Citation Nr: 20037578 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 11-06 809 DATE: June 2, 2020 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 1, 2018 is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s symptoms during the appellate period do not more closely approximate total occupational and social impairment. 2. The Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities prior to November 1, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 70 percent for PTSD have not 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 are met for a TDIU prior to November 1, 2018. 12, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1969 and from January 1971 to February 1973. This appeal rises before the Board of Veterans’ Appeals (Board) from a May 2009 rating decision in which the Department of Veteran Affairs (VA) Regional Office (RO) granted service connection and assigned a 30 percent rating for PTSD, effective May 8, 2008. In August 2014, the Board granted a 70 percent initial evaluation for PTSD, and remanded the issues of entitlement to an initial evaluation in excess of 70 percent to PTSD, entitlement to TDIU, and entitlement to a total and permanent disability rating for further development. In January 2018, the case was returned to the Board for appellate review. The Board remanded the Veteran’s claim for entitlement to an initial rating for PTSD in excess of 70 percent. Specifically, the Board found that the Veteran’s November 2014 VA examination was inadequate and that the Veteran was entitled to an additional VA examination. The AOJ was also required to obtain any outstanding VA and Veteran Center treatment records. Following the Board remand, the AOJ complied with the Board directives from the January 2018 remand and continued the Veteran’s 70 percent initial rating for PTSD and awarded the Veteran a TDIU, effective November 1, 2018, in a January 2020 rating decision. As such, the appeal is again before the Board and will be adjudicated below. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran contends that an evaluation in excess of 70 percent for his PTSD is warranted. The Veteran seeks a rating in excess of 70 percent for his service-connected PTSD, currently rated under Diagnostic Code 9411. The Veteran was granted service connection for PTSD, effective May 8, 2008; thus, the Board must consider all evidence from May 2008 to the present to determine whether a higher disability rating is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, otherwise the lower rating will apply, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is rated at 70 percent disabling for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders (General Rating Formula), a 70 percent rating is warranted 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); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name). Id. The Veteran submitted treatment reports from the VA medical center and VA outpatient clinic. The reports showed that the Veteran was diagnosed with and treated for PTSD. The reports further noted that the Veteran experienced symptoms which included anxiety, depressed mood, irritability, insomnia, and a constricted affect. The reports provided that there were issues with the Veteran’s compliance regarding treatment for the Veteran’s mental health condition. In 2008, the Veteran submitted lay statements from family members and friends which verified that he was experiencing hypervigilance and irritability on a daily basis. In a letter submitted in October 2008, the Veteran’s spouse observed that he was on guard day and night, had nightmares and night sweats when he slept, became highly irritated by the phone ringing because he associated calls with bad news, had no friends, refused intimate relations, did not like leaving the house, sat with his back to the wall in public, exhibited obsessive behaviors, and was easily started by helicopters, sirens, thunder, and fireworks. In a March 2009 VA examination, the examiner noted that the Veteran’s appearance and behavior were appropriate, but that his mood was anxious. The examiner found that the Veteran’s PTSD was characterized by episodes of violence, upsetting memories triggered by cues, nightmares, attempts to avoid thinking or talking about trauma, detachment, a vague sense of foreshortened future, sleep impairment, irritability, anger, fluctuating concentration, hypervigilance, and a startle response. The examiner noted that the Veteran’s thought processes, and content were normal, there were no abnormalities of speech or memory loss, and there was no evidence of delusions, hallucinations, suicidal ideation, or homicidal ideation. In April 2010, the Veteran reported being nervous around noise from sirens and helicopters, disliking visitors and phone calls, feeling hypervigilant in public, and experiencing survivors’ guilt. In a March 2011 statement in support of claim, the Veteran reported suffering on a daily basis from flashbacks, insomnia, hypervigilance, major depression, mood swings, anxiety, fear of leaving his home and being around other people in crowds, and OCD (such as feeling compelled to count things, hand washing, making sure things are lined up correctly. Based on the above evidence, the Veteran was awarded an initial rating of 70 percent for PTSD by the Board in an August 2014 Board decision. The Board concurrently remanded the Veteran’s PTSD claim for a new VA examination. In November 2014, the Veteran was afforded a VA examination. The examiner found 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 found that the Veteran had other symptoms attributable to PTSD, but she did not identify any such symptoms. Based on this VA examination, the Board once again remanded the Veteran’s PTSD claim in January 2018 for a new VA examination in order to adequately evaluate the Veteran’s PTSD. The Veteran was afforded another VA examination in November 2018. The examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he lived with his wife of 27 years, and that he was able to relate “pretty good” with his wife, children, and stepchildren. The Veteran reported that his wife had been diagnosed with Parkinson’s and as such, he was helping his wife around the house by vacuuming and doing the dishes. The Veteran discussed his current employment situation. He reported that he was last employed in 1994 performing maintenance work at a university. He was employed in that capacity for 7 years prior to incurring a neck injury on the job. Prior to that, the Veteran reported being employed at Home Depot for a year but reported leaving after getting into an argument with his boss. He elaborated that it was a stressful job as he