Citation Nr: 21003144 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-23 858 DATE: January 19, 2021 ORDER A 70 percent rating is granted for posttraumatic stress disorder (psychiatric disability) throughout the period on appeal, subject to the law and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran’s psychiatric disability has been manifested by regular anxiety, sleep disturbance, social isolation, feelings of hopelessness, mild memory loss, sex drive impairment, suspiciousness, impaired impulse control, significant mood swings, outbursts of anger, and unprovoked irritability; the evidence as to whether his disability has caused occupational and social impairment with deficiencies in most areas is, at least, in equipoise. 2. During the period on appeal, the Veteran’s psychiatric disability has not been manifested by total occupational and social impairment; he is not shown to have experienced persistent delusions or hallucinations, he has not demonstrated persistent danger of self-harm or danger to others, he has not had significant memory loss with regard to basic facts (such as his own name and occupation), and he has not had other symptoms functionally equivalent thereto. 3. The evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disability is, at least, in equipoise. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 70 percent rating for the Veteran’s psychiatric disability have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 70 percent for the Veteran’s psychiatric disability have not been met for any portion of the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9411. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1967 to January 1970, to include service in the Republic of Vietnam. His decorations include the Combat Infantryman Badge and the Bronze Star Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The RO granted service connection and a 50 percent evaluation for PTSD, effective June 28, 2012. This case was previously before the Board in May 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD The Veteran contends that his service-connected PTSD warrants a rating greater than 50 percent. Disability evaluations are determined by the application of a schedule of ratings, which is, in turn, based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s psychiatric disability is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.130, DC 9411. Under that DC, a 50 percent rating is warranted if the disorder is manifested by 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 if the disorder is manifested by 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 that is 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 if the disorder is manifested by 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; and memory loss for names of close relatives, own occupation, or own name. Following a review of the relevant evidence in this case, and the applicable law and regulations, it is the Board’s conclusion that the evidence supports the award of a 70 percent rating for the Veteran’s PTSD. The evidence reflects that his disability has been manifested by regular anxiety, sleep disturbance, social isolation, feelings of hopelessness, mild memory loss, sex drive impairment, suspiciousness, impaired impulse control, significant mood swings, outbursts of anger, and unprovoked irritability. The Veteran underwent a VA PTSD examination in August 2012. The examiner, Dr. B.L.O., issued a diagnosis of PTSD based on the Veteran’s symptoms. Psychosocial and environmental problems were noted to include heightened arousal, mood swings, sleep impairment, and hypervigilance. Dr. B.L.O. characterized the Veteran’s psychiatric disability as causative of “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.” August 2012 PTSD VA examination. During the August 2012 examination, the Veteran told the examiner that he had been married to his second wife for 12 years. He maintained a positive relationship with his two sisters and is mother. He expressed concerns about feelings of intimacy in his marriage. Dr. B.L.O. noted that the Veteran last worked in 1996 and “stopped working prematurely due to excessive stress.” The examiner opined that the Veteran would have difficulty working outside of a protected environment with “’strangers’”. Id. This is an important observation with regard to the Veteran’s TDIU claim, discussed below. Dr. B.L.O. noted the following symptoms: anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; and impaired impulse control, such as unprovoked irritability with periods of violence. A past history of excessive alcohol intake was indicated; however, the examiner determined that the Veteran’s intake did not rise to the level of dependency or abuse. In March 2013, the Veteran’s representative submitted a notice of disagreement, suggesting that her client’s PTSD “has become much more serious” and, therefore, worthy of a rating greater than 50 percent. In April 2013, the Veteran underwent an intake assessment for counseling at his local Vet Center. At the time of the assessment he denied any suicidal thoughts; however, he endorsed feelings of hopelessness and despair. April 2013 VA Center intake assessment notes authored by M.J. He denied the presence of delusions, disorganized thinking, or hallucinations. His appearance was neat; his speech was appropriate; his judgment was good. With that said, the intake counselor noted an anxious manner; some disorientation with regard to time and place; impaired memory function; and tense motor activity. The counselor also noted insomnia symptoms and sex drive impairments. The Veteran indicated that he had obtained a college degree in business and economics. After returning from Vietnam, he worked in his father’s car business. In a May 2014 written correspondence, the Veteran’s readjustment counselor and therapist at VA issued a clinical report regarding his client’s PTSD treatment at the Manhattan Vet Center. Based on psychological testing, the Veteran’s impairment was noted to be severe. Life areas affected included the following: work; household chores and duties; relationships with friends; fun and leisure activities; relationships with family; sex life; schoolwork; general satisfaction with life; and “overall level of functioning in all areas of life.” The author of the May 2014 correspondence, Dr. M.D.J., noted the following PTSD symptoms: depression; feelings of grief and loss; anger or rage; disturbing memories with intrusive imagery; trouble relaxing; hypervigilance; trouble sleeping; extreme sensitivity to news reports of current wars; fear of people, crowds, or social situations; fear of intimacy; excessive desire for isolation and privacy; resentment or suspicion regarding authority; exaggerated startle response; poor