Citation Nr: 19123765 Decision Date: 04/01/19 Archive Date: 03/29/19 DOCKET NO. 14-00 055 DATE: April 1, 2019 ORDER Entitlement to a 100 percent rating for service-connected posttraumatic stress disorder (PTSD) effective May 31, 2016, but no earlier, is granted. During the entire period on appeal, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more nearly approximate total occupational and social impairment until May 31, 2016. 2. During the entire appeal period, the preponderance of the evidence is at least in equipoise that the Veteran’s service-connected PTSD rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. Effective May 31, 2016, but no earlier, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. Prior to May 9, 2018, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016 the Veteran testified at a Board video hearing held before the undersigned. A transcript of the hearing has been associated with the claims file. See Hearing Transcript, November 1, 2016. This claim was previously before the Board in October 2017 when it was remanded for further development. The Board notes that in an October 2018 rating decision, the RO increased the Veteran’s evaluation of PTSD from 30 percent disabling to 70 percent, effective December 27, 2011, the date of the claim, and further awarded an evaluation of 100 percent disabling for the Veteran’s PTSD from May 9, 2018. See Rating Decision-Narrative, October 22, 2018. As such, the issue now before the Board is a claim for entitlement to a disability rating in excess of 70 percent prior to May 9, 2018. The Board notes that the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in October 2012. See VA Form 21-8940, October 19, 2012. The RO denied his claim in an October 2013 rating decision. See Rating Decision, October 17, 2013. Due to the RO’s increase of the Veteran’s rating to 70 percent disabling, a claim for TDIU has reasonably been raised by the record, and shall be considered as part of the Veteran’s claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). 1. Entitlement to an increased rating in excess of 70 percent disabling for PTSD prior to May 9, 2018. The RO received the Veteran’s claim for an increased disability rating for his service-connected PTSD in December 2011. The Veteran asserts that he is entitled to a disability rating in excess of 70 percent prior to May 9, 2018. See Appellate Brief, January 1, 2019. As discussed above, due to the RO’s grant of a 100 percent rating from May 9, 2018, the Board will only address the Veteran’s assertion of a rating in excess of 70 percent prior to May 9, 2018. The Veteran asserts that his prescribed medication is ineffective, he has night terrors, and he has an inability to express his feelings. See Appellate Brief, January 2, 2019. Further, the Veteran contends that if he could express his feelings, he would be entitled to an increased disability rating for his service-connected PTSD. Id. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that after resolving the benefit of the doubt, the evidence is at least in equipoise that the Veteran’s PTSD symptoms more nearly approximated a disability rating of 100 percent effective May 31, 2016. Prior to May 31, 2016, the evidence of record reflects that the Veteran’s symptoms more nearly approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that more nearly approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. In February 2012, the Veteran was afforded a VA PTSD examination. See VA Examination, February 22, 2012. At the time of this examination, the Veteran was 66 years old, retired, and had been in a relationship for 7 years. Prior to this relationship, he had been married for 28 years before divorcing. Furthermore, he lived with his significant other. The Veteran spent most mornings with his brother at a local McDonalds. He also occupied his time with reading the newspaper and doing crossword puzzles. During his examination, the examiner found that the Veteran had mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by medication. Furthermore, the Veteran displayed symptoms of having a depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, suicidal ideation, and neglect of personal appearance and hygiene. The Veteran endorsed having initial and middle insomnia. He noted that he had nightmares with combat content, which varied in frequency and occurred up to three times a week. Further, he endorsed struggling with low self-esteem, low energy and motivation, and with feelings of hopelessness and helplessness. While he was noted to have passive suicidal thoughts, he denied suicidal ideation. He also denied anhedonia and feeling paranoid. He did, however, report to sometimes experiencing auditory and visual hallucinations. During his mental status exam, he was noted to be casually dressed and somewhat dishevelled. He was pleasant and cooperative, alert and oriented to person, place date and situation. He correctly identified the date of his examination, and he knew he was at the VA hospital. He described his mood as “about average,” with his affect noted to be broad. There was no overt evidence of psychosis, and his speech was appropriate. Furthermore, there was no tangentiality, circumstantiality, flight of ideas, or loosening of associations to the Veteran’s speech. His thought processes were noted to be linear and logical, there was no overt evidence of any cognitive deficits, and his insight and judgement were noted to be intact. The Veteran was afforded another VA examination in December 2012. See VA Examination, December 11, 2012. During this examination, the examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or work-like setting; and, neglect of personal appearance and hygiene. The Veteran further reported difficulty falling asleep and staying asleep, and averaging approximately 4 to 5 hours of sleep a night. He again endorsed nightmares with combat content occurring at least 3 to 4 times a week. He noted struggling with depression and feeling depressed for more days than he had over a 2-year period. He indicated that he struggled with low self-esteem, feelings of hopelessness and helplessness, low energy, and low motivation. He also noted struggling with anhedonia, depression, and weight fluctuation. He also endorsed feeling somewhat paranoid. During his mental status exam, he was casually dressed and somewhat dishevelled. He described his mood as “average depressed” and his affect was restricted. He denied suicidal ideation, as well as homicidal ideation. He was alert and oriented to person, place, date, and situation. There was no overt evidence of psychosis, and his speech was appropriate. In December 2013, the Veteran reported that he had problems memorizing names of family and friends, that at times he would forget to turn off stove burners when cooking, forget to take his medication, and forget to lock doors. See VA Form 21-4138, December 20, 2013. He reported having periods of wanting to hurt others, although he did not report ever doing so. Further, during periods of depression, he would sometimes leave home for lengthy periods of time. He also reported to having panic attacks 2 to 4 times