was in charge of multiple departments, answering the phone, as well as taking care of customers. The Veteran reported that he began receiving SSDI in 1995. The Veteran reported that in March 2018 he was hospitalized due to a gall bladder infection. While in the hospital the Veteran was surprised that a friend from work visited the hospital. The Veteran also discussed leaving the home once a week to go to the store, but otherwise found it difficult to get dressed and frequently slept until noon or one in the afternoon. In a brief suicide screen from October 2018 that was cited by the examiner, the Veteran answered that he had not attempted suicide or heard voices telling him to harm himself. The Veteran did report getting into a verbal altercation with someone cleaning his neighbors’ yard recently. The examiner determined that the Veteran had the following symptoms: recurrent distressing dreams related to the Veteran’s traumatic event, avoidance of or efforts to avoid external reminders of the event, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, and sleep disturbance. The examiner opined that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner also noted the following additional symptoms: depressed mood, anxiety, suspiciousness, 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 worklike setting. At the examination, the Veteran was casually dressed with good hygiene. He was fully oriented, and cooperative throughout the examination. His affect appeared euthymic and congruent with the reported mood. His thought processes were organized, and speech was coherent. There was no evidence of psychosis. He denied suicidal or homicidal ideation, intent, or plan. He appeared to have good insight and judgment. The Board finds that the Veteran’s symptoms are not so severe as to cause total social and occupational impairment due to his symptoms of PTSD, and therefore, a higher rating is not warranted. The Board notes that the Veteran has not been employed since 1994 due to separate non-service-connected disabilities; however, examiners have opined that the Veteran would likely experience deficiencies in a work environment. The Board also notes that the Veteran’s disability causes significant social impairment as he has endorsed difficulties in social settings and a general dislike for leaving his house, as well as a lack of friendships or social relations. However, the Board does not find that these difficulties rise to the level of total occupational and social impairment, as the Veteran has been able to attend VA and private mental health treatment facilities for treatment, has been able to maintain his marriage, relationship with his children and stepchildren, and has maintained acquaintanceships as seen in the multiple buddy statements submitted to VA. The Board finds that these difficulties are duly contemplated by the current 70 percent disability rating currently assigned. Further, the Veteran has not exhibited any violent or dangerous behavior towards others, nor has he had psychotic behaviors such as delusions or hallucinations. While the examiner in the March 2009 VA examination found that the Veteran exhibited some violent behavior, in his most recent 2018 examination, the Veteran reported maintaining relationships with his wife, children, and stepchildren, and was not reported to experience violent behavior. At most the examiner found the Veteran experienced angry outbursts in relation to his irritability. Significantly, the Veteran has not endorsed homicidal or suicidal ideation during the appellate period. Thus, the overall evidence does not show that the Veteran is a persistent danger of hurting others or himself. The Veteran has not reported nor have any medical records documented an increased level of forgetfulness or a lack of hygiene. His symptoms, including depression, anger, irritability, sleep disturbances, and intrusive thoughts are fully captured by the current 70 percent disability rating. The Veteran has not exhibited symptomatology of the frequency, severity, and duration contemplated by a greater 100 percent disability rating for PTSD. In light of the above, the Board finds that the Veteran’s PTSD symptoms, though serious, demonstrate a level of functionality not contemplated by the criteria for a 100 percent rating because they do not indicate total occupational and social impairment. Accordingly, as the preponderance of the evidence is against the claim, a rating in excess of 70 percent for PTSD is not warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 1, 2018 The Veteran has asserted that he is not able to maintain gainful employment due to his service-connected PTSD. When evidence of unemployability is submitted during the course of an appeal for an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, there was evidence of record that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected PTSD. The AOJ granted the Veteran’s TDIU claim with an effective date of November 1, 2018. As such, the question for the Board is whether the Veteran is entitled to a TDIU prior to November 1, 2018. A Veteran may be awarded a TDIU upon a showing that she is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total 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). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). As the TDIU claim is part and parcel of the increased rating claim for PTSD, the period on appeal is from May 8, 2008 to November 1, 2018. The Veteran’s service-connected disabilities during this period included PTSD (70 percent from May 5, 2008), bilateral tinnitus (10 percent from May 4, 1982), and bilateral hearing loss (0 percent from February 6, 1973). The schedular requirements for a TDIU were met as of May 8, 2008. As such, for the period of May 8, 2008 through November 1, 2018, the Board will consider whether the Veteran was unemployable due to the combined functional impact of his PTSD, tinnitus, and hearing loss. The Veteran has reported his occupational history as: assembly line worker at Ford Motor Co., aircraft parts assembly line, power tool repair, maintenance carpenter at Jacksonville University, and is currently retired. He has also reported that he has a high school education with 2 years of college. See September 2014 Capri (Occupational Medicine Note); November 2014 VA Examination; SSA Records. The Veteran stopped working at his last job, at Jacksonville University, due to an injury after falling off of a ladder. See November 2014 VA Examination. Currently, the Veteran supports himself on social security benefits and does not work. Id. During the period on appeal, the Veteran has reported that his ears ring all the time, day and night, and