Citation Nr: 20007986 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-34 994 DATE: January 30, 2020 ORDER Entitlement to an increased disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder prior to January 20, 2020 is denied. Entitlement to an initial disability rating of 70 percent for PTSD with major depressive disorder from January 20, 2020 is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal period from April 25, 2016 through January 20, 2020, the Veteran’s PTSD with major depressive disorder most nearly approximated occupational and social impairment with reduced reliability and productivity. 2. From January 20, 2020, the Veteran’s PTSD with major depressive disorder most closely approximated occupational and social impairment with deficiencies in most areas; total occupational and social impairment was not shown at any time. 3. The Veteran’s PTSD with major depressive disorder, bilateral hearing loss, and bilateral tinnitus renders the Veteran unable to maintain any form of substantially gainful employment consistent with his education, training, and work history. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD with major depressive disorder prior to January 20, 2020 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating of 70 percent for PTSD with major depressive disorder from January 20, 2020, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1967 to September 1970. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Campaign Medal and the Vietnam Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has a separately perfected an appeal for Parkinson’s disease. This issue has not been certified to the Board, therefore the Board declines jurisdiction over the matter at this time. The claim will be the subject of a future Board decision at a later date if the benefits sought are not granted. In November 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. At the hearing, the Veteran’s representative stated that the Veteran waived RO consideration of any additional evidence submitted or obtained since the previous adjudication; a number of documents have been added to the Veteran’s file since his previous adjudication, both directly from the Veteran and developed by VA. Considering the Veteran’s knowing and clear waiver, however, the Board shall review this evidence in the first instance. Increased Rating Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. §§ 4.1, 4.2, 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases such as this where the Veteran’s rating has been staged, the Board is tasked with reviewing the propriety of both the disability ratings assigned as well as the dates of the stage. Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130. Under the General Formula, 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 is warranted for PTSD when there is 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; and 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely based on social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 1. Entitlement to an increased disability rating in excess of 50 percent for PTSD with major depressive disorder prior to January 20, 2020 is denied. Currently, for the period from April 25, 2016 through January 20, 2020, the Veteran’s PTSD is rated at 50 percent. For the reasons that follow, the Board determines that, prior to January 20, 2020, a rating in excess of 50 percent is not warranted. The Veteran contends his PTSD symptoms warrant a higher evaluation than the 50 percent he was granted in the June 2016 rating decision which granted him service connection for PTSD, effective April 25, 2016. He contends he should be in receipt of the maximum rating allowed, a 100 percent evaluation. The Veteran’s VA treatment records reflect his mental health treatment and diagnosis. Throughout his VA treatment records, he reported sleep disturbances, crying spells, and anger issues. Throughout his VA treatment records he consistently confirmed he did not have any suicidal or homicidal ideation, but at times he has considered what the purpose of life is and had strong suicidal ideation when he was middle aged, around the early 2000s. During a 2012 mental health consult in his VA treatment records, the VA doctor noted the Veteran was alert, oriented, and cooperative. His speech was normal and there were no hallucinations, delusions, or psychotic though processed evidenced. There was no evidence of cognitive dysfunction. In January 2013 VA treatment records, the Veteran stated he did not want any mediation and he did not want to see a counselor. He reported he felt fine. In his more recent VA treatment records, the Veteran reported in October 2018 that he dislikes crowds, has intrusive thoughts, is emotionally detached, avoidant, hypervigilant, and has an exaggerated startle response. During this time, he was also asked if he was bothered by thoughts that you would be better off dead or of hurting yourself in some way; he responded with “Nearly every day.” His VA treatment records reflect treatment through individual therapy sessions and medication. The Veteran underwent a VA examination in June 2016 wherein his diagnosis of PTSD and major depressive disorder were confirmed. The Veteran reported problems with anxiety, difficulty around crowds, intrusive thoughts, sleep problems, panic attacks, and difficulty with loud sounds. He also reported feeling depressed, has crying spells, and problems with motivation. He reported fleeting suicidal thoughts. The Veteran’s occupational and social impairment was categorized as reduced reliability and productivity. The examiner stated his current level of severity of PTSD with major depressive disorder was moderate. Based on the evidence of record, a rating in excess of 50 percent during the period from April 25, 2016 through January 20, 2020 is not warranted. Throughout the period referenced, the medical and lay evidence indicate that symptoms of PTSD included sleep impairment, depression, panic attacks, hypervigilance. These symptoms more closely approximate those listed in the criteria for a 50 percent rating. There is insufficient evidence to show that a 70 percent rating is warranted based on 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. The Veteran has been married for over twenty years, and has two daughters and siblings. During this time the Veteran did not maintain employment, he stopped working in 2008 due to a back injury. He had worked for 36 years in the coal mines. The Board acknowledges the Veteran’s statements regarding passive suicidal ideation at various times during the appeal period. On balance, the Board does not find that this symptom, considered alongside his other reported and observed symptoms, is of the frequency, severity, or duration to approximate those described by the 70 percent rating. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a disability rating in excess of 50 percent for PTSD, the doctrine is not for application. 