Citation Nr: 20021024 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 20-06 146 DATE: March 24, 2020 ORDER From June 2, 2017, entitlement to disability rating of 70 percent, but not greater, for posttraumatic stress disorder (PTSD) (also claimed as major depressive disorder and insomnia) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran first sought service connection for PTSD by means of submitting an intent to file claim received by the Department of Veterans Affairs (VA) on June 2, 2017. 2. From June 2, 2017, the Veteran’s PTSD has been characterized by occupational and social impairment with deficiencies in most areas. 3. The severity, frequency, and duration of the Veteran’s symptoms do not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria are met for a 70 percent, but not greater, rating for PTSD, effective from June 2, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1, 4.3, 4.7, 4.20, 4.126-4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from September 1999 to May 2006. He is a veteran of the Gulf War Era and served in Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2017 and January 2020 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The November 2017 rating decision assigned a 30 percent rating for PTSD effective June 2, 2017. The January 2020 Decision Review Officer decision increased the evaluation of his PTSD from 30 percent disabling to 50 percent disabling, effective June 2, 2017, the date VA received the Veteran’s intent to file a claim. The Board recognizes that with the award of a 70 percent rating for his PTSD with unspecified depressive disorder throughout the period on appeal, the Veteran is now eligible for a TDIU on a schedular basis under the provisions of 38 C.F.R. § 4.16(a) and the record has otherwise raised an included claim for TDIU. The Board has therefore added this issue for current appellate review. 1. Entitlement to a rating in excess of 50 percent for PTSD (also claimed as major depressive disorder and insomnia) The Board notes that the Veteran’s service-connected conditions are rated together based on the general criteria for mental disorders. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran asserts that his service-connected PTSD and the functional impairment resulting from this disability is more disabling than the currently-assigned 50 percent evaluation, and has been throughout the pendency of the appeal (since June 2, 2017). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are based on the average impairment of earning capacity as a result of a service-connected disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 70 percent rating: Occupational and social impairment, with deficiencies in most areas, such as with respect to his or her work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with his or her 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 worklike setting); inability to establish and maintain effective relationships, a 70 percent rating. The symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. The focus of an increased rating analysis is on the severity of the symptoms and the level of impairment to occupational and social function rather than how many of the listed symptoms the veteran exhibits. The use of the term “such as” in the rating criteria demonstrates that the symptoms are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. 38 C.F.R. §§ 3.321, 4.2, 4.2, 4.10; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board need not find most, or even some, of the enumerated symptoms are present to award a specific rating. A Veteran may meet the criteria for a given disability rating by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. When determining the appropriate disability evaluation, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a particular Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In adjudicating a claim for a higher rating, all symptoms of a claimant's service-connected mental disorder that affect the level of occupational or social impairment must be considered. Analysis The Veteran reported two stressors: #1 being shot at by a sniper who barely missed him, hitting a close-by water container and later seeing the sniper face-to-face; and #2 seeing and helping to recover dead bodies from a nearby building following an explosion caused by an IED. A June 2017 mental health note indicates that the Veteran reported he has been symptomatic for years. He reported that his anxiety, depressive symptoms, and insomnia made it extremely difficult to do his work, take care of things at home, or get along with others. He reported symptoms consistent with major depression and moderate to severe anxiety. A July 2017 mental health note indicates that previously the Veteran’s wife had kicked him out of the house. He was charged with assault, spending 48 hours in jail. He reported being homeless, sleeping on friend’s couch and “couch surfing.” His sister came from out of state to take his daughter home with her to provide care for her. In the October 2017 PTSD VA examination, the Veteran reported feelings of depression that last all day, sometimes a whole week. He stated his low moods started shortly after he came back from Iraq. He stated his mood declines due to memories from Iraq because he didn’t expect to see the dead bodies. He expressed feelings of hopelessness and that he has not gone forward with his life after service. He reported fatigue, loss of interest his usual activities, loss of energy, anxiety, and always needing to know what the future holds. He reported that he shows anger if someone misunderstands him or asks for an explanation by raising his voice, and calling people names. He reported sleep