Citation Nr: 21001320 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-16 844 DATE: January 7, 2021 ORDER Entitlement to a rating of 70 percent disabling for post-traumatic stress disorder (PTSD) with alcohol use disorder is granted. Entitlement to a total disability due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s impairment that results from the Veteran’s PTSD has most nearly resembled occupational and social impairment with deficiencies in most areas. 2. The Veteran’s service-connected disabilities meet the preliminary rating criteria required in 38 C.F.R. § 4.16 and the evidence of record shows the Veteran’s disabilities precluded the him from obtaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130a, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 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 in the United States Marine Corps from September 1964 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2017. The Veteran’s wife, B.F., was present as a witness. A transcript of the hearing is of record. The Board issued a remand in May 2020 instructing the RO to obtain any outstanding treatment records and a VA examination to determine the level of severity of the Veteran’s PTSD. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained new VA treatment records and a September 2020 VA examination. The Board finds the RO substantially complied with the May 2020 remand directives. 1. Entitlement to a rating in excess of 50 percent disabling for PTSD with alcohol use disorder. The Veteran contends that he is entitled to a higher for his service-connected PTSD, because the severity of his symptoms increased. During the March 2017 Board hearing, the Veteran testified that he “got into it” with his foreman and coworkers. The Veteran reported that he was demoted as well and that eventually he felt forced into early retirement at age 62. In addition, VA treatment records from May 2013 to the present showed symptoms that did not warrant a disability rating higher than 50 percent. Specifically, the Veteran was treated for moderate mental health symptoms and his medication was decreased. In February 2011 lay statement, the Veteran’s daughter reported that the Veteran ruminated on negative thoughts which led to avoidant behaviors. She stated that he had a problem with every person he came into contact with; specifically, he became angry and refused to participate in events which led to self-isolation. The Veteran’s daughter stated that the Veteran told her he feared becoming physical. Overall, the Veteran’s daughter described how he was unable to control his anger and had outbursts at times. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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 schedule for rating psychiatric disabilities is under 38 C.F.R. § 4.130, to include PTSD and other acquired psychiatric disorder. This regulation provides a 50 percent rating is warranted 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. Id. 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 worklike setting); inability to establish and maintain effective relationships. Id. 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 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. Id. The Veteran is currently service connected for PTSD with a 50 percent rating effective April 11, 2011. Treatment records from April 2011 to the present showed that the Veteran’s symptoms of PTSD increased in severity. In an April 25, 201l social work note, it was recorded that the Veteran complained of irritability and problems with family issues. Objective findings revealed that the Veteran was alert and oriented, had good eye contact, appropriate hygiene, and had a linear thought process. There was no evidence of psychosis or suicidal ideation. The record indicates that the Veteran continued and increased his use of alcohol. See e.g., April 2015 Social Work Note (SWN) (10 or more beers a day); January 2016 SWN (wife reported that he drunk half a case a day; Veteran not interested in decreasing drinking); March 2016 SWN (drunk 6 to 8 beers in a 4 hour time span); November 2017 Mental Health Note (reluctantly admitted drinking 12 to 14 beers per day); May 2018 Mental Health Note (12 beers per day and no withdraw from alcohol during a 24 hour period without beer). The record also indicates that the Veteran’s irritability and anger increased. See e.g., May 2017 Social Work Note (one meltdown); April 2018 Mental Health Note (anger issues and exploding; assessment: anger issues on a regular basis). During an October 2018 social work visit, the Veteran reported that he an incident where he was bowling and began to get frustrated that he was not playing well. This resulted in him flying off the cork which he described as sitting to himself and not talking to anyone. The Veteran was afforded VA examinations in July 2011 and March 2014. Overall, these examinations show a finding for no more than a 50 percent disability rating. Specifically, the Veteran exhibited symptoms of depressed mood, chronic sleep impairment, flattened affect, intrusive memories, nightmares, avoidance, persistent negative emotional state, feelings of detachment from others, irritable behavior and angry outbursts, exaggerated startle response, sleep disturbance, disturbance 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. There were no reports of suicidal or homicidal ideation. The Veteran submitted a February 2017 PTSD disability benefits questionnaire. The diagnosis of PTSD and alcohol use was confirmed. The physician noted the Veteran’s symptoms of alcohol use disorder to be mostly different from his PTSD. The physician also noted symptoms of depressed mood, anxiety, disturbance of motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting stressful circumstances, including work, and impaired impulse control. The physician opined that the Veteran’s impairment was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and mood. The Board remanded for an updated VA examination to determine the level of severity of the Veteran’s symptoms. He was afforded an examination in September 2020. The examination confirmed the Veteran’s diagnosis of alcohol use disorder and PTSD. The examiner noted that it was not possible to differentiate the symptoms attributable to each diagnosis. She explained that while the majority of symptoms were explained by the PTSD, his daily alcohol uses likely aggravated depressive symptoms and contributed to sleep disruption so there are overlapping symptoms and effects making full delineation impossible without resorting to speculation. The examiner opined that the Veteran’s level of impairment was best summarized as occupational and social impairment with deficiencies in most areas. Accordingly, the Board finds that the evidence of record warrants a 70 percent rating disability. The treatment records indicate that the Veteran’s level of severity with irritability, anger, and nightmares gradually increased. His relationships with friends and family, including his wife, became more and more difficult to maintain. A higher rating 100 percent is not warranted because the Veteran does not have total social impairment. However, his occupational impairment warranting a total rating based on unemployability is discussed below. 2. Entitlement to TDIU. The Veteran contends his disabilities have precluded him from securing and following substantially gainful employment. During the March 2017 hearing, he recounted that he experienced several disagreements with coworkers at his last job including one physical incident that involved bumping chests with a coworker. He was constantly worried about harassment at work. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by Director when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to Director is so warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran can secure or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran is currently service connected for PTSD with alcohol use disorder with a rating of 70 percent rating and diabetes mellitus with a 20 percent rating. Pursuant to 38 C.F.R. § 4.25, the Veteran’s combined evaluation for compensation is rounded up to 80 percent. Therefore, the preliminary rating criteria under 38 C.F.R. § 4.16 for TDIU is satisfied. The record indicates that the Veteran retired early as a result of his PTSD. March 2011 Mental health evaluation (last job exacerbated his PTSD symptoms; retired); March 2017 Social Work Note (irritability was a factor in leading an early retirement). (Continued on the next page)   During VA examinations, the Veteran consistently stated that his company consolidated or merged and he was demoted. His inability to control his anger ultimately led to his early retirement. See e.g., July 2011 VA examination (not going to take orders, inappropriate behavior; poor social interactions); March 2014 VA examination (unpleasant interactions with bosses and co-workers); September 2020 VA examination. Considering the Veteran’s service-connected disabilities cumulatively, the probative evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. As such, the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.