Citation Nr: 20039992 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 15-14 483 DATE: June 11, 2020 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with dysthymic disorder, is granted. A total disability based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT 1. The Veteran’s PTSD manifested through occupational and social impairment with deficiencies in most areas. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSION OF LAW 1. The criteria for an initial rating of 70 percent for PTSD and dysthymic disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to July 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was last before the Board in June 2018, at which time it was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 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 percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).   1. Entitlement to an initial rating in excess of 50 percent for PTSD and dysthymic disorder. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that “the presence of all, most, or even some, of the enumerated symptoms” is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, “VA must engage in a holistic analysis” of the severity, frequency, and duration of the signs and symptoms of the veteran’s mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula, in pertinent part, a 50 percent is warranted if the Veteran experiences occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent is warranted when the Veteran experiences 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 work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. 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; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). An August 2012 rating decision granted service connection for PTSD and assigned a 50 percent initial rating, effective November 5, 2010. As noted above, in order to warrant a higher rating, the Veteran’s disability would have to be manifested by at least occupational and social impairment with deficiencies in most areas. A November 2011 VA examination reflects that the Veteran was diagnosed with PTSD and dysthymic disorder. The examiner documented the Veteran’s symptoms as: depressed mood; anxiety; panic attacks that occur weekly or less often; and chronic sleep impairment. The examiner indicated 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. 11/08/2011, VA Examination. A June 2012 medical opinion was provided by a VA clinical psychologist who had been treating the Veteran for approximately four years. The treating psychologist noted that the Veteran had been diagnosed with PTSD and dysthymic disorder. The Veteran’s symptoms were described as so severe as to make it extremely difficult for the Veteran to function in public places. Additionally, the Veteran is unable to function effectively in employment and interpersonal situations due to the severe anxiety associated with his PTSD and the depressive symptoms that he experiences on a daily basis. The treating psychologist remarked that the Veteran was only able to find employment in environments that had minimal interaction with others, particularly in night-shift positions. The Veteran’s trauma-related symptoms make it difficult for him to function independently and greatly affect his interpersonal relationships, especially his marriage, and otherwise profoundly affect his quality of life. 06/18/2012, VA 21-4138. The Veteran subsequently submitted a May 1995 letter from a counseling therapist who, at that time, had been treating the Veteran for at least four years. The counseling therapist noted that the Veteran continued to complain of nightmares which routinely disturb his sleep. Additionally, the Veteran had intrusive recollections of his military service in Vietnam, as well as outbursts of rage, often for no apparent reason. Other symptoms included: anxiety; resentment of authority; memory impairment; difficulty maintaining employment; emotional distancing from others, including his wife and children; and situational marital stress. 05/30/2019, VAMC Other Output/Reports. A September 2015 lay statement from the Veteran’s spouse described the stark change in the Veteran’s disposition in his everyday environment, as opposed to during a VA examination. The Veteran’s anger and other trauma-related symptoms causes his family members to avoid him. His spouse described the difficulty in maintaining their 42-year marriage. During the day of a VA examination, the Veteran’s hypervigilance causes him to drive dangerously, causing him to cut other drivers off and at other times become distracted. And, even minutes before an examination, the Veteran is unable to relax, having to leave the waiting room until it was empty. However, during the in-person examination, the Veteran becomes jovial and agreeable. The Veteran’s spouse indicated that the Veteran is unable to fully disclose his symptoms to examiners and therapists, and often limits his disclosures to how he is feeling at the moment, rather than describe the severity of his symptoms while he is in his everyday environment. 09/17/2015, Buddy/Lay Statement. A September 2019 VA examination documented the Veteran’s symptoms as: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in stabling and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner indicated that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner remarked that the most significant impact on his capability for productive employment are his difficulty with anger, irritability, and frustration intolerance. And, the Veteran reported symptoms of hyperarousal, avoidance behaviors, anxiety and panic attack symptoms, specific nightmares, and frequent unwanted intrusive memories of his combat experiences. The examiner opined that the Veteran’s PTSD has a significant impact on his capacity for productive employment, and he would have significant difficulty should he be required to interact with the public. The examiner noted that, during the examination, the Veteran was alert and oriented in all spheres, and demonstrated normal reasoning, problem-solving, and abstraction skills. 