at 60 percent or more, and 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 disability or more. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. As noted above, the Veteran is not in receipt of service connection for PTSD at 70 percent. The Veteran therefore meets the schedular requirements for a TDIU. The Veteran reported not having worked for more than three decades. Before that time, he was an appliance repairman and a horse groomer. In terms of education, the Veteran has general education diploma (GED). During his time in service he had training in meteorology, however it does not appear that the Veteran has utilized those skills since separation. The Veteran reported not being able to work and having serious difficulties being around other people. VA regulations provide that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App at 53 (1990). While there may be other factors involved in the Veteran’s failure to stay employed, the Veteran’s PTSD can not be disregarded as the primary problem. Considering the impact of his significant mental disability and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disability. (Continued on the next page)   Accordingly, the Veteran meets the criteria for an award of TDIU. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The RO will assign an effective date for the TDIU award when it effectuates this decision. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victor Woehlke, Associate Counsel