that the ringing “drives him nuts,” in addition to occasionally interfering with his sleep. See May 2008 Lay Statement. He has described generally feeling nervous and upset by loud noises, and disliking visitors or talking on the phone. The Veteran has submitted lay statements which outline the Veteran’s daily hypervigilance and irritability. See February 2008 Buddy Statement; April 2008 Buddy Statement; October 2008 Buddy Statement. In a March 2009 VA examination, the examiner noted that the Veteran’s appearance and behavior were appropriate, but that his mood was anxious. The examiner found that the Veteran’s PTSD was characterized by episodes of violence, upsetting memories triggered by cues, nightmares, attempts to avoid thinking or talking about trauma, detachment, a vague sense of foreshortened future, sleep impairment, irritability, anger, fluctuating concentration, hypervigilance, and a startle response. In a March 2011 statement in support of claim, the Veteran reported suffering on a daily basis from flashbacks, insomnia, hypervigilance, major depression, mood swings, anxiety, fear of leaving his home and being around other people in crowds, OCD (such as feeling compelled to count things, hand washing, making sure things are lined up correctly), chronic pain in his shoulder, legs, back, and chest, and headaches and pain in his neck and jaw. The Veteran was awarded Social Security benefits in 2011. At a hearing regarding his Social Security benefits, the Veteran testified that he was unable to look at a computer screen because it becomes blurry and because he has obsessive compulsive disorder. He further testified that he was depressed because he used to be very athletic; he used to run, work out, swim, and work on his car. However, he stated that he was unable to sleep and had PTSD, and that he sleeps for maybe an hour a night but otherwise was not really able to sleep. He indicated that he compensated for this by taking naps throughout the day. He stated that he had flashbacks about Vietnam. The Veteran also testified that he had very bad short-term memory and had to read something about ten times before he could understand it. Ultimately, the Social Security benefits adjudicator determined that the Veteran was mentally unable to perform any type of work activities at any level of exertion at a pace acceptable for competitive employment. The Veteran’s depression imposed mild restrictions of activities of daily living, mild difficulties in maintaining social functioning and deficiencies of concentration, persistence and pace with no episodes of decompensation. In sum, the adjudicator found that the Veteran’s combined impairments precluded him from performing even simple unskilled non-physical work activities on a sustained basis for 8 hours a day, 5 days a week, or an equivalent work schedule. In a November 2014 VA examination, an examiner described the Veteran’s level of occupational and social impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability ot perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self -care, and conversation. At that time, the Veteran endorsed symptoms of depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, 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, inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities. When the examiner discussed the Veteran’s occupational functioning with him in detail, he self-reported frequent fighting at work in his past, but also reported that he was able to maintain employment steadily at the aircraft engine parts factory for 14 years. He reported steady and gainful employment at Jacksonville University for 7 years, where he reportedly stopped working due to a work-related injury. His work stoppage was due to physical problems, and did not have anything to do with problems related to PTSD. The Veteran did self-report obsessive thoughts, which the examiner found could impair the occupational functioning of the Veteran by interfering with efficient performance of assigned work tasks. After consideration of the record, the Board finds that the Veteran would not be able to maintain gainful employment in a non-physical or physical work environment for the entire period on appeal. Throughout the period on appeal, the Veteran has reported symptoms of depression, anger, irritability, sleep disturbances, and intrusive thoughts. He has further noted that the PTSD and ringing in his ears cause him difficulty to the point he cannot sleep and that he has to compensate by napping throughout the day. The Board notes that these symptoms would impair the Veteran’s ability to work in any environment, whether it was a non-physical or physical place of employment. In addition to his PTSD symptoms, the Veteran’s hearing condition would not support safe employment in the settings the Veteran has experience working in, such as factories or other industrial settings. The Board places high probative value on the Veteran’s statements of his symptoms throughout the period on appeal as the Veteran’s statements have remained the same or documented an increase in severity throughout the 10 year period from 2008 through November 2018. The Board also places weight on the medical evidence of record which supports the finding that the Veteran would not be able to work due to his PTSD symptoms. See November 2014 VA Examination (finding that the Veteran’s obsessive thoughts could impair the occupational functioning of the Veteran by interfering with efficient performance of assigned work tasks). That the Veteran would be unable to maintain gainful employment is also supported by the fact that he was awarded SSA benefits in part due to his PTSD and obsessive behaviors in 2011. See SSA Records (determining that the Veteran was mentally unable to perform any type of work activities at any level of exertion at a pace acceptable for competitive employment). Given the restrictions on his employability, and resolving any doubt in favor of the Veteran, the Board finds that the effects of the manifestations of the Veteran’s service-connected disabilities are sufficiently incapacitating as to result in unemployability in light of the severity of his symptoms, occupational history, and experience. In sum, having carefully considered the Veteran’s contentions, his education and employment background, and all of the limitations imposed on him as a consequence of his service-connected disabilities, and resolving all doubt in the Veteran’s favor, the Board finds that the criteria for entitlement to a TDIU have been met for the period from May 8, 2008 to November 1, 2018. See 38 C.F.R. §§ 4.16(a), (b). See also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.