Citation Nr: 21001704 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-46 490 DATE: January 11, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for an acquired psychiatric disorder, to include PTSD, Bipolar Disorder, Cannabis Use Disorder, Opiod Use Disorder, with Alcohol Use Disorder, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU), is granted. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder has been manifested by occupational and social impairment in most areas; It has not been manifested by total occupational and social impairment. 2. The Veteran is unable to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent, but no higher, for an acquired psychiatric disorder, to include PTSD, Bipolar Disorder, Cannabis Use Disorder, Opiod Use Disorder, with Alcohol Use Disorder, have 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 for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 3.340, 3.341, 4.15, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to March 1975. He appeals a March 2017 rating decision granting entitlement to service connection for PTSD, bipolar disorder, cannabis use disorder, opioid use disorder, with alcohol use disorder, with a 50 percent evaluation. In January 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. A separate appeal regarding the issue of entitlement to TDIU is pending in under the AMA system and will be addressed in a future rating decision. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, “[w]here 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. 1. Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, Bipolar Disorder, Cannabis Use Disorder, Opiod Use Disorder, with Alcohol Use Disorder. As mentioned, the Veteran is currently in receipt of a 50 percent disability rating. He contends that his symptoms most accurately approximate to a 70 percent rating. After review of the evidence, the Board finds that an initial rating of 70 percent, but no higher, is warranted. The Veteran’s PTSD and associated psychiatric disorders are evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders. Under these rating criteria, 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. 38 C.F.R. § 4.130, DC 9434. 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. Id. 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. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court of Appeals for Veterans Claims (Court) also pointed out in that case, “[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Regarding the current claim, the Veteran was originally afforded a VA examination in February 2017. His diagnoses at the time included PTSD, Bipolar II disorder, cannabis use disorder, opioid use disorder, and alcohol use disorder. Although the examiner found it possible to differentiate what symptoms belonged to which diagnosis, it was noted that symptoms from one disorder initiate, maintain and/or reinforce symptoms from the other disorders. In totality, the examiner found that the PTSD, bipolar disorder, and cannabis use disorder caused social and occupational impairment with reduced reliability and productivity. Symptoms of his overall mental condition were noted as depressed mood, anxiety, chronic sleep impairment, mild memory loss, 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 noted that the Veteran enjoys riding his motorcycle when healthy and maintains a relationship with his children. The Veteran did admit that emotional problems had interfered with occupational functioning in the past. Specifically, he reported significant temper control problems, to include two fist fights with former coworkers. The Veteran also submitted a private mental health evaluation from October 2017. The examiner held serious reservations about the validity of the Veteran’s bipolar diagnosis, instead opining that the Veteran’s symptoms are solely attributable to PTSD and associated residuals. Regarding the Veteran’s symptoms, the examiner found that the Veteran suffered from frequent unwanted memories and nightmares, had pronounced and severe hypervigilance with a severe startle response, had occasional dissociative thoughts, felt that people were reading his mind at times and took steps to prevent this, endorsed feeling that the world was a dangerous place where he feel threatened, had a constant feeling of doom, had moderate focus and concentration problems – to include occasional disorientation to time and place – and had a loss of interest in usual activities with a persistent inability to feel positive emotions about half the time. Overall, the examiner felt that the Veteran exhibited prominent PTSD symptoms with deficiencies in most areas, to include judgement, thinking, mood, and establishing and maintaining effective relationships. The examiner further noted that the Veteran had a consistent history of unprovoked irritability with periods of violence, to include one recent episode. In combination, the Board finds that the February 2017 VA examination and the October 2017 private mental health evaluation suggest that the Veteran has had occupational and social impairment in most areas throughout the period on appeal. He is hypervigilant and prone to violent outbursts, feels threatened by others, and feels a constant sense of doom. Furthermore, he has reported dissociative tendencies, to include occasional disorientation to time and place. Based on the symptomatology of record, the Board finds that the Veteran’s PTSD most closely approximates the criteria for a 70 percent rating. However, the Board concludes that the Veteran’s PTSD symptoms have not manifested to a degree so severe as to warrant a 100 percent rating. Indeed, the Veteran is able to maintain positive family relations and participates in at least a few hobbies, such as reading and riding his motorcycle when he can. He has never endorsed hallucinations or delusions, is not a persistent danger to himself, and is capable of attending to activities of daily living. Therefore, total occupational and social impairment due to his PTSD has not been shown. To summarize, the Board concludes that the Veteran has met the criteria for a 70 percent rating, but no higher, throughout the period on appeal. To this extent, the claim is granted. 2. Entitlement to TDIU. After careful review of the claims file, the Board finds that the issue of entitlement to TDIU has been raised. In addition, the Board finds that the combined effects of the Veteran’s disabilities render him unable to obtain or maintain substantially gainful employment. Entitlement to TDIU is part and parcel of any claim for increased evaluation when raised by the record or personally by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). Here, the Veteran filed a formal claim for entitlement to individual unemployability during the pendency of this appeal. Hence, the Board finds that entitlement to TDIU has been raised as part of the increased rating claim on appeal. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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). Here, per the above Order, the Veteran is in receipt of a 70 percent initial rating for his PTSD. Thus, the threshold requirement for TDIU on a schedular basis have been met. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2018). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed to Board to consider the following factors: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58 (2019). As an initial matter, the Board notes that the Veteran is service-connected for the following disabilities: PTSD and associated psychiatric disorders, right knee limitation of flexion, right knee limitation of extension, right knee instability, residuals of gunshot wound to the right knee, and scars associated with the right knee gunshot wound. The Veteran previously worked as an iron worker but has not had fulltime employment since 1998. He reports that he attempted to return to work in 2000, but only lasted a week. Records show a spotty educational history. The Veteran reports not graduating from high school but successfully completing his GED in service. He attempted post-service education but was ultimately unsuccessful. The record does not indicate that the Veteran has any other specialized skill or training. The evidence does not indicate that the Veteran’s physical or mental disabilities, when considered alone, render him unemployable. However, when considered in combination, the evidence does indicate that the Veteran’s service-connected PTSD and right knee conditions prevent him from obtaining and maintaining substantially gainful employment. For example, at his June 2017 VA examination, it was noted that the Veteran could only walk about 100 yards even when assisted by a cane, could only climb one step at a time, required the use of a motorized chair in order to shop, and had difficulty simply getting out of his car. The examiner observed that the Veteran’s right knee disability interfered with repetitive movements in either a physical or sedentary environment. As described above, the Veteran’s psychological disability further hinders his ability to work. Specifically, he feels threatened by others and is prone to violent outbursts. Of particular note, he reported getting into physical altercations with coworkers on multiple occasions. Based on the foregoing, the Board finds that the Veteran is not able, physically or mentally, to obtain or maintain substantially gainful employment—to include physical or sedentary employment—due to his service-connected disabilities. Accordingly, entitlement to TDIU is granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel