Citation Nr: 20005359 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 17-03 867 DATE: January 23, 2020 ORDER Prior to July 31, 2018, an initial rating in excess of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Since July 31, 2018, a rating of 100 percent for PTSD is granted. Entitlement to a total disability individual unemployability (TDIU) since March 31, 2011 is granted. FINDINGS OF FACT 1. Prior to July 31, 2018, the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas. 2. Since July 31, 2018, the Veteran’s PTSD has been manifested by total occupational and social impairment. 3. The Veteran’s service-connected disabilities have limited him to no more than marginal employment, thereby precluding him from being able to secure and follow substantially gainful employment since March 31, 2011. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent, but no higher, prior to July 31, 2018, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, DC 9411. 2. The criteria for a rating of 100 percent, since July 31, 2018, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code (DC) 9411. 3. The criteria for entitlement to a TDIU rating since March 31, 2011 have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1999 through July 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to appear at a videoconference before a Veterans Law Judge in November 2019; however, he canceled the hearing and did not request that another hearing be scheduled. See 38 C.F.R. § 20.704 (e). The Board, therefore, may properly proceed with its adjudication of the case. In April 2019, the Veteran was granted TDIU with an effective date of June 28, 2018. Given that a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise, AB v. Brown, 6 Vet. App. 35, 39 (1993), and the issue of entitlement to a TDIU was raised as part and parcel of the claim for an increased rating for PTSD filed on August 14, 2009, Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the issue of entitlement to a TDIU prior to September 29, 2015 remains on appeal 1. An initial rating in excess of 70 percent, but no higher, prior to July 31, 2018, for PTSD; and 2. A rating of 100 percent, since July 31, 2018, for PTSD Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s PTSD has been evaluated as 50 percent disabling from March 31, 2011, under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130, DC 9411. The General Rating Formula for Mental Disorders is as follows: A 100 percent rating is assigned 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; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is assigned 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); inability to establish and maintain effective relationships. A 50 percent rating is assigned for 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. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See Id. VA must consider all symptoms of a claimant’s disorder that affect his or her occupational and social impairment. See Id. at 443. If the evidence demonstrates that a claimant has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all the claimant’s symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating, and will not rely solely on the examiner’s assessment of the level of disability at the moment of examination. See Id. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) is for application as this appeal was pending before the AOJ on August 4, 2014. 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093, 45099 (effective date provisions); 80 Fed. Reg. 53, 14308 (March 19, 2015) (adopting the final rule recognizing that the DSM-IV was rendered obsolete by the publication of the DSM-5 in May 2013). A January 25, 2013 VA psychologist indicated that the Veteran’s clinical presentation of PTSD had not changed with symptoms of ongoing high risk for both dissociation (i.e. vivid, intense flashbacks); impulsive aggression if provoked or threatened; depression; isolation; and hypervigilance. The psychologist noted multiple examples from the past several years of the Veteran losing control of his temper, sometimes with harm being caused to others. The psychologist further noted that the Veteran was incarcerated from January 2008 through March 2009 related to an incident of violence during which he had dissociated badly. The psychologist indicated that the Veteran was totally and persistently disabled for purposes of employment. The psychologist explained that although the Veteran had been engaged in treatment since 2007, his compliance and participation had at times been erratic and substance abuse had contributed to his problems. The psychologist further explained that the Veteran remained at ongoing risk for rapid deterioration under stress and for further impulsive violence or aggression. The psychologist explained that the Veteran had attempted to work on several occasions but had not been able to hold any job longer than two months due to problems with anger and violence on the job. The psychologist further explained that the Veteran remained not only impulsive, but also severely depressed and that prior to his December 31, 2012 admission, he spent several months essentially housebound and isolated due to hypervigilance and depression. A January 