Citation Nr: 20027167 Decision Date: 04/18/20 Archive Date: 04/18/20 DOCKET NO. 14-07 327A DATE: April 18, 2020 ORDER Entitlement to an initial disability rating of 70 percent, but not greater, for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas. 2. Resolving all reasonable doubt in his favor, the Veteran’s service-connected PTSD has rendered him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 70 percent, 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 entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1969. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Board denied the Veteran’s claims for entitlement to an initial disability rating in excess of 50 percent for PTSD and TDIU. The Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (CAVC) and in October 2018, based on a Joint Motion for Remand (JMR), the case was remanded back to the Board. The JMR indicated that the Board failed to address an October 2017 request for a Board hearing. Since the October 2018 JMR, the Veteran’s representative submitted a statement informing the Board that the Veteran was withdrawing his prior request for a Board hearing and that the Board should proceed with adjudication of the Veteran’s claims. See May 2019 Evidence/Argument. In September 2019 the Board remanded the issues on appeal for additional development and the case now returns for further appellate review. 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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, 58 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 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 rating is assigned when symptoms such 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 cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. Entitlement to service connection for PTSD was awarded in a January 2011 rating decision. An initial 30 percent evaluation was assigned effective April 8, 2010. The Veteran filed a notice of disagreement in August 2011. In February 2014, the RO increased the Veteran’s PTSD from 30 percent disabling to 50 percent effective April 8, 2010. The Veteran contends that the frequency, severity, and duration of his PTSD symptoms far exceed the level of those contemplated by his current rating, warranting the assignment of at least a 70 percent rating for the entire period on appeal. See February 2020 Third Party Correspondence. A claimant is generally presumed to be seeking the maximum evaluation available under law. AB v. Brown, 6 Vet. App. 35, 39 (1993). However, a claimant can choose to limit the appeal for a claim for less than the maximum rating. See id at 35. As discussed in the decision below, the Board has determined that the Veteran’s PTSD most nearly approximates the criteria associated with a 70 percent evaluation throughout the relevant claims period. In light of the Veteran’s limiting the scope of the increased rating appeal, this decision constitutes a complete grant of the benefits sought on appeal. The Board finds that an increased 70 percent rating is appropriate for the Veteran’s PTSD under Diagnostic Code 9411 in accordance with the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130. In October 2010 the Veteran underwent a VA examination where he described symptoms of irritability, social avoidance and phobia, hypervigilant- distrust of others. The examiner noted the severity of the symptoms as moderate constant, continuous or ongoing. The examiner notes the Veteran indicated the symptoms affect total daily functioning. The Veteran stated that he is different than before, and that he is not happy go lucky now as he was before. The Veteran further stated that he has a short fuse and a quick temper. He noted that his wife wont sleep in the same room with him, and he had to finally quit his job. He further noted that he does not get along with some family. The Veteran reported that he has had trouble sleeping since 1969, and that when he sleeps, he falls deeply and then when he awakens has an excessive startle that is threatening to anyone around him. The Veteran does not have a history of violent behavior or a history of suicide attempts. The Veteran stated that he is married and that his relationship with his wife is good. The Veteran’s relationship with his children is noted as distant, and that he talks to his daughter about once every six or seven months. The Veteran’s highest level of education obtained before military service was 10th grade. Before joining the service, the Veteran drove tractors and worked in the orchards. Id. While in the service, the Veteran served in Vietnam as a truck driver and infantry. It is noted that he was engaged in combat activities. The Veteran relayed that while in Vietnam he went to second combined action and was on two inside attacks. The Veteran describes that he was under threat of being killed or injured multiple times. He notes that twice he was overrun, was in the jungle alone, and had to run to the next camp. He further notes that he was identified as MIA. He noted during this time he witnessed others being wounded, injured and killed. He further added that as a driver he had to avoid mines and attacks. See October 2010 VA Examination. The examiner notes there are recurrent recollections of the event and intense distress at exposure to similar events which continues to persist. The examiner notes the Veteran has an extreme physiological reactivity to cues that symbolize an aspect of the event which continues to persist. The examiner further noted that the Veteran demonstrates avoidance of stimuli, and avoids activities, places or people that arouse recollections of the event. The examiner notes the Veteran has markedly diminished interest or participation in significant activities, and has feelings of detachment or estrangement from others. The examiner further notes the Veteran has irritability or outburst of anger, an exaggerated startle response, difficulty concentrating, and is hypervigilant. The examiner described the Veteran’s psychiatric impairment as causing occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation. In August 2016 the Veteran underwent a VA examination where the examiner diagnosed the Veteran with PTSD and Alcohol Use Disorder Severe noting that it was not possible to differentiate which symptoms were attributable to each diagnosis, however the examiner noted the Veteran’s chronic and heavy alcohol use was likely increasing the severity of his symptoms. The examiner summarized the Veteran’s level of occupational and social impairment with regard to his PTSD as occupational and social impairment with reduced reliability and productivity. The Veteran’s symptoms are noted as anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike settings, impaired impulse control, such as unprovoked irritability with periods of violence. The examiner notes that the Veteran reported he has had two DUIs. In April 2019 the Veteran underwent a private physician interview where the examiner found that the Veteran’s PTSD is chronic and severe. She further opined that the culmination of the Veteran’s psychiatric symptomology has at least as likely as not caused him occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking and mood since at least April 2010 to the present. The private physician noted the Veteran’s symptoms to include: recurrent thoughts, flashbacks, intense and prolonged distress following exposure to traumatic reminders, marked physiologic reactivity after exposure to trauma-related stimuli, avoiding memories, thoughts, feelings and trauma-related external reminders, negative emotional state, markedly diminished interests, alienation and