Citation Nr: 20032008 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 18-42 301 DATE: May 6, 2020 ORDER An increased 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted, effective from June 23, 2015 to November 5, 2016 and since January 1, 2017. A total rating based on individual unemployability (TDIU) due to PTSD is granted. FINDINGS OF FACT 1. From June 23, 2015 to November 5, 2016 and since January 1, 2017, the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in the areas of work, family relations, and mood. It has not been productive of both total social and occupational impairment. 2. The Veteran’s PTSD, alone, precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From June 23, 2015 to November 5, 2016 and since January 1, 2017, the criteria for an initial rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office. In an August 2018 substantive appeal for an increased rating for PTSD, the Veteran requested to participate in a Board hearing via videoconference. In a November 2019 written statement, the Veteran, through his representative, withdrew his request for a hearing. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(e). The issue of entitlement to a TDIU due to service-connected PTSD has been raised by the record during the course of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that, in the context of an initial adjudication of a claim of entitlement to service connection or in the context of a claim for an increase “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability”). Accordingly, the issue will be addressed in this decision. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). By way of history, the Veteran filed a claim for a rating in excess of 50 percent for PTSD on June 23, 2016. In a January 2017 rating decision, the RO granted a temporary 100 percent rating from November 5, 2016 to January 1, 2017 and a 50 percent rating thereafter. As the claim for an increased rating was received on June 23, 2016, the Board will generally review evidence from that date and during the one year “look back period” preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The appeal period before the Board is from June 23, 2015, the date VA received the claim for an increased rating plus the one year look back period. In a March 2017 rating decision, the RO continued the 50 percent rating for PTSD, under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411. The relevant rating criteria are set forth below. Under the general rating formula for mental disorders, 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. 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 worklike setting); inability to establish and maintain effective relationships. 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. 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 an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Turning to the relevant evidence, the Board finds that the Veteran’s symptoms warrant a 70 percent rating from June 23, 2015 to November 5, 2016, within the one year look back period, and since January 1, 2017. The Veteran was afforded a VA mental health examination in August 2015. The Veteran reported that he visits with neighbors and helps each with projects, such as building fences or decks. The Veteran continues to work transporting adolescents to the Pueblo Treatment Facility and has worked there for eight years. The Veteran stated that he had been cut back from full-time to part-time, is working on an as needed basis, and is averaging about 25 hours of work per week. The Veteran was not taking any prescription medication or attending individual and group counseling. The Veteran denied suicidal or homicidal ideations. The Veteran endorsed aggressive behavior, including in his sleep, and impaired memory. The examiner observed that the Veteran was independent in his activities of daily living and that he was able to bathe, dress, and groom himself, and cook and drive independently. The Veteran enjoyed painting, fishing, and weightlifting. The examiner observed that the Veteran was goal-oriented but had an impaired ability for abstract thinking. The Veteran presented with mild anxiety and mild depression but without anger, irritability, or agitation. There was no evidence of thought disorder, delusional thinking, paranoia, or psychosis. The examiner noted that the Veteran had anxiety, suspiciousness, and mild memory loss, such as forgetting names, directions, or recent events. He deemed the Veteran to be low risk in terms of a being a danger to himself or others. The examiner also reported that the Veteran had markedly diminished interest or participation in significant activities outside of work and family. He had irritable behavior, anger outbursts, and problems with concentration. The examiner opined that the Veteran had 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. The examiner also noted that the Veteran was struggling in the workplace and that he was requested to cut back from full-time employment to an as needed basis employment due to his symptoms of anger, irritability and difficulty retaining information in the workplace. The examiner determined that although the Veteran continued to work 25 hours a week, he appeared to have deteriorated somewhat since the December 2013 VA examination. The Veteran was afforded another VA examination in August 2016. He reported that his wife no longer wanted to sleep in the same bed anymore, because she was afraid he may hurt her in his sleep. In terms of hobbies, he reported that he did enjoy using his exercise equipment in the basement. He stated that he stopped working at the Pueblo Girls and Boys Ranch in December 2015. The examiner noted that the Veteran had symptoms