28, 2013 VA examiner noted a diagnosis of PTSD and personality disorder, not otherwise specified. The examiner indicated it is possible to differentiate what portion of the occupational and social impairment indicated is caused by each mental disorder. The examiner further indicated that the Veteran’s legal problems, self-cutting, and self-burn behavior are caused by his personality disorder, while his social, divorce, and family problems, are caused by his PTSD diagnosis. The Veteran reported symptoms of depression, anxiety, sleep disturbances an insomnia, inability to concentrate, and flashbacks. He further reported multiple arrests and incarcerations for legal problems, to include aggravated assault. The examiner noted symptoms of recurrent and distressing recollections of the event; recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollections of the trauma; inability to recall an important aspect of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; difficulty falling or staying asleep; irritability or outburst of anger; difficulty concentrating; hypervigilance; symptoms lasting longer than one month; and the symptoms causing clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including a worklike setting. The examiner opined that the Veteran’s service-connected mental disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. A July 2018 VA examiner noted a diagnosis of PTSD. The Veteran noted symptoms of recurrent, involuntary, intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s); avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely related with the traumatic event(s); markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts; hypervigilance; problems with concentration; sleep disturbance; symptoms lasting longer than one month; the symptoms causing clinically significant distress or impairment in social, occupational, or other important areas of functioning; and the disturbance is not attributable to the physiological effects of a substance or another medical condition. Upon review of the claim file, the examiner opined that the Veteran’s psychiatric disorder results in total occupational and social impairment. Supporting this conclusion the examiner noted symptoms of depressed mood; anxiety; suspiciousness; 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; difficulty in adapting to stressful circumstances, including work or a work-life setting; and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted the Veteran appeared to exhibit some noticeable limitations: in relating to and working with supervisors, co-workers, and others; and in trying to adapt and manage oneself and that his ability to carry out occupational tasks when in near others may be difficult. VA treatment records indicate the Veteran reported depression, sleeping trouble, anxiety, hallucinations, paranoia, isolation, hypersensitivity, nightmares, inability to function without alcohol, skin crawl, upset stomach, low mood, irritability. He consistently denied suicidal and homicidal ideations. Given these facts, the Board finds that a staged rating of 70 percent rating, but no higher, prior to July 31, 2018; and a 100 percent rating, thereafter, is warranted for the Veteran’s PTSD. 38 C.F.R. § 4.7. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). With regard to the Veteran’s rating prior to July 31, 2018, the Board finds the January 25, 2013 VA psychologist’s statements highly probative. The Board notes that the January 25, 2013 VA psychologist indicated that he had been involved with the treatment of the Veteran since 2007. This examiner indicated that the Veteran’s clinical presentation of PTSD was causing symptoms of ongoing high risk for both dissociation and impulsive aggression if provoked or threatened. Based upon the symptoms and functional impairment reported by the January 25, 2013 VA psychologist the Board finds that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas prior to July 31, 2018. 38 C.F.R. §§ 3.102, 4.3, 4.130, DC 9411. While the psychologist indicated that the Veteran was totally and persistently disabled for purposes of employment, the Board finds that the Veteran’s functional impairment due to his PTSD did not result in total social impairment during this period. The Board notes that VA treatment records from the Chicago VAMC indicate that the Veteran has had a relationship with a girlfriend with whom he has lived with for significant periods of time. A psychiatry note from May 2017 reports that the Veteran has described this relationship as good at time, but that he has difficulty with trust issues. In March 2016, the Veteran reported that his relationship with his children was “very important to him” and stated that “[he] wants to be here for [his] daughter.” Additionally, the Board notes that recurrent symptoms of gross impairment in thought or communication, disorientation to time or place, and severe memory loss have not been associated with the evidence of record during this period. As such, the Board finds that the Veteran’s functional impairment due to his PTSD did not more nearly approximate total occupational and social impairment prior to July 31, 2018. 