Citation Nr: 20004155 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-32 549 DATE: January 16, 2020 ORDER An initial rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s PTSD were productive of occupational and social impairment with reduced reliability and productivity. 2. The Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9411. 2. The criteria for a total rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to September 1970. He has been awarded the Combat Infantryman Badge and the Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD and assigned an initial 30 percent rating, effective May 15, 2015. In May 2018, the Veteran filed a claim for a TDIU. See 05/11/2018, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A claim for a TDIU is part of an increased disability rating claim when such claim is raised by the record; and that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. See e.g., Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the Board has jurisdiction of the TDIU matter. 1. A rating in excess of 30 percent for PTSD Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under Diagnostic Code 9411, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50-percent evaluation will be assigned for a mental disorder which produces 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. A 70-percent evaluation applies when a veteran’s occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. A 100-percent rating is assigned 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. The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that “the presence of all, most, or even some, of the enumerated symptoms” is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, “VA must engage in a holistic analysis” of the severity, frequency, and duration of the signs and symptoms of the veteran’s mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Veteran seeks a higher rating for his service-connected PTSD, which is currently rated as 30 percent disabling. Medical treatment records from April 2015 and May 2015 show the Veteran reported that his wife was supportive, they lived a good life, and were comfortable retired. He went to church weekly and had a group of friends he socialized with as part of a breakfast club. He also reported avoiding crowds and other reminders of Vietnam. He also worked in his yard and fished on his free time. He was retired after being a railroad conductor for 38 years. Mental status examination was mostly normal, with only mood and affect noted as euthymic. The Veteran underwent a VA examination in September 2015. He was diagnosed with PTSD and found to have 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; or symptoms controlled by medication. He reported being married since 1968 and indicated that he had a good marriage, as well a good relationship with his sons. The extent of his social life was meeting with other retirees for coffee in the morning. He worked as a railroad conductor and retired in 2008. Upon examination, he was dressed and groomed appropriately and displayed a limited range in affect. Noted symptoms were depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The Veteran submitted a private evaluation dated from November 2017. He was documented to have symptoms of sleep impairment, intrusive thoughts/flashbacks, difficulty concentrating, generalized anxiety, and moderately severe to severe bouts of depression. He was noted to be emotionally numb and void. He reported having very few close friends. He also attended weekly group sessions and individual sessions once a month. The evaluator indicated that the Veteran’s symptoms caused severe social and occupational impairment and he was totally occupationally and socially impaired. A VA mental health medical note from January 2018, shows the Veteran was adequately groomed, had good eye contact, normal speech patterns, had no alteration in thought content or process, and was oriented to person, place, and time. He denied suicidal ideation. In February 2018, he was determined to have level one, no cognitive decline, in an elopement risk evaluation screening. The Veteran underwent another VA examination in June 2018. He was assessed as having 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; or symptoms controlled by medication. He was still married and met with friends about six mornings a week. He was noted to have symptoms of depressed mood, anxiety, chronic sleep impairment, and a decreased ability to tolerate and manage stress effectively. At the examination, he was alert, with an appropriate affect, and oriented to person, place, and time. The examiner added that the Veteran functional limitations were depressed and anxious mood, impaired sleep, and decreased ability to tolerate and manage stress effectively. After review of the competent and probative evidence, the Board finds the Veteran’s PTSD symptomatology is most nearly approximated by the criteria for a 50 percent rating for the entire period on appeal. Significantly, the evidence establishes that the Veteran’s PTSD manifests as difficulty in establishing and maintaining effective work and social relationships and some bouts of moderately severe to severe depression. These symptoms point to a level of occupational and social impairment more severe than the one contemplated by the currently assigned rating of 30 percent and are commensurate with the level of impairment contemplated by a 50 percent rating. The November 2017 independent psychiatrist indicated that the Veteran has been totally disabled by PTSD. The Board has considered the benefit of the doubt in making its decision and has applied where appropriate. It is noted that such a determination is within the province of the