disturbances, going to bed at 1 am and delayed onset of sleep worrying about having dreams. He reported waking during the night for no reason or due to dreams and awakening at 4:30 to 5 am. He has bad dreams nightly without medication that involve being chased, and seeing explosions or dead faces related to his PTSD triggers. Medication alleviates some of his symptoms. He reported problems with concentration and memory. He reported intrusive memories of stressors three times per week with physical reactions including believing he is holding a weapon and heart racing. He reported trying to avoid thoughts and feelings about the stressors by going out when there are few people around and making sure his door is locked. He avoids his storage room that holds his military supplies. He avoids looking at military personnel. He reported strong negative thoughts about himself because his wife has had to deal with his symptoms, and he feels too much dependency on people. He feels that he has not accomplished anything because of his “worries.” He stated that he left a good job because he thought “they were stupid.” He reported his wife kicked him out of the house after a year of marriage because of his symptoms, including hearing him scream at night. The Veteran reported three criminal charges from his wife, two of assault and one of violating a restraining order that were pending at the time of the examination. The Veteran reported feeling distant or cut off from others, experiencing hypervigilance, and being unable to see his children. The Veteran stated his emotional issues impact his ability to work because his symptoms caused him to resign from a good job. The record reflects that the Veteran is currently prescribed Buspirone (anxiety), Mirtazepine (sleep), Lexapro (mood), and Prazosin (nightmares). The Veteran’s separation medical exam noted he had received counseling and had been evaluated for a mental condition i.e. “received counseling for divorce and combat stress disorder.” During the exam, he stated his mood was “ok until you ignited some of those memories.” For VA rating purposes, the examiner checked all of symptoms that actively apply to the Veteran's diagnoses: [X] Depressed mood [X] Anxiety [X] Suspiciousness [X] Chronic sleep impairment [X] Disturbances of motivation and mood. The examiner found the Veteran has a diagnosis of PTSD that is at least as likely as not (50 percent or greater probability) incurred in or caused by combat in Southwest Asia during service. An April 2018 mental health note indicates that the veteran reported severe symptoms of PTSD including nightmares, night sweats, intrusive bad memories, hypervigilance and over reactivity to minimal stimuli. A January 2019 TBI DBQ notes that the Veteran reported headaches every 4 to 5 days. He was a junior in college at that time and reported that he forgot to take tests and turn in assignments. He reported taking medication for PTSD and anxiety and that without the medications, he focuses better. He reported mild memory loss. The examiner noted he is occasionally disoriented as to person, time, situation as he sometimes forgets the date. The examiner found the Veteran did not suffer a TBI as a result of a blast injury and attributed his memory problems to his anxiety/PTSD. A September 2019 mental health noted indicates that the Veteran reported that he began to have symptoms including intrusive thoughts, nightmares, hypervigilance, irritability, excessive startle response, avoidance of crowds and people after he returned from a tour in Iraq in 2007. He stated that it wasn't until several years later, following the domestic violence incident with his wife, of which he has no memory, that he was required to go to counseling and was diagnosed with PTSD by VA. The Veteran admitted to passive suicidal ideation, expressing a “wish to die” and thoughts that he would be better off dead or of hurting himself in some way nearly every day. A November 2019 mental health note indicates that the Veteran reported his sister takes him out sometimes but that the majority of the time he is home. He reported that one day he was walking and a guy was walking behind him and “I freaked him out. I yelled, I flinched, I cursed at him. Then I told him I was sorry and went back home. I went overboard. He freaked me out.” The Veteran stated that he feels he is existing, not living. “I have no wife, no children, no friends, no purpose.” He reported feeling “fidgety” and that anything loud can make his heart beat fast. He talks to himself in a loud voice. Sometimes he laughs for no reason whatsoever. He reported nightmares of guns, weapons, peoples’ heads, hiding behind a wall. He reported feelings of guilt, noting that “I went there and I could have done something better but I did not.” He reported feeling tired, depressed, and poor concentration. The Board finds that the evidence of record, including an October 2017 VA examination for PTSD, the Veteran’s VA treatment records, and the Veteran’s lay statements reflect that the Veteran has experienced severe psychiatric symptoms throughout the appeal period. He has consistently and credibly reported experiencing these symptoms. The Board finds that the Veteran’s symptoms indicate occupational and social impairment with deficiencies in most areas. The Veteran’s symptoms impact almost every area of his life, including work, family relations (including accusations of domestic violence), and mood. He suffers from week-long bouts of depression that affect his ability to function independently, appropriately and effectively, impaired impulse control in lashing out at others when experiencing irritability, including angry outbursts at strangers and being accused of domestic