Citation Nr: 21001034 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-59 441 DATE: January 6, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted for the entire period on appeal (i.e., since September 12, 2014 and not just instead since June 4, 2019). Entitlement to a total disability rating based on individual unemployability (TDIU) also is granted. FINDINGS OF FACT 1. For the entire period on appeal (not just since June 4, 2019), the Veteran's PTSD has caused occupational and social impairment with deficiencies in most areas. 2. The evidence also is at least in relative equipoise regarding whether his service-connected disabilities (PTSD, bilateral hearing loss and tinnitus) preclude him from obtaining and maintaining substantially gainful employment when considering his level of education, prior work experience and training.   CONCLUSIONS OF LAW 1. The criteria are met for a 70 percent rating for the PTSD for the entire period on appeal (not just since June 4, 2019). 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126-4.130, Diagnostic Code (DC) 9411 (2018). 2. The criteria also are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19 (2018) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to September 1970. This appeal to the Board of Veterans’ Appeals (BVA) is from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in part, granted service connection for PTSD and assigned an initial rating of 30 percent retroactively effective from September 12, 2014, so back to the date of receipt of the Veteran’s claim for service connection for this mental disorder. He appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999) (indicating that, in this circumstance, VA adjudicators must consider whether to “stage” the rating – meaning assign different ratings since the effective date of the award if there have been occasions when the disability has been more severe than at others). This “staging” of the rating since has occurred because, in an August 2019 rating decision since issued during the pendency of this appeal, the RO increased the rating for the Veteran’s PTSD from 30 to 70 percent – but only retroactively effective as of June 4, 2019. So that rating increase did not go all the way back to the effective date of the initial rating (i.e., back to September 12, 2014), in turn, meaning this appeal now concerns whether rating higher than 30 percent was warranted prior to June 4, 2019 (i.e., from September 12, 2014 to June 3, 2019) and whether a rating higher than 70 percent has been warranted since June 4, 2019. Receipt of a higher rating, but less than maximum possible rating (and for the entirety of the appeal period), does not abrogate a pending appeal unless the Veteran expressly indicates he is satisfied or content with the new rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). On his November 2017 Substantive Appeal to the Board (on VA Form 9), the Veteran requested a hearing before the Board. His hearing resultantly was scheduled for in October 2020, but he contacted the Board prior to that date and indicated he no longer wanted a hearing. His representative, instead, submitted a legal brief in September 2020 in lieu of the hearing. Entitlement to a higher rating for the PTSD both prior to and since June 4, 2019 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, as already alluded to, if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under the General Rating 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, cause the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).  A 30 percent rating is warranted when there is 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 conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). 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. See 38 C.F.R. § 4.130, DC 9411. Here, the Veteran’s PTSD provider, Dr. Anderson, offered supporting statements in December 2014 and June 2019 affirming the Veteran experiences suicidal ideation, panic attacks, flashbacks, and difficulty trusting others, all related to his PTSD. The Veteran offered a March 2015 statement that his symptoms cause memory problems and angry, sometimes violent outbursts, which repeatedly impacted his job and relationships. He believes his first marriage ended because of these symptoms. In November 2017, he added that he has hallucinations, suicidal ideation, memory loss, and occasional hygiene problems. The record reflects individual PTSD treatment notes and group therapy records from November 2018 through May 2019 documenting these symptoms.   During his August 2019 VA PTSD examination, the Veteran displayed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, with symptoms including depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function, chronic sleep impairment, mild memory loss with impairment of short term memory, difficulty understanding complex commands, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and suicidal ideation. These symptoms are consistent with a 70 percent disability rating, so with the rating he has had effectively since June 4, 2019). See 38 C.F.R. § 4.130, DC 9411. When asked to describe his functional limitations, he identified needing assistance shopping, cooking, managing medications, and completing housework. He did not, however, evidence the total occupational and social impairment required for a 100 percent rating. That notwithstanding, the evidence is at least in relative equipoise, if not more favorable to the claim, in establishing that the Veteran’s PTSD has caused what has amounted to occupational and social impairment with deficiencies in most areas since September 2014 when he filed his claim of entitlement to service connection for this mental disorder. The record is replete with suggestion of suicidal ideation, weekly panic attacks, and memory impairment for the entire period under review. His treatment records reflect that his impairment level and symptoms did not worsen between September 2014 and June 2019 to justify rating his PTSD as only 30-percent disabling prior to June 4, 2019 and, instead, as 70-percent disabling only since June 4, 2019. Rather, he has experienced the virtually the same level of impairment and symptomology throughout the period under review, so since filing his claim on September 12, 2014. As such, the Board finds sufficient evidence to justify granting the higher 70 percent rating for his PTSD for the entire period under review, so since September 12, 2014 (rather than just since June 4, 2019).   