Citation Nr: 19166340 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 18-47 550 DATE: August 27, 2019 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. Total social impairment is not shown due to PTSD. 2. It is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for Entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.16, 4.2. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1969 to May 1973 and from August 10, 1979, to August 28, 1979. He served on active duty in the Republic of Vietnam during which service he received the Combat Action Ribbon. 1. Entitlement to an increased rating in excess of 70 percent for PTSD Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. The Veteran contends that a psychiatric disability warrants a higher rating than 70 percent. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a schedular rating of 100 percent. The Board finds that the Veteran’s symptoms and level of impairment more closely approximated those symptoms and level of impairment associated with a 70 percent rating. PTSD is rated using the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. A 70 percent rating is assigned when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to 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. A 100 percent rating is assigned when there is cause 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; or memory loss for names of close relatives, own occupation or own name. The symptoms listed in the General Rating Formula are examples, not an exhaustive list, and it is not required to find the presence of all, most, or even some of the enumerated symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate rating to be assigned for a service-connected mental disorder, the focus is on how the frequency, severity, and duration of the symptoms affect the Veteran’s occupational and social impairment, rather than on the presence or absence of particular symptoms listed in the schedular criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). On VA examination in May 2018, the examiner diagnosed chronic PTSD. The examiner indicated that the Veteran had a constricted affect, made good eye contact, and was alert, fully oriented, cooperative. The Veteran had no suicidal or homicidal ideation. He displayed mild anxiety. The Veteran indicated that he stayed in touch with his son and father. He reported having been fired from a few jobs in the past because he lost his temper and got in trouble with his superior and fellow worker. The examiner stated that the Veteran’s level of occupational and social impairment due to the psychiatric disabilities was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a May 2018 statement in support of claim, the Veteran stated that since returning from Vietnam his “nightmares and dreams became worse and he could not keep a job or relationship” and that he did not want to be around anyone. He also stated that “all these years after returning from the Vietnam War, I feel upset by things that remind me of what happened, feel numb or losing interest in things I used to care about, feeling irritated or having angry outbursts, have problems sleeping and concentrating.” The Veteran received a mental health assessment at VA in June 2018. Treatment notes indicate that the Veteran expressed a desire to restart treatment for PTSD. The notes indicate that the Veteran experienced a lack of interest or pleasure in activities, sleep disturbance, feelings of depression, trouble concentrating, and feelings of failure and guilt. On VA examination in May 2019, the examiner diagnosed PTSD. The examiner indicated that the Veteran’s level of occupational and social impairment due to psychiatric disabilities was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran indicated that he had received psychotherapy on three occasions in 2018 at VA and denied being treated with medication for PTSD since the last examination in May 2018. He denied drinking alcohol in the past year and smoked marijuana six times in the past year, stating that it helped with anxiety and sleep. The Veteran indicated he had no friends, had not talked to his two children in the past year, lived alone, and stayed home most of the time. He reported talking to his sister by phone a few times each week. The examiner found the Veteran to be “pleasant, engaged and responsive to questions asked.” He was fully oriented “with logical and linear thought processes. There were no signs of hallucinations or delusions.” The examiner noted that the Veteran experienced depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, and near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. Chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships were also found. The report additionally noted that the Veteran indicated difficulty in adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. The Board finds that the Veteran fully meets the criteria for a rating of 70 percent, but that a rating in excess of 70 percent is not warranted. The Board notes that a 100 percent rating is provided 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; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. The May 2018 VA examiner summarized the Veteran’s level of impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The May 2019 VA examiner summarized the Veteran’s psychiatric symptoms as comprising as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Those summaries, as provided by the VA examiners, are indicative of the symptomatology contemplated by a 70 percent, and no higher, rating for the service-connected PTSD. The Board finds that the findings of medical professionals do not show total occupation or social impairment or deficiencies in most areas, as required for a 100 percent or higher rating. The conclusions of the VA examiners are particularly highly probative, as the examiners both reviewed the record and conducted a thorough interview and examination of the Veteran. Neither examiner found total social impairment as is required to assign a schedular rating of 100 percent. Consequently, the Board finds that the preponderance of the evidence is against the claim for a higher rating. The Board finds that the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. The Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. The evidence does not indicate that the Veteran is totally socially impaired as required under the criteria for a 100 percent rating. The Board finds that the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms results in the level of impairment required for a 100 percent rating for a psychiatric disability as the evidence shows that some social contacts remain and the examiners did not find total social impairment.. As the criteria for a 100 percent rating are not met, the appeal must be denied. Considering the record as a whole, the Veteran’s disability has not shown to manifest to the severity required for the next higher rating of 70 percent. Consequently, as the preponderance of the evidence is against the claim for a higher rating, the claim for an increased rating must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. 2. Entitlement to TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and a combined rating of 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities make him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). The Veteran asserts that the service-connected disabilities make him unable to secure and follow any form of substantially gainful employment. The Veteran has established service connection for PTSD, rated 70 percent, and coronary artery disease, rated 10 percent. The combined service-connected disability rating is 70 percent. Therefore, the Veteran’s service-connected disabilities meet the percentage requirements for consideration of the assignment of TDIU. 38 C.F.R. § 4.16(a). The question that remains is whether the service-connected PTSD and coronary artery disease preclude the Veteran from obtaining or retaining substantially gainful employment. 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). On VA Form 21-8940 submitted in October 2016 the Veteran reported having last worked in 2013 and having “left jobs, having nightmares, flashbacks of Vietnam.” He indicated that he had two years of high school education. Additionally, on a VA Form 21-4138 received in April 2019, the Veteran reported that he “could not keep a job” after returning from Vietnam. A June 2018 VA evaluation indicated that the Veteran reported that his anxiety symptoms made it extremely difficult to do his work, take care of things at home, or get along with others. On VA examination in May 2019, the Veteran indicated symptomatology including near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; disturbances 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; an inability to establish and maintain effective relationships. Although the examiner noted “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood,” an occupational assessment was not performed. Taken as a whole, the evidence is at least in equipoise regarding whether the Veteran would be able to function in any occupational setting due to his service-connected PTSD, as demonstrated by the evidence. The evidence shows that he has been unable to maintain employment, in large part due to PTSD symptoms. Accordingly, the Board will resolve reasonable doubt in favor of the Veteran and find that entitlement to TDIU is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Duke, Associate 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.