violence, difficulty in adapting to stressful circumstances (including work or a work-like setting), and inability to establish and maintain effective relationships. The Board further notes the Veteran reported passive suicidal ideation, a symptom only associated with a 70 percent rating. In Bankhead v. Shulkin No. 15-2404 (Vet. App. May 19, 2017), the Court held that VA regulations do not differentiate between active and passive suicidal ideation; there are no descriptors, modifiers, or indicators in the regulation. The Court held that the language of the regulation indicates that “the presence of suicidal ideation alone” may cause occupational and social impairment with deficiencies in most areas. After a thorough review of the record, the Board finds that the most probative evidence reflects that the Veteran’s psychiatric symptoms and resulting functional impairment most nearly approximate the criteria for a 70 percent, but not higher, evaluation throughout the entirety of the appeal period. The Board finds that the Veteran’s PTSD symptoms do not more closely approximate a 100 percent disability rating due to total occupational and social impairment. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 100 percent rating: 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; and memory loss for names of close relatives, own occupation, or own name. In this regard, the Veteran has been shown to have at least adequate personal hygiene, no gross impairment in thought processes or communication, no persistent delusions or hallucinations, and no disorientation other than some forgetfulness with respect to the correct date. The Veteran also maintains at least some family relationships such as with his sister and worked recently as an Uber driver. Thus, although there is some question as to whether he is capable of a gainful occupation, total social impairment is not shown. REASONS FOR REMAND 1. Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A TDIU may be assigned where the schedular rating is less than total when the disabled person is unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities. Where the Veteran is service connected for only one such disability, the disability must be ratable at 60 percent or more. If there are two or more disabilities, one disability must be ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). When determining whether a veteran is considered to be “unable to secure and follow a substantially gainful occupation,” the Veteran’s history, education, skill, and training are taken into account. The Veteran’s physical and mental abilities are also considered. As to physical abilities, relevant factors include limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, and audio and visual limitations. As to mental abilities, relevant factors include limitations as to memory, concentration, reliability, and productivity, along with the ability to adapt to change, handle workplace stress, and get along with coworkers. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran’s age or impairment caused by nonservice-connected disabilities are not considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The question of whether a Veteran is considered capable of substantial gainful employment is not a medical determination; it is for the adjudicator to decide. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The focus is not on whether the Veteran is unemployable due to his service-connected disabilities but on the level of functional impairment caused solely by his service-connected disabilities. The Board has determined the Veteran’s PTSD symptoms most closely approximate a disability rating of 70 percent. The Veteran reported that he is currently unemployed during a March 2020 VA examination. It is unclear when the Veteran stopped working. Previously, the Veteran reportedly worked as an Uber driver, making approximately $1500 per month, which varied. The Board will therefore remand this issue to allow the Veteran to submit verification of unemployment and/or income verification for the period dating from June 2, 2017, to the present and for additional development to determine whether his prior income amounted to substantially gainful employment, whether he is currently unemployed and if so, the date that he became unemployed, and for an opinion as to the impact of his service-connected disabilities on his ability to obtain and maintain a gainful occupation. This matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to provide all the necessary evidence in support of his claim for TDIU. 2. Obtain a medical opinion to address to what extent the Veteran’s service-connected disabilities of PTSD and headaches impact his ability to secure or maintain a substantially gainful occupation consistent with the Veteran’s education and occupational experience, and without consideration of the Veteran’s age. The examiner should attempt, to the extent possible, to identify any symptoms and functional impairments due to the Veteran’s service-connected PTSD and headaches and discuss the effect of such on any occupational functioning and activities of daily living. In this regard, the examiner is asked to consider all of the Veteran’s lay statements regarding the impact of his service-connected PTSD and headaches on his ability to work, and any employability evaluation submitted by the Veteran. A complete rationale is required for all opinions rendered. If further testing or examination is determined to be warranted in order to adequately evaluate the issue, such testing is to be accomplished prior to the completion of the examination report. 3. Thereafter, adjudicate the claim for TDIU. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.