Board’s fact-finding authority after reviewing the relevant medical and lay evidence. See Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing that the Board had inherent fact-finding ability). Therefore, after review of the record, the Board places less weight on this statement by the independent evaluator in light of other competent evidence of record, to include medical treatment records during the appeal period and the VA examination reports from 2015 and 2018. When looking at the totality of the evidence, the Board finds these pieces of competent medical evidence to be more aligned with the Veteran’s reports of his symptomatology. Additionally, they are more consistent with each other. For these reasons, the Board places more weight on them than the November 2017 independent psychiatrist’s report. The Board has considered this report and factored it into the matter of TDIU, which will be addressed in the next section. The Board also finds that a rating higher than 50 percent is not warranted. The Board acknowledges that the criteria for the next available rating of 70 percent specifically references continuous panic or depression affecting the ability to function independently. While the evidence shows that the Veteran has moderately severe to severe bouts of depression, they are not continuous as contemplated by the rating. See Continuous, Merriam-Webster, at https://www.merriam-webster.com/dictionary/continuous (defining “continuous” as marked by uninterrupted extension in space, time, or sequence). Here, the Veteran’s bouts of depression have breaks; thus, they are not continuous. The Board finds that, overall, his symptoms do not reach the level of occupational and social impairment required for a rating of 70 percent. The evidence does not show deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Regarding occupational impairment, the record reflects that the Veteran has good relationships with his wife, sons, and a close group of friends that he meets with regularly. Throughout his VA examinations and medical treatment records, he has had intact judgment, has had a linear and organized thought process, and is goal directed. The Board acknowledges that the November 2017 private evaluator noted suicidal ideation. However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 70 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the 2015 and 2018 VA examinations. As discussed, the Veteran has reported a generally good relationship with his immediate family, and the evidence shows he has had a linear and organized thought process. The Board finds such to be more nearly mirroring difficulty in establishing and maintaining effective work and social relationships. Additionally, as a factor, the Board notes that the competent evidence does not reflect that he has obsessive rituals, illogical speech, nor does he have spatial disorientation. Therefore, after looking at the totality of the Veteran’s PTSD picture, the Board finds that the preponderance of the evidence shown displayed symptoms that warrant a rating of 50 percent, but no higher, for this period on appeal. 38 C.F.R. §§ 4.3, 4.7. 2. A TDIU due to service-connected disabilities A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran’s service-connected disabilities include PTSD, now rated at 50 percent, right knee MG XIII rated at 40 percent, right knee MG XIV with painful hip rated at 40 percent, right knee MG XV rated at 30 percent, and noncompensable ratings for malaria, hemorrhoids, bilateral hearing loss, and right knee shrapnel scar. He has had a combined rating of 90 percent with at least one disability rated at 40 percent disabling or higher since May 15, 2015. This is the date when his initial 50 percent rating for PTSD started and it is the underlying disability for which the TDIU is attached as TDIU is not a separate claim. Therefore, his evaluation for compensation due to his service-connected disabilities meets the percentage rating thresholds for TDIU since May 15, 2015. 38 C.F.R. § 4.16(a). Even so, it must be found that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). After review of the evidence, the Board concludes that the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). The Veteran last worked full-time in November 2008. The submitted VA Form 21-8940 indicated that he worked as a railroad conductor. This form also reflects that he has four years of high school and training for his job. The medical evidence establishes that the Veteran’s right knee disabilities of MG XIII, MG IV, and MG XV, and PTSD affect his ability to work. VA examinations from June 2018 indicated that the Veteran has pain with prolonged standing and walking. This affected his ability to function in occupational environment as he would need to be able to sit down for the majority of day. An evaluation from October 2018 noted that prolonged ambulation in weightbearing will exacerbate the hip condition due to a two inch leg length discrepancy on the right leg and degenerative joint disease findings in the right knee. Additionally, as noted above, his PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity. He was found to have difficulty in establishing and maintaining effective work and social relationships and he had a decreased ability to manage stress effectively. (CONTINUED ON THE NEXT PAGE)   In light of the above, when the physical and mental impairments are considered in conjunction with his educational background and occupational history, the Board finds that his service-connected disabilities preclude him securing and following substantially gainful employment. As such, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(a). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.