09/16/2019, C&P Exam. After review of the competent and probative evidence, the Board finds the Veteran’s PTSD most nearly approximated the criteria for a 70 percent rating throughout the period on appeal. Throughout this period, the Veteran has experienced occupational and social impairment with deficiencies in most areas. Specifically, the Veteran has endorsed suicidal ideation and is unable to function independently due to his daily depression and trauma-related symptoms. Additionally, the Veteran is unable to adapt to stressful environments, having to isolate himself from other people, including family members who avoid him due to his outbursts of anger. The Board places considerable weight on the June 2012 medical opinion, as the clinician treated the Veteran over several years. The Board acknowledges the November 2011 and September 2019 VA examinations. However, these VA examinations are of less probative weight because the Veteran’s noted unwillingness to discuss his symptoms in the context of a VA examination. The lay statement provided by the Veteran’s spouse corroborates and explains the difference in the assessments of severity between the VA examiners and the Veteran’s treating clinicians. Given the above, the Board finds that when viewed against the all of the relevant competent medical and lay evidence of record, the Veteran’s overall disability picture is more nearly approximated by the 70 percent evaluation. The Board also finds that a higher total rating of 100 percent is not warranted, as the competent evidence does not reflect total occupational and social impairment with deficiencies. In this regard, the September 2019 VA examination noted that the Veteran was alert and oriented in all spheres, with normal reasoning, problem-solving, and abstraction skills. Additionally, the record is devoid of suggestion that the Veteran is unable to perform minimal maintenance of personal hygiene, that he has disorientation to time or place, or that he has gross memory loss. The Board finds that the above tends to support occupational and social impairment, but not total occupational and social impairment. The Board finds that the preponderance of the evidence weighs against a higher rating. Therefore, after looking at the totality of the Veteran’s PTSD disability picture, the Board finds that the evidence warrants an initial rating of 70 percent. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.   2. Entitlement to TDIU. TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Generally, to be eligible for a TDIU claim, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). As of this decision, effective November 5, 2010, the Veteran’s service-connected disabilities included: PTSD, evaluated at 70 percent disabling. And, effective August 24, 2012, the Veteran’s service-connected disabilities also included: tinnitus, evaluated at 10 percent disabling; and bilateral hearing loss, evaluated as noncompensable. Additionally, effective November 7, 2016, the Veteran’s service-connected disabilities also included: diabetes mellitus, type II, evaluated at 20 percent disabling. Throughout the period on appeal, the Veteran had one service-connected disability rated at least 60 percent disabling. Therefore, the schedular requirements for TDIU per § 4.16(a) have been met. Moreover, entitlement to TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the Veteran raised the issue of TDIU in a June 2020 brief. 06/03/2020, Appellate Brief. Additionally, the Veteran reported that he has not had consistent paid employment since at least June 5, 2015. 09/16/2019, C&P Exam, page 4. Given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the record raises a claim for TDIU under Roberson and Rice and this issue is before the Board as part of the appeal for a higher initial rating for the service-connected PTSD. Accordingly, the Board finds that TDIU was reasonably raised by the record. After affording him the benefit of the doubt, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities prevented him from securing or following gainful employment. While a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, is not of record, the Board finds that the claim file contains sufficient pertinent evidence to address this matter. If, upon implantation of this grant, the Regional Office needs such a form, request one from the Veteran. In determining whether the Veteran was capable of obtaining and maintaining gainful employment due to his service-connected disabilities, the Board must consider the Veteran’s work history, education, and any special training. See Rice, 22 Vet. App. at 452 (stating that entitlement to TDIU is based on an individual’s particular circumstances). A June 2012 medical opinion indicated that the Veteran is unable to function effectively in employment and interpersonal situations due to the severe anxiety associated with his PTSD and the depressive symptoms that he experiences on a daily basis. The treating psychologist remarked that the Veteran was only able to find employment in environments that had minimal interaction with others, particularly in night-shift positions. The Veteran’s symptoms were described as so severe as to make it extremely difficult for the Veteran to function in public places. 06/18/2012, VA 21-4138. A September 2019 VA examination opined that the Veteran’s PTSD has a significant impact on his capacity for productive employment, and he would have significant difficulty should he be required to interact with the public. The examiner remarked that the most significant impact on his capability for productive employment are his difficulty with anger, irritability, and frustration intolerance. The examiner noted that, while he was employed, the Veteran experienced difficulty with coworkers and management. Moreover, the Veteran’s symptoms are much more likely than not to make him likely to be variable and inconsistent in the workplace. 09/16/2019, C&P Exam. A September 2015 lay statement from the Veteran’s spouse indicated that the Veteran held over 20 jobs over the course of 42 years, most of which were during the night shift wherein he interacted with fewer people. Even in these relatively isolated work environments, the Veteran had issues with anger management. Additionally, the Veteran’s depression and loss of self-esteem contributed to him quitting trade school and otherwise led to employment in custodial work over the last 12 years of his working life. 09/17/2015, Buddy/Lay Statement. Upon review of all lay and medical evidence, and after affording the appellant the benefit of the doubt, the Board finds that the Veteran’s level of disability, given his education, training, and experience, would have rendered it impossible for the average person to obtain or retain substantially gainful employment of some type based solely on his service-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence demonstrates that the Veteran’s service-connected PTSD rendered him unable to function in any occupational setting, given his frequent interpersonal conflicts with coworkers and supervisors due to irritability and angry outbursts. Likewise, the Veteran is incapable of functioning in any public space. And, even in relatively isolated workplace environment’s the Veteran’s trauma-related symptoms make him likely to be variable and inconsistent in the workplace. The Board finds the evidence to be in equipoise with respect to whether the service-connected disability at issue precluded the Veteran from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the appellant’s favor, the Board finds that TDIU on a schedular basis is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.