Citation Nr: 20005202 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 16-49 591 DATE: January 22, 2020 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. During the rating period on appeal, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking or mood. 2. The Veteran’s service-connected disabilities render the Veteran unable to obtain or sustain a substantially gainful occupation. CONCLUSIONS OF LAW 1. During the rating period on appeal, the criteria for a 70 percent rating, but no higher, 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. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines from January 1966 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in a July 2019 Videoconference Board Hearing. The Veteran’s wife was also present and gave testimony. A transcript of that proceeding has been associated with the claims file. 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is granted. The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Psychiatric disabilities, to include PTSD, are evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent disability rating requires 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating requires 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); or inability to establish and maintain effective relationships. A 100 percent disability rating requires 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. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether the Veteran exhibited the symptoms listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Having reviewed the record, the Board finds that for the rating period on appeal, the Veteran is entitled to an increased disability rating of 70 percent, but no greater, for his PTSD. The Veteran underwent a VA examination in April 2015. The VA examiner indicated the Veteran’s PTSD manifested with the following symptoms: occupational and social impairment with reduced reliability and productivity; depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; disturbances in motivation or mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a work-life setting. The examiner further indicated that the Veteran denied suicidal or homicidal ideation. See April 2015 VA examination. His appearance indicated good attention to personal hygiene and his speech was normal with no indication of a thought disorder. The examiner further opined “although symptoms were checked on Section II, number 4 of this report, [the] Veteran’s symptoms are also described in detail in this report, and his symptom expression diverges significantly from the specific severities designated for each symptom on the list.” Id. In January, September and December 2014 the Veteran was seen by VA doctors for his PTSD. See January, September, and December 2014 VA treatment records. The VA doctors indicated the Veteran presented with the following: thought processes were linear, logical, and goal oriented; he exhibited good hygiene and grooming; endorses flashbacks, hypervigilance, hyperstartle, avoidance, and numbing; denied hallucinations; denies obsessions and compulsions; endorses irritability; and no suicidal or homicidal ideations were present. Id. In April 2015, the Veteran’s wife submitted a lay statement detailing the Veteran’s symptoms that she has witnessed. She indicated that she has witnessed the Veteran have panic attacks that have led to Emergency Room visits, and that the Veteran spent three days in the hospital in October 2014. See April 2015 Buddy/Lay Statement by the Veteran’s wife. She indicated that the Veteran reacts to loud noises and startles very easily. She cannot stand close to him when he wakes up, and the Veteran is always on guard to make sure everything is locked tightly. In addition, helicopters and airplanes flying low make the Veteran nervous. Id. In a written lay statement submitted by on the Veteran’s former co-worker, D.K., he indicated that the Veteran had difficulty making friends at work, difficulty with stressful situations, and difficulty if there were changes to his daily routine. See April 2015 Buddy/Lay Statement by D.K. He further indicated that as the number of employees increased, the Veteran’s social skills, job skills, and mood greatly affected the Veteran’s ability to perform his job. He indicated that in February 2014 after continuing to deal with these problems, the Veteran resigned from his position. Id. Another April 2015 lay statement submitted by the Veteran’s former co-workers R.R. and G.R. indicated that the Veteran had difficulties interacting with his co-workers and bosses. See April 2015 Buddy/Lay Statement by R.R. and G.R. Lay testimony by the Veteran at the July 2019 Board Hearing indicates that he has difficulty interacting with other people and struggles with impulse control. He testified that he is depressed a lot of the time. See July 2019 Board Hearing Transcript. The Veteran does not like people walking behind him and scaring him and does not like large crowds or groups of people. Id. He further indicated that he has a hard time completing and finishing jobs that he begins because he gets sidetracked and loses his train of thought. In addition, the Veteran testified that he has intermittent panic attacks, and was hospitalized for three days due to a severe panic attack. Id. Based on the above, the Board finds the Veteran experiences occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to such symptoms as: obsessional rituals which interfere with routine activities; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The record does not support, and the Board does not find that the Veteran has exhibited the severity, frequency, or duration of symptoms of PTSD that would entitle him to a 100 percent disability rating due to total occupational and social impairment. For these reasons, the Board finds that for the rating period on appeal, the Veteran is entitled to an increased disability rating of 70 percent, but no greater, for his PTSD. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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 or more. 38 C.F.R. § 4.16 (a). The Veteran has the following service-connected disabilities: posttraumatic stress disorder (PTSD) evaluated as 50 percent disabling and being increased to 70 percent disabling; sleep apnea evaluated as 50 percent disabling; tinnitus evaluated as 10 percent disabling; bilateral hearing loss evaluated as 10 percent disabling; and hypertension and erectile dysfunction which are 0 percent disabling. The April 2015 Rating Decision noted that the Veteran schedular requirements for TDIU were met. The VA Form 21-8940 that the Veteran submitted indicates that he contends his PTSD, sleep apnea, and GERD prevent him from working. The Board notes that the Veteran has not been service-connected for GERD. However, the Board finds that the Veteran’s service-connected PTSD and sleep apnea keep the Veteran from securing or following a substantially gainful occupation. At the July 2019 Board Hearing, the Veteran testified that he has concentration problems with intrusive thoughts due to his PTSD, which interferes with his ability to finish doing chores around the house. He indicated that about a third of his day is spent interrupted by these thoughts. See July 2019 Board Hearing Transcript. He further indicated that he is prone to outbursts and struggles with impulse control and saying things that he should not. Id. The Veteran’s wife submitted a lay statement in support of the Veteran’s claim for TDIU. See April 2015 Buddy/Lay Statement by the Veteran’s wife. She indicated that while the Veteran was still working, he was agitated and irritable. In addition, she indicated that he was depressed, moody and distant most of the time. Id. In a written lay statement submitted by on the Veteran’s former co-worker, D.K., he indicated that the Veteran had difficulty making friends at work, difficulty with stressful situations, and difficulty if there were changes to his daily routine. See April 2015 Buddy/Lay Statement by D.K. He further indicated that as the number of employees increased, the Veteran’s social skills, job skills, and mood greatly affected the Veteran’s ability to perform his job. In addition, in February 2014 after continuing to deal with these problems, the Veteran resigned from his position. He indicated that his panic attacks that he incurs as a result of his PTSD will also interrupt any task that he is working on. Id. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds these lay statements to be highly probative as they are competent, credible and based on observable symptoms. At a December 2014 VA examination, the VA examiner indicated that the Veteran’s now service-connected sleep apnea affects his ability to work because the Veteran has difficulty concentrating and tends to fall asleep easily when working. See December 2014 VA examination. At the April 2015 VA examination, the examiner indicated that the Veteran worked from March 2012 to February 2014 as a security guard. The VA examiner indicated that the Veteran’s ability to follow and understand instructions is unimpaired. See April 2015 VA Examination. His ability to retain instructions as well as sustain concentration to task persistence and pace is mildly to moderately impaired. The Veteran’s ability to respond appropriately to changes in the work setting is moderately to severely impaired. The ability to respond appropriately to co-workers, supervisors or the general public is mildly impaired. Id. (Continued on the next page)   The Board finds that the preponderance of the evidence establishes that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. As noted above, the record demonstrates that the Veteran has significant impairment due to both PTSD and sleep apnea which cause an inability to work. He has credibly stated and testified that he resigned from working as a security guard due symptoms associated with PTSD. Given his work history, education and symptoms associated with his service-connected disability, the weight of the evidence supports the claim. Accordingly, the claim for entitlement to a total disability rating based on individual unemployability (TDIU) is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.