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to an initial disability rating of 70 percent for PTSD with major depressive disorder from January 20, 2020 is granted. As noted above, for the period prior to January 20, 2020, the Veteran’s PTSD with major depressive disorder is rated at 50 percent. For the reasons that follow, the Board finds that the Veteran met the criteria for a 70 percent rating for this period. The Board further finds that, at no time, has the Veteran met the criteria for a 100 percent rating. The Veteran has offered competent testimony as to a more severe disability picture than that assessed previously. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran testified at his November 2019 VA hearing. His wife provided additional testimony during the hearing. The Veteran and his wife testified that his PTSD and major depressive disorder symptoms have gotten worse. He testified about his anger outbursts, that he takes his anger out on his wife, he has impaired impulse control, and grossly inappropriate behavior. The Veteran’s representative explained that he moans uncontrollably, which occurred during his hearing. The Veteran and his wife report he gets lost and confused, he also has startled responses. His wife reports he used to go to the store but no longer goes because people make fun of him. The Veteran underwent a VA examination in January 2020. The Veteran reported panic attacks with a surge of discomfort and that he does not like to be around people. He also has intrusive memories, external, and internal avoidance of stimuli. The examiner reported he suffers from episodic depression, lasting two weeks or longer at a time. The Veteran reported sleep issues, feelings of sadness, emptiness, hopelessness, irritability, and worthlessness. He also struggles with concentration and relies on his wife to make decisions and handle financial matters. The Veteran reported he does not have any desire to hurt himself or others, he denies hallucinations. The VA examiner reported the Veteran’s occupational and social impairment is characterized with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Veteran has been married for over thirty years and has children. The Veteran reported avoiding going out because people laugh at his tics. He sees a psychiatric provider and is involved in individual therapy sessions and takes medication. Some of his medications were stopped by his neurologist for other medical conditions. The VA examiner noted the Veteran’s symptoms included depression, anxiety, suspiciousness, panic attacks that occur weekly, near continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, gross impairment in thought processes and communication, mood and motivation disturbances, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful situations, inability to establish and maintain effective relationships, obsessional rituals, spatial disorientation, and neglect of personal appearance and hygiene. The VA examiner concluded the Veteran’s symptoms have worsened but no change to his diagnosis. Based on the Veteran’s testimony, his VA treatment records, and his January 2020 VA examination, the record reflects the Veteran’s symptoms described notable social and occupational impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, 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. Such a disability picture is best embodied in the criteria for a 70 percent rating, and the appeal is thus granted to this extent. That said, the record does not support granting a 100 percent rating for the Veteran’s PTSD with major depressive disorder. The Veteran’s symptoms do not result in total occupational and social impairment as required for the 100 percent rating. Notably, the Veteran is married. His VA treatment records also reflect she presented as oriented to person, time, and place, and his responses were noted to be even, as recently as January 2020. Though he has shown severe impairments in occupational and social functioning, they have not been shown to be total. Absent such evidence, a 100 percent rating is not warranted. Further, the effective date of January 20, 2020 for the date of this increase is appropriate, as that is the date of the VA examination which reflects the necessary criteria for an increased rating. The Board does not discount the testimony of the Veteran or his wife; instead, it is guided by the applicable regulation regarding effective dates for increased ratings, finding that the date of the VA examination is the clearest point at which it is factually ascertainable that the Veteran met the criteria for an increased, 70 percent rating. Thus, for the reasons described above, the claim for a disability rating of 70 percent is granted from January 20, 2020. TDIU 3. A total disability rating based on individual unemployability (TDIU) is granted. During the Veteran’s hearing, the issue of TDIU was raised. The Veteran contends his service-connected disabilities render him unable to maintain substantially gainful employment. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In the present case, the Veteran has presented evidence that his service-connected disabilities preclude him from gainful employment. At his hearing, he and his wife testified that his outbursts would prevent him from working and that he could not handle a working environment. The Veteran testified that his hearing loss and tinnitus (he referenced as vertigo) caused him to be dizzy and he had to miss work in the past. The Veteran’s VA Form 21-8940 (Veteran’s Application for Increased Compensation based on Unemployability) provided that he worked for a coal company from 1992 to 2008. As noted above, the Veteran underwent a VA examination in January 2020. The VA examiner reported that the variety of symptoms observed by the Veteran suggest that maintaining adequate performance in any work environment is unlikely. The examiner reported his depression affects his sleep and concentration. The examiner also noted his depression would provide difficulty in maintaining relationships. The examiner noted it is unlikely he could respond effectively to a command or direction with any complexity and that gaps in his memory would be a concern for effective functioning. The examiner also referenced his ongoing intrusive memories, anger, and irritability which would impair his ability to follow instruction, concentrate on details, and adhere to work routines and demands. The examiner also noted his poor communication would be a barrier to effective performance. In determining whether TDIU is warranted, a 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, 529 (1993). Based on the Veteran’s hearing testimony, medical records, and January 2020 VA opinion, the Board concludes that a TDIU is warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.