of a depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. The examiner observed that the Veteran had good grooming and hygiene and normal general behavior. His mood was euthymic with congruent affect. There was no evidence of circumstantial, thought blocking, tangential, perseveration, pressured or disorganized speech. There was no evidence of any suicidal or homicidal ideation, plan, or intent. The Veteran admitted that he occasionally gets lost and is more forgetful than he used to be. The examiner opined that the Veteran’s PTSD was productive of 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. Relevant clinical treatment evidence is demonstrative of a condition that is more severe in nature. VA treatment records dated from June 2015 to October 2016 document symptoms of anxiety, aggression, and sleep difficulties. Although the Veteran worked as a juvenile delinquent transporter at El Pueblo Boys and Girls Ranch, he indicated that work was a source of his chronic anger. He retired from the position in December 2015. The Veteran denied suicidal and homicidal ideation, but admitted experiencing thoughts of violence, hypervigilance, and a handwashing compulsion. At a March 2016 visit, the Veteran admitted that he felt provoked and punched his stepson. At an April 2016 visit, the Veteran endorsed audio and visual hallucinations for the past four months. He also admitted to recent memory loss. Mental health visits from June 2016 to October 2016 also document problems with impulse control, in addition to audio and visual hallucinations. VA treatment records from November 2016 to January 2017 reflect that the Veteran had an inpatient psychiatric admission for PTSD treatment. In March 2017, the Veteran was again afforded a VA examination. The Veteran denied any work-related issues including being late, not getting along with coworkers or skipping days of work. The Veteran endorsed sleep impairment, nightmares, avoidance, hypervigilance, easily startled, emotional detachment, flashbacks, anxiety, panic attacks, loss of interest in prior activities, strong negative emotions, irritability, negative beliefs about himself, intrusive memories and poor concentration. The examiner also noted that the Veteran has restless sleep, with nightmares about childhood and his military experiences, then feeling tired when awake. The examiner noted that the Veteran slept an average of five hours per night. He avoided public places, talking about his time in service, crowds, other veterans, the base and leaving home. He still experienced flashbacks of his time in Vietnam and tried to avoid memories associated with that service. He was irritable on a regular basis which resulted in self-isolation. He endorsed moderate anxiety daily, feels restless, and paces. The Veteran endorsed panic attacks when asked personal questions and stated that being in public was a trigger for him for panic attacks. He felt sad, cried often and was frustrated due to medical issues and lack of energy. He used to engage in many outdoor activities, such as sports, hiking, and fishing in addition to martial arts and building things, but rarely did any activities anymore. He stated that he felt like “dead weight” and a burden on his wife. He endorsed auditory hallucinations, explaining that he sometimes found himself talking to a friend, but then realizing that no one is there. He also reported occasionally seeing people in his house standing and looking at him. The Veteran denied loss of appetite, mania, suicidal ideation, risk-taking, indecisiveness, poor hygiene, anger resulting in violence or difficulty managing his money. The examiner reported that the Veteran had symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, impairment of short- and long-term memory, and disturbances of motivation and mood. The Veteran was able to maintain activities of daily living including personal hygiene, self-care and minimal household chores. The examiner opined that the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity. The Veteran was again afforded another VA examination in February 2020. The Veteran at that time denied suicidal and homicidal ideation but endorsed a past history of conflict at work. He reported that he had a bad temper, anxiety, and an agitated mood on a regular basis. The examiner reported that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short- and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner opined that the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity. VA treatment records from January 2017 to February 2020 reflect similar symptoms. In August 2018 correspondence, the Veteran reported that he feels like he is “in a pressure cooker and ready to explode” and has stress, anxiety, and depression. In an April 2019 statement, the Veteran endorsed stress and anxiety from his previous job, including increased agitation and aggression that resulted in him being restrained and handcuffed. He had difficulty getting along with coworkers, including arguing with coworkers and management. He was advised to control his temper or be charged with aggravated assault. He was told by human resources that he would be fired after getting into a verbal altercation with his boss, so the Veteran decided to retire instead. The Veteran also endorsed continued symptoms of audio and visual hallucinations, nightmares, paranoia, suspiciousness, anger outbursts, and self-isolation. Based on the above, the Board finds the Veteran’s PTSD most closely approximates the criteria for a 70 percent rating from June 23, 2015 to November 5, 2016 and since January 1, 2017. Throughout this period, the Veteran has demonstrated symptoms of self-isolation, impaired impulse control with unprovoked irritability and