a week, and to easily getting upset over little things. Regarding his hallucinations, the statement provided by the Veteran in December 2013 indicates that such occur when his sleep is interrupted at night. Further, the Veteran noted that when he goes out to eat, he must have his back to the walls, with no one behind him. The Veteran’s VA treatment records are largely absent for discussions of the severity of his PTSD until May 31, 2016. On that date, the Veteran called the suicide prevention hotline and reported suicidal and homicidal ideations, his belief that his medication was not working, and that his flashbacks were worsening. He had gotten into an argument with his brother and had thoughts of “eliminating” them. It was mentioned that he carried a weapon in his vehicle. He was admitted to the hospital for homicidal thoughts and was hospitalized for approximately 7 days. Because of his evidence of increased symptomatology, including a hospitalization for persistent homicidal thoughts, the Board concludes that the criteria for a 100 percent rating were met effective May 31, 2016, the day he called the suicide prevention hotline, but no earlier. Prior to May 31, 2016, treatment records, February 2012 VA examination, December 2012 VA examination, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating (suicidal ideation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting)), and symptoms associated with a 100 percent rating (hallucinations). He also had symptoms of low energy and low motivation, insomnia, nightmares with combat content, brief paranoia, and anhedonia. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more nearly approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. As noted in both his February 2012 and December 2012 examination, the Veteran only occasionally experienced auditory hallucinations, and sometimes, visual hallucinations. Further, his nightmares as well as his insomnia are similar to the symptom of chronic sleep impairment which is considered by a 30 percent rating. His difficulty in memorizing the names of family and friends, as well as forgetting to take his medication, lock doors, and turn of burners when cooking is similar to the impairment of short and long-term memory as contemplated by a 50 percent rating. Additionally, his panic attacks, depressive moods, and brief paranoia are similar to near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, which are contemplated by the assigned 70 percent rating. The Board notes that the Veteran reported having suicidal thoughts in the past, which is similar to persistent danger of self-harm, contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation did not rise to the level contemplated by the 100 percent disability rating; i.e. he was not shown to be a persistent danger to hurting himself. Although he reported passive suicidal thoughts in the past, the Veteran denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the February and December 2012 VA examinations. The Board also finds the level of impairment caused by the Veteran’s symptoms more nearly approximates the level associated with a 70 percent rating which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. Mental status examinations in VA treatment records and both the February and December 2012 VA examinations indicate the Veteran’s insight and judgment were intact. See VA Examination, February 22, 2012; see also VA Examination, December 11, 2012. Additionally, his social impairment was not such that he could not maintain relationships with others. As discussed above, at the time of his examinations, the Veteran was in a long-term relationship, and lived with this significant other. He also reported spending most mornings with his brother at a local McDonalds. Further, as provided by the Veteran in is December 2013 statement, while he liked to have his back to others, he could still go out to restaurants. Furthermore, both of his examinations found no overt evidence of any cognitive deficits, nor overt evidence of psychosis. He was alert, and oriented to person, place, date, and situation; and there was no tangentiality, circumstantiality, flight of ideas, or loosening of associations to his speech. While the Veteran did experience symptoms contemplated by a 100 percent rating, his hallucinations were not described or indicated to be persistent, and the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. The Board notes that the Veteran asserts that his prescribed medication is ineffective, there is a continuance of night terrors, and he lacks the ability to express his feelings. See Appellate Brief, January 2, 2019. Regarding the ineffectiveness of his prescribed medication, the evidence of record contradicts the Veteran’s assertion regarding the effectiveness of his prescribed medication. The record reflects that his medication was increased as necessary. Specifically, none of his VA treatment records or his VA examinations indicate his prescribed medication to be inappropriate or ineffective, with his latest VA medical visit on file determining his medication was appropriate. See CAPRI, October 16, 2018. Regarding the Veteran’s assertion of night terrors, the Board finds that such is similar to the Veteran’s claim of having nightmares, which are already considered in the Board’s analysis. Regarding the Veteran’s assertion of an inability to express his feelings, the Board finds that such is similar to the Veteran’s ability to maintain effective relationships as well as his social impairment, which is already considered in his 70 percent disability rating. Furthermore, while the Veteran argues an inability to express his feelings, the record does not support a finding that he suffers from gross impairment in his thought process or communication as contemplated by a 100 percent disability rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent rating are not met prior to May 31, 2016, and the appeal must be denied. 2. Entitlement to TDIU prior to May 9, 2018. Legal Criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate 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(a)(1), 4.15. “Substantially gainful” employment is employment that is “ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16(a); see also Moore, 1 Vet. App. at 358 (“The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment.”). A TDIU may be assigned if the schedular rating is less than total when it is found that the veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. See §§ 38 C.F.R. 3.340, 3.341, 4.16(a). If there is only one such service-connected disability, it must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Id. Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). The Veteran has been assigned a 70 percent rating for his PTSD effective December 27, 2011. As that assigned rating was granted in large part on the impact of the Veteran’s PTSD on his ability to maintain employment, the Board will resolve any reasonable doubt and grant TDIU effective that date. Effective May 31, 2016, the date the 100 percent rating is assigned for PTSD, TDIU is moot. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Onyeozili, Law Clerk