38 C.F.R. §§ 3.102, 4.3, 4.130, DC 9411. For the period since July 31, 2018, the Board finds that a 100 percent rating due to symptoms that cause total occupational and social impairment is warranted. The Board finds probative the opinion provided by the July 2018 VA examiner that the Veteran’s PTSD results in total occupational and social impairment with symptoms such as near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in establishing and maintaining effective work and social relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. As the evidence indicates that the Veteran’s symptoms of PTSD cause total occupational and social impairment a 100 percent rating is warranted. 38 C.F.R. §§ 3.102, 4.3, 4.130, DC 9411. A 100 percent rating is the maximum schedular rating available under DC 9411; as such a higher scheduler rating is not available. Entitlement to a TDIU rating prior to June 28, 2018 VA regulations allow for the assignment of TDIU when a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, and the Veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). Disabilities of one or both upper or extremities or one or both lower extremities (to include the bilateral factor), disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system (such as orthopedic disabilities) are considered as one disability for TDIU purposes. Id. The central inquiry is “whether a Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For TDIU claims, the issue is whether a veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Consideration may be given to the Veteran’s education, special training, and previous experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to June 28, 2018, the Veteran’s service-connected disorders are rated as follows: 70 percent for PTSD (granted herein); 10 percent for right shoulder status post dislocation with chronic subluxation prior to February 28, 2014, and rated 20 percent disabling, thereafter; and a 10 percent for left shoulder status post dislocation with chronic subluxation prior to February 28, 2014, and rated 20 percent disabling, thereafter. The Veteran’s combined rating during the period on appeal prior to June 28, 2018 is 80 percent. 38 C.F.R. §§ 4.25, 4.26. As the Veteran has a combined rating of 80 percent, with a single rating of 70 due to his PTSD, the Veteran has met the schedular criteria for a TDIU since March 31, 2011. 38 C.F.R. § 4.16(a). In February 2014, the Veteran submitted a statement arguing that he has been unable to keep a job due to his PTSD. In June 2018, the Veteran submitted a statement reporting that he completed two years of college and worked in security full-time until April 2007. He further indicated he worked 20 hours per week doing security from August 2011 through February 2012; however, a he missed a month from work during that time. He also reported working in the massage field 10 hours per week from November 2016 through February 2017. He indicated that he left his last job because of his disability. He indicated he has never earned more than $10,000 in one year and records from the Social Security Administration (SSA) indicate that the Veteran was determined to be totally disabled in November 2006. Upon review of the evidence of record, the Board will resolve the benefit of the doubt in favor of the Veteran and grants a TDIU since March 31, 2011, the date of the Veteran’s claim for PTSD. As noted above, the Veteran meets the schedular criteria for a TDIU throughout the appeal period. The Board finds that the Veteran’s service-connected PTSD has limited him to no more than marginal employment, thereby precluding him from being able to secure and follow substantially gainful employment since March 31, 2011. The Veteran’s sporadic work history during this period, including large gaps of unemployment and time missing from work, is indicative of less than substantially gainful employment. The Board notes that the Veteran has reported never earning more than $10,000 in a single year, which is below the poverty level for a single person ($11,137 in 2011) as defined by the U.S. Census Bureau. The Board finds that the Veteran’s work history combined with the opinion of the 2013 VA psychologist, who opined that the Veteran was totally and persistently disabled for purposes of employment, supports a finding that the Veteran service-connected PTSD has limited him to no more than marginal employment, thereby precluding him from being able to secure and follow substantially gainful employment since March 31, 2011. The Board also finds probative the Veteran’s SSA records, which indicate that the Veteran has been determined to be totally disabled since 2007. While not binding on the Board, the determination by SSA does provide information about the limitations caused by the Veteran’s PTSD prior to 2013. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Under these circumstances, the Board finds that the evidence is at least in equipoise as to whether from March 31, 2011 to June 28, 2018, the Veteran’s service-connected PTSD limits him to no more than marginal employment, thereby precluding him from engaging in substantially gainful employment. A TDIU is granted as of March 31, 2011. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. McLendon, 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.