periods of violence, panic attacks, near-continuous depression and anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. Given the Veteran’s reports of self-isolation, impaired impulse control, suicidal ideation, and near-continuous depression, the Board finds that his symptoms during this period caused occupational and social impairment in the areas of work, family relations, and mood. Therefore, after resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD most closely approximates the 70 percent rating. In addressing whether a rating higher than 70 percent is warranted for any portion of the appeal period from June 23, 2015 to November 5, 2016 and since January 1, 2017, the Board concludes that the evidence of record does not support a rating of 100 percent - the highest disability evaluation available - at any time during the appellate period. The evidence does not demonstrate that the Veteran’s symptoms cause both total occupational and social impairment. Moreover, the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. Although persistent hallucinations have been shown, the Veteran has not shown to have gross impairment in thought processes or communication, inappropriate behavior, an inability to perform activities of daily living, or any of the other markers of total occupational and social impairment due to his service-connected PTSD. Regarding occupational impairment, the Board acknowledges that the Veteran has some degree of occupational impairment due to his PTSD is clearly evidenced by the record. Indeed, the Board is granting entitlement to a TDIU, herein. However, a finding that the Veteran’s PTSD causes some degree of occupational impairment does not necessitate a finding of total occupational and social impairment as characterized in the General Rating Formula. Here, there is simply not a showing of psychiatric symptoms that are of similar duration, frequency, and severity that would warrant finding that the Veteran is totally occupationally and socially impaired. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). From June 23, 2015 to November 5, 2016 and since January 1, 2017, the Board finds that a rating of 70 percent, but not higher, for the Veteran’s PTSD is warranted. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. The Board has considered the applicability of the benefit of the doubt doctrine in reaching these conclusions. However, to the extent that the Veteran’s claim for an increased initial rating for PTSD is being denied, the Board finds that the preponderance of the evidence is against a rating higher than that assigned herein. See 38 U.S.C. § 5107 (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU The issue of entitlement to a TDIU due to service-connected PTSD has been raised by the record during the course of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service connected for PTSD only (now rated 70 percent disabling effective from June 23, 2015 to November 5, 2016 and since January 1, 2017). The Veteran thus meets the schedular criteria for a TDIU from June 23, 2015. VA treatment records reflect that the Veteran had difficulty with employment due to his service-connected PTSD. At a mental health visit on June 25, 2015, the Veteran reported that he was placed on a hiatus at his job. Further treatment notes document that the Veteran was forced to go part-time from June 2015 until his retirement, in lieu of firing, in December 2015. He also endorsed problems with working due to his anger outbursts and irritability, including verbal altercations with his coworkers, boss, and human resources, which he attributes to service-connected PTSD. A VA Form 21-8940 Application for Increased Compensation based on Unemployability, dated in April 2019 also reflects that the Veteran dropped out of high school after the ninth grade, and stopped working full-time in July 2015. The Veteran reported that he worked part-time for three to four months before he was forced to retire, in lieu of being fired. In a July 2019 independent vocational assessment report, the vocational consultant noted that the Veteran stopped working full-time in approximately July 2015 but continued to work part-time on an as needed basis until December 2015. The consultant noted the Veteran’s history of verbal and physical altercations with colleagues and the institutionalized youth he was transporting. The consultant also indicated that the Veteran self-isolates and that his paranoia results in a fear of stores and other public places because he is afraid he would have anger outbursts. The Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD. This decision is based on the Board’s review of the cumulative evidence of record, which also includes the VA examination reports and an independent vocation assessment dated July 2019. Given the Veteran’s level of education, his employment history, and his level of disability due to his service-connected PTSD, the Board finds that it is unlikely that the Veteran could secure or follow a substantially gainful occupation consistent with his educational level and occupational experience. It is unlikely that the Veteran would be able to find a work environment that would allow him to miss multiple days due to his fatigue, anger, and psychological effects of his service-connected PTSD. Specifically, the Board finds that the symptoms described by the Veteran, and noted by the examiners, due to his service-connected PTSD render him unable to obtain or maintain substantially gainful employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Therefore, entitlement to a TDIU is granted. There are no additional expressly or reasonably raised issues presented on the record. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.