Although the Veteran’s symptoms are severe and show a high level of impairment, the Board finds there is insufficient evidence to grant an even higher 100 percent rating since they must be totally disabling from both occupational and social standpoints. In making this determination, the Board is mindful that an evaluation under § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The symptoms listed in DC 9411 are not exhaustive, but rather "serve as [mere] examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Symptoms commensurate with a 100 percent rating under DC 9411 include gross impairments, persistent danger of harming himself or others, and memory loss of own name, names of close relatives, or employment. Although the record reflects impairments, passive thoughts of self-harm, and memory loss, the record does not show the required total occupational and social impairment needed for a 100 percent rating. Entitlement to a TDIU The representative’s rather recent September 2020 brief argues the Veteran is additionally entitled to a TDIU, and that the RO failed in its duty to assist the Veteran by not notifying him he could apply for a TDIU or raising this issue on its own accord based on the evidence of record. The determinative issue in a TDIU case is whether the Veteran's service-connected disabilities, alone, preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits him to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Moreover, in Rice, the Court recognized that a TDIU claim is part and parcel (so derivative) of an increased-rating claim if the disability concerning which the Veteran is requesting a higher rating is at least one of the reasons he is unemployable. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.      A TDIU may be assigned by the Board in the first instance when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities – provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or those affecting both upper extremities or both lower extremities or a single bodily system are considered as one, collective disability. 38 C.F.R. § 4.16(a). The Veteran has the following service-connected disabilities and corresponding ratings for them: PTSD, rated at 70 percent; bilateral hearing loss, rated at 30 percent; and tinnitus, rated at 10 percent. His combined rating is 80 percent. See 38 C.F.R. § 4.25 (VA’s Combined Ratings Table). Therefore, the § 4.16(a) schedular criteria for TDIU consideration are met.   On March 14, 2019, so during the pendency of this appeal, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U. S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Here, when considering all the relevant evidence of record, the Board finds that it is at least in relative equipoise on the question of whether the Veteran is unable to work in a substantially gainful capacity as a result of his service-connected disabilities. As already discussed, the Veteran’s PTSD causes him significant functional limitations that – including significant occupational impairment, even if not “total” occupational impairment (aside from total social impairment) that is necessary for a 100 percent schedular rating for his PTSD. But, notably, unlike a 100 percent schedular rating for PTSD, a TDIU requires less than “total” occupational impairment. Use of the word “substantially” in the TDIU context suggests intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable like contemplated for a 100 percent schedular rating for PTSD (i.e., “total” occupational impairment). See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).   Records show the Veteran was employed as a truck driver for a furniture company for approximately 30 years, so for quite a long time, but he is now unemployed. He has weekly panic attacks, near-continuous panic or depression affecting his ability to function, mild memory loss with impairment of short-term memory, difficulty understanding complex commands, and difficulty establishing and maintaining effective work and social relationships. These symptoms have demonstrably interfered with his personal and professional relationships. During his August 2020 VA PTSD examination, he reported having physical stress reactions, including shaking, raised heart rate, and sweating when he encounters stressful situations. He explained these symptoms present significant psychosocial barriers to his ability to function in daily life. The Veteran is also service connected for bilateral hearing loss and tinnitus. His January 2015 VA hearing loss examination noted that he has significant difficulties hearing and understanding conversational speech. His August 2017 treatment notes reflect the same. In sum, the record establishes that this Veteran, who struggles daily with panic attacks, flashbacks, and memory loss, also has serious difficulties understanding basic conversation. He reports that these symptoms have caused him problems at work (when he worked) due to angry outbursts and contributed to his divorce. Generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 4.1, 4.15. In other words, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consequently, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. Here, when considering the Veteran's physical limitations owing to his hearing loss and tinnitus disabilities and the additional mental limitations owing to his PTSD, the Board finds the evidence shows that, for all intents and purposes, he is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.