Citation Nr: 21002846 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 11-27 283 DATE: January 15, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD), prior to July 24, 2020, is granted. Entitlement to a disability rating in excess of 70 percent for service-connected PTSD from July 24, 2020 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 24, 2020 is granted. FINDINGS OF FACT 1. Prior to July 24, 2020, the Veteran’s service-connected PTSD was manifested by suicidal ideation, near-continuous panic or depression affecting the ability to function independently, impaired impulse control, neglect of personal appearance and hygiene, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships; resulting in occupational and social impairment in most areas. 2. From July 24, 2020, the Veteran’s service-connected PTSD was manifested by near-continuous panic or depression affecting the ability to function independently, circumlocutory speech, impaired judgment and impulse control, neglect of personal appearance and hygiene, intermittent inability to perform activities of required of daily living, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships; resulting in occupational and social impairment in most areas, but not total occupational and social impairment. 3. Prior to July 24, 2020, the Veteran was rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to July 24, 2020, the criteria for entitlement to a disability rating of 70 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.126, 4.130, Diagnostic Code 9411. 2. From July 24, 2020, the criteria for entitlement to a disability rating in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for TDIU prior to July 24, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1968 to February 1970. By way of background, these matters were previously before the Board of Veterans’ Appeals (Board) most recently in January 2020, at which time the Board remanded the issue of entitlement to a disability rating in excess of 50 percent for service-connected PTSD, as well as the issue of entitlement to a TDIU, to the agency of original jurisdiction (AOJ) for further development. A review of the record shows substantial compliance with the Board’s January 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (2011). While on remand, the RO granted an increased rating of 70 percent for PTSD and entitlement to a TDIU, both effective July 24, 2020. Concerning the increased rating claim, as the award of the staged 70 percent rating for PTSD does not constitute a full grant of the benefits sought, that issue is still on appeal before the Board. Ab v. Brown, 6 Vet. App. 35 (1993). With respect to the claim for entitlement to a TDIU, the award of a TDIU effective July 24, 2020 is a full grant of the benefits sought as to that issue from that date forward. Id. As such, the Board will not address the issue of entitlement to a TDIU from July 24, 2020 forward. However, the claim for a TDIU is part and parcel of the Veteran’s claim for an increased rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). As a TDIU has not been granted for the entirety of the appellate period for the increased rating claim, the grant does not bifurcate the TDIU issue. Harper v. Wilkie, 30 Vet. App. 356, 359–62 (2018). Therefore, the issue of entitlement to a TDIU prior to July 24, 2020, remains on appeal. 1. Entitlement to an increased rating for PTSD. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably discerned, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms satisfying the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Psychiatric disorders are rated under the General Rating Formula for Mental Disorders, which provides, in pertinent part, that mental disorders are to be rated under 38 C.F.R. § 4.130, as follows: 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/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 an 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 oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or name. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that impacts occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the time of the examination. 38 C.F.R. § 4.126. When determining the appropriate disability evaluation to assign, the Board’s primary considerations are a veteran’s symptoms and how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms and that a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt that may remain is to be resolved in favor of the veteran. 38 C.F.R. § 4.3. Here, the Veteran contends that his service-connected PTSD has worsened since the initial assignment of the 50 percent disability rating in an April 2008 rating decision. See VA Form 21-4138, Statement in Support of Claim, dated March 12, 2009; see also Rating Decision dated April 21, 2008. He maintains that his PTSD causes severe headaches, vivid flashbacks, and mood swings. See Correspondence dated June 30, 2009. In his September 2013 Board hearing, the Veteran testified that his PTSD manifested in symptomatology including multiple crying spells per week, triggered by various reminders of trauma, as well as a tendency to self-isolate from family members and friends, difficulty concentrating, short-term memory loss, outbursts of anger, great difficulty sleeping, and an erratic sleep schedule. See Hearing Transcript dated September 17, 2013 at 3-7. Additionally, various family members and friends have provided VA with lay statements attesting to the severity of the Veteran’s PTSD symptoms. Turning to medical evidence, the record indicates that the Veteran has undergone several VA psychological examinations, in addition to furnishing evaluations from private practitioners, for the period on appeal. In a March 2008 PTSD examination, the Veteran was noted to exhibit psychiatric symptoms including “intermittent depressive symptoms” such as a tendency to self-isolate and occasional suicidal ideation. See VA examination dated March 3, 2008. The Veteran furnished medical treatment records from a private clinician who personally assessed the Veteran in April 2009. In pertinent part, the clinician documented that the Veteran’s PTSD manifested in symptomatology including grossly inappropriate behavior, avoidance of eye contact, affect and mood indicative of a near-continuous depressed state, slowing of thought processes, impaired attention and/or focus, difficulty trusting others, and hypervigilance. See private