detachment, irritability, hypervigilance, exaggerated startle response, depressed mood, diminished interest, anxiety, suspiciousness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, and impaired impulse control. The private physician opined that although the VA examiners attributed some of the severity of the Veteran’s symptoms to an alcohol abuse disorder, she opined that it is at least as likely as not that the Veteran’s increased consumption of alcohol was to self-medicate his severe psychiatric symptoms resulting from his PTSD as the Veteran stated to her that he was more likely to drink the more stressed he is. In January 2020, the Veteran underwent a VA examination where he was diagnosed with PTSD. In this examination the Board notes he was only diagnosed with PTSD, and his occupational and social impairment is described as occupational and social impairment with reduced reliability and productivity. In this examination the Veteran noted that he gets along okay with his wife, and has three adult children from his first marriage and has had little contact with them since they were children. The Veteran noted he stays away from people but has maintained contact with one sister. The Veteran further reported that he does not read, is illiterate and was identified as having a learning disability while in school. The Veteran noted that he drinks four shots of whiskey per night and a little marijuana. The examiner noted the Veteran’s symptoms to include anxiety, suspiciousness, chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. The Board finds that an increased 70 percent rating is appropriate for the Veteran’s PTSD under Diagnostic Code 9411 in accordance with the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130. The lay and medical evidence establishes that the Veteran’s PTSD most nearly approximates the criteria associated with a 70 percent evaluation. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Examinations and VA treatment records dated throughout the claims period document symptoms of recurrent intrusive thoughts, intense and prolonged distress, avoidance of memories, persistent and exaggerated negative beliefs, persistent distorted cognitions, persistent negative emotional state, markedly diminished interest or participation in significant activities, irritable behaviour and angry outbursts, reckless or self-destructive behavior, hypervigilance, problems with concentration, sleep disturbance, anxiety, suspiciousness, 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 worklike setting, and impaired impulse control. The competent evidence demonstrates a reduction in his occupational and social relationships and increased isolation during the claims period. The Board therefore finds that the Veteran’s symptoms are of similar severity, frequency, and duration as those contemplated by a 70 percent initial rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board finds that the evidence of record does not support a total schedular rating as the Veteran has not experienced total occupational and social impairment. 38 C.F.R. § 4.130. The Veteran’s PTSD clearly impacts many areas of his life and a 70 percent rating is appropriate. An increased initial 70 percent rating is therefore warranted throughout the claims period and the claim is granted in full. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability The Veteran contends that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. See July 2016 Veteran’s Application for Compensation Based on Unemployability. 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 finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). The Board notes that the Veteran’s increase to a 70 percent disability rating for PTSD meets the schedular criteria for the award of a TDIU. See 38 C.F.R. §§ 4.16(a) (providing that the schedular criteria are met if there is one disability rated at least 60 percent disabling). The record indicates the Veteran has worked as a rigger at the shipyards for 30 years, is illiterate and has obtained a 10th grade education. See July 2016 Veteran’s Application for Increased Compensation Based on Unemployability, and January 2020 VA Examination. While working as a rigger, the Veteran noted that the relationship with his supervisor was poor and the relationship with his co-workers was fair. The examiner notes that during his employment, many times people tried to fire him and that the Veteran notes that he retired early because he was feeling increasingly uncomfortable working around the people and having to interact with them. The examiner noted that the claimant’s unemployment is due to the effects primarily of a mental condition because this is part of the anxiety that he developed as part of his PTSD symptomatology. See October 2010 VA Examination. In the August 2016 VA examination, the examiner noted that his occupational and social impairment secondary to his mental health is likely primarily due to his chronic and heavy alcohol use. His PTSD likely contributes to a lesser degree. Symptoms noted include problems with concentration, sleep disturbance, hypervigilance, reckless or self-destructive behavior, and irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects. Id. The April 2019 private physician opined that the culmination of the Veteran’s service-connected PTSD has at least as likely as not rendered him fully unable to successfully secure and follow substantially gainful employment since at least September 2010, when he last worked, to the present. The private physician notes the Veteran’s last position as a rigger at the Shipyard and notes the deterioration of tolerance in his interactions with coworkers and supervisors that led to his early retirement. The Veteran explained that he retired from the shipyard because he couldn’t handle that anymore. He notes he doesn’t deal with people well, and the stress became too much. The Veteran was told not to bring it up at the shipyard because it would impact his security clearance, so he spent years just dealing with it by isolating himself and not interacting with people at all outside of work. He notes he started having trouble with interactions, no patience, and a lot of anger. He then began to have performance issues, so he had to retire early. The Board notes the July 2017 Request for Employment Information In Connection With Claim form notes the Veteran selected optional retirement, which is consistent with what he told the VA examiner in October 2010. The January 2020 examiner opined that given the Veteran’s service-connected disabilities, the Veteran is well suited for routine, simple work and that since the Veteran has experienced a chronic mental health condition and was able to work successfully for 30 years before retiring due to age or duration of employment, then unless there is evidence of significant aggravation of the condition, it is unlikely that the chronic mental condition has had a significant negative impact on his occupational functioning. The examiner then noted however, that the Veteran’s mental disorder may contribute to mild impairment in task persistence, moderate impairment in the ability to respond appropriately to coworkers, supervisors, or the general public, and moderate impairment in ability to respond appropriately to changes in the work setting. Accordingly, considering the lay testimony and medical evidence, the Board finds it is at least as likely as not that the Veteran’s PTSD prevented him from securing   or following a substantially gainful occupation consistent with his education and occupational experience. The claim is granted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.