medical treatment records dated April 1, 2009. Private medical treatment records also demonstrate that the Veteran sought treatment for PTSD in November 2013, at which time a physician noted that the Veteran endorsed symptoms such as feelings of sadness, pessimism, feelings of guilt and regret, loss of self-confidence, suicidal ideation without active plan or intent, crying spells, agitation, loss of interest in people and activities, decreased energy level, irritability, changes in appetite, and difficulty concentrating. See private medical treatment records dated November 5, 2013. The Veteran was afforded a VA examination in November 2014 to evaluate the severity of his PTSD. At that time, a psychologist noted that the Veteran’s PTSD manifested in symptoms including nightmares, intrusive recollections, hypervigilance, exaggerated startle response, and avoidance of thoughts/reminders of the stressor incident. See VA examination dated November 19, 2014. Furthermore, the psychologist remarked that symptoms such as loss of interest, difficulty concentrating, anger, social isolation, feelings of guilt, and difficulty sleeping were attributable to both the Veteran’s service-connected PTSD and his nonservice-connected depressive disorder. Notably, although using symptoms from a nonservice-connected disability for the purposes of rating a disability that is service connected is prohibited, if it is not possible to distinguish between the respective symptoms because they are so intertwined, such as in this instance, then the symptoms will be attributed to the service-connected disability. See 38 C.F.R. §§ 3.102, 4.14; Mittleider v. West, 11 Vet. App. 181, 182 (1998). Finally, the clinician observed that the Veteran experienced depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and/or social relationships. The psychologist opined that the aforementioned PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity. Consistent with the directives of the Board’s January 2020 remand, the Veteran was offered a psychological evaluation on July 24, 2020. The examiner reported that the Veteran’s PTSD manifested in depressed mood, anxiety, suspiciousness, panic attacks occurring more than once per week, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, flattened affect, circumlocutory speech, difficulty understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, obsessive rituals that interfere with routine activities, impaired impulse control, neglect of personal appearance and hygiene, and intermittent inability to perform activities required of daily living. See VA examination dated July 24, 2020. The examiner determined that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and/or mood. In light of the foregoing, the Board finds that the evidence of record warrants a disability rating of 70 percent, but no higher, prior to July 24, 2020, for service-connected PTSD. The Board finds the lay statements of the Veteran, as well as those of his family and friends, to be especially probative in determining the severity of the Veteran’s PTSD symptoms and the social and occupational impact the disability causes on the Veteran’s life. Therefore, as the lay and medical evidence of record more nearly approximates the criteria for a disability rating of 70 percent, and resolving reasonable doubt in the Veteran’s favor, entitlement to a disability rating of 70 percent for service-connected PTSD, prior to July 24, 2020, is warranted. However, a rating of 100 percent for the Veteran’s PTSD is not warranted at any point during the period on appeal. While the Veteran endorsed suicidal ideation, there is no evidence that the Veteran engaged in any planning or attempts, or otherwise engaged in any behavior indicating that he is a persistent threat to himself. Indeed, the Veteran has generally denied any planning or intent when discussing suicidal ideation. As such, the Veteran’s suicidal ideation does not more nearly approximate the severity contemplated by a 100 percent rating, which contemplates individuals who are a persistent threat to themselves. Likewise, while the Veteran has been noted to have impaired impulse control, there is no evidence of violent behavior directed at other individuals. Further, the Veteran has consistently denied homicidal ideation throughout the period on appeal. Therefore, the Veteran’s impaired impulse control does not rise to the level of severity contemplated by a 100 percent rating, which considers individuals who pose a persistent threat to others. While the submitted private assessment noted that the Veteran displayed grossly inappropriate behavior, none of the other medical evidence, including the VA examination reports, reflect that the Veteran’s behavior during appointments or examinations was inappropriate in any way. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s PTSD has been manifested by grossly inappropriate behavior during the period at issue. Further, the Veteran’s memory loss has generally been described as mild, with none of the medical evidence indicating that the Veteran’s memory loss is so severe as to result in the Veteran not remembering his own name or other closely known information. Indeed, the evidence of record generally reflects that the Veteran has been able to recall and discuss his medical and military history in great detail during appointments and examinations. As such, the Veteran’s noted memory loss does not rise to the level of severity contemplated by a 100 percent rating. Finally, ultimately the evidence of record does not establish total occupational and social impairment due to the Veteran’s noted symptoms. While entitlement to a TDIU has been awarded herein, there is no evidence that the Veteran’s symptoms result in total social impairment. The evidence of record reflects that the Veteran has generally been able to maintain social relationships with his family, with the Veteran reporting good relationships with his wife and children during the April 2009 private examination and the February 2008, November 2014, and July 2020 VA examinations. The Veteran further reported engaging in social activities and having friends outside of his immediate family at the February 2008 and November 2014 VA examinations. As such, the Board finds that overall the Veteran’s displayed symptoms do not result in total and occupational and social impairment. As such, an increased rating in excess of 70 percent is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). As discussed, the evidence shows that an increased rating of 70 percent, but no higher, prior to July 24, 2020, for PTSD is warranted. However, the preponderance of the evidence is against an increased rating in excess of 70 percent for the Veteran’s service-connected PTSD at any point during the period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 2. Entitlement to a TDIU prior to July 24, 2020. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but 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). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The phrase “unable to secure and follow a substantially gainful occupation” has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 72–74 (2019). 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. Id. at 73. With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (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; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 73–74. In this case, throughout the period on appeal the Veteran has had a combined disability rating of at least 70 percent and a single disability rated at 40 percent or more. 38 C.F.R. §§ 4.16(a), 4.25. As such, the threshold requirements for a TDIU are met. 38 C.F.R. § 4.16(a). With the threshold requirements satisfied, the Board will address whether the that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In determining whether the Veteran is capable of obtaining and maintaining gainful employment, the Board must consider the Veteran’s work history, education, and any special training. In this case, the Veteran has been unemployed since approximately 2003, prior to which he worked for approximately 25 years as a truck driver. The Veteran has a high school degree, but no special training. In support of his claim for a TDIU, the Veteran stated that his PTSD symptoms interfered with his ability to work as a truck driver. In particular, the Veteran stated that he lost his license as he experienced dizziness as a side-effect of his psychiatric medication. The Veteran has also reported that his depression interfered with his ability to work. The medical evidence of record concerning the Veteran’s employability is generally mixed with respect to the level of occupational impairment stemming from the Veteran’s service-connected disabilities. Records from the Social Security Administration (SSA) reflect that the Veteran was determined to be unemployable for SSA purposes due to a cerebrovascular accident in September 2003. However, the SSA decision also notes additional symptoms not significant enough to warrant a diagnosis as a secondary factor in finding the Veteran to be disabled. SSA medical assessments, in addition to discussing the cerebrovascular accident, also note reports of depression and that the Veteran was hypertensive. Thus, while the Veteran was found to be disabled primarily due to the cerebrovascular accident, the decision and the supporting records indicate that the psychiatric symptom and hypertension may have been contributing factors to his unemployability. The February 2008 VA psychiatric examination noted longstanding history of depression and the April 2009 private psychiatric assessment noted depression and that the Veteran was unable to establish effective relationships at work due to his tendency to self-isolate. A March 2011 letter from the Veteran’s treating physician at the VA Medical Center stated that based on the Veteran’s psychiatric symptoms he was rendered unable to obtain or maintain substantially gainful employment. The November 2014 VA examiner noted that the Veteran overall had occupational ans social impairment with reduced reliability and productivity, but did not indicate that employment was precluded based on his psychiatric disability. An opinion concerning occupational functioning specifically was obtained in April 2018, at which time the examiner stated that the evidence of record indicated that the Veteran retired due to a cerebrovascular accident in 2003, and that there was no evidence that the Veteran’s psychiatric symptoms interfered with his ability to work during the period when he was in fact working. A second opinion concerning employability was obtained in July 2020. That examiner noted that, due to the psychiatric disability, the Veteran had the following work-related impairments: (1) difficulty attending to or would be distracted from tasks; (2) difficulty concentrating over long periods; (3) intrusive thoughts which interfere with focus; (4) difficulty remembering instructions; (5) difficulty functioning around others; (6) an inability to be in close proximity to others; (7) sleep impairment that interferes with work; (8) depression that results in difficulty sustaining energy and completing assignments; and, (9) symptoms such as panic attacks and irritability that otherwise interfere with the ability to work. This assessment was based on the same or similar symptoms associated with the Veteran’s PTSD that have been displayed throughout the period on appeal, in particular depression, memory loss, impaired concentration, and difficulty, or an inability to, establish effective relationships. As such, while provided in July 2020, it is probative of the degree of occupational impairment stemming from the symptoms associated with the Veteran’s PTSD throughout the period currently on appeal. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities precluded him from obtaining of maintaining substantially gainful employment. While numerous pieces of evidence indicate that the Veteran was significantly disabled as a result of a September 2003 cerebrovascular accident, evidence of record also reflects that the Veteran has substantial difficulties interacting with other people, concentrating and completing tasks, and following instructions all of which are acts required for work such as truck driving. Ray v. Wilkie, 31 Vet. App. 58, 72–74. In weighing the lay and medical evidence of record, as well as the Veteran’s education and work history, the Board finds that it is unlikely that the Veteran would be able to find substantially gainful employment in another profession or field. Based on the Veteran’s experience and work history, the Board finds that obtaining such a job is unlikely. As such, entitlement to TDIU prior to July 24, 2020, is warranted. 38 C.F.R. § 4.16(a). CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.