concentration; short-term memory impairment; low self-regard; a history of self-medication through alcohol use; difficulty tolerating normal or routine stress in the workplace or society; and a general loss of interest in life. The Veteran reported that he felt emotionally dead and numb after Vietnam. He credited his close relationship with his grandchildren for helping him to laugh and play and feel again. Dr. M.D.J., opined that the Veteran’s PTSD symptomatology met VA standards for a 100 percent disability rating. In rendering his opinion, he borrowed from the language of 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Treatment notes from the Veteran’s group therapy and individual therapy at the Manhattan Vet Center chronicle his struggles with anger, aggression, impulse control, social isolation, and trauma. The Board has reviewed those treatment notes in their entirety. By a June 2018 written correspondence, Dr. M.D.J., a VA employee and readjustment expert, reaffirmed his assertion that the Veteran was worthy of a total, 100 percent disability rating. Pursuant to the Board’s 2019 remand directives, the Veteran underwent another VA PTSD examination in July of that year. The examiner, Dr. J.F.B., confirmed the previous diagnosis of PTSD. July 2019 VA PTSD examination and report. The Veteran reported having seven grandchildren and a close, rewarding relationship with his wife, children, and grandchildren. He claimed to be retired with his most recent employment in 1996. Id. He had worked with the same employer (his family) for 30 years; however, during that time, he experienced frequent emotional distress, hypervigilance, occasional verbal altercations with customers, and increased social isolation. Id. The Veteran further reported that he believed he would be unable to obtain or maintain employment because of mental health symptoms that have increased in severity and were, in his opinion, likely to cause severe impairment in his occupational functioning. Id. During the July 2019 examination, the Veteran appeared clean, adequately groomed, and casually dressed. Id. He denied hallucinations, delusions, or mania. His judgment was intact. He denied suicidal or homicidal ideation. Id. He was noted to appear anxious. Id. The examiner recorded the following symptoms: anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. Id. The July 2019 examiner concluded that the Veteran’s psychiatric disability symptoms would “more likely than not result in a level of impairment in completing common employment tasks in either sedentary or physically arduous work environments that would seemingly cause moderate limitation in the [V]eteran’s ability to successfully achieve and maintain gainful employment at present and for the foreseeable future.” The VA examination reports of record notwithstanding, a review of the Veteran’s medical treatment notes suggest that his PTSD symptoms warrant a 70 percent rating for the period on appeal. As stated above, where 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. 38 C.F.R. § 4.7. The Board finds the analyses rendered by Dr. M.D.J. to be compelling and worthy of significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). With that said, the Veteran’s symptoms do not approximate a schedular rating of 100 percent. Here, the Board acknowledges the recommendations of Dr. M.D.J. with regard to the Veteran’s assigned disability rating; however, such a determination is a matter of law within the Board’s jurisdiction. The Veteran has demonstrated mild memory loss; however, such memory loss symptoms have not been of the severity, frequency, or duration contemplated by a total rating. There is no evidence in the record of gross impairment in thought processes or communication; persistent delusions or hallucinations; persistent danger of hurting self or others; grossly inappropriate behavior; persistent disorientation to time or place; or memory loss for his own occupation or name. The Board acknowledges that the symptoms noted in DC 9411 are not exhaustive, but merely demonstrative of the type and severity of symptoms necessary to approximate the 100 percent evaluation. However, in the present case, the Veteran has not shown any symptomatology reflective of total social and occupational impairment at any time during the appeal period. He maintains positive, rewarding relationships with his wife, children, and grandchildren. He regularly participates in mental health treatment, including group therapy and engagement with other Veterans. He has not demonstrated the inability to perform activities of daily living. As such, a rating in excess of 70 percent is not warranted. 38 C.F.R. § 4.7. 2. Entitlement to a TDIU In its May 2019 opinion, the Board found that the recorded reasonably raised a claim for a TDIU as part and parcel of his PTSD claim. See Rice v. Shinseki, 22 Vet. App. 447, 451-53 (2009). VA will grant a total disability rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is 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). In this case, the Veteran is service connected for PTSD, tinnitus, and hearing loss. Based on the Board’s determination, above, he now meets the schedular criteria for a TDIU. Id. The Board has carefully considered all of the evidence of record. Particularly persuasive are the opinions from mental health specialists working with the Veteran clinically. As indicated above, Dr. M.D.J. opined that the Veteran’s symptoms approximate total social and occupational impairment. His opinion carries significant probative value with regard to the question of employability. Dr. M.D.J. has treated the Veteran for several years; he has specialized the mental health aspects of readjustment; and his opinion offered clear conclusions with supporting data and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, as detailed above, the July 2019 examiner opined that the Veteran’s psychiatric disability symptoms were likely to cause severe impairment in his occupational functioning. The final determination with respect to a Veteran’s entitlement to a TDIU is an adjudicatory, and not a medical, function. The findings reflected throughout the Veteran’s clinical reports are highly probative. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran’s description of the functional effects of his service-connected psychiatric disability, together with service-connected impairments related to tinnitus and hearing loss, as they relate to his level of education and prior occupational experience, the Board is persuaded that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A TDIU is therefore granted. In arriving at this conclusion, the Board intimates no opinion, either legal or factual, as to the appropriate effective date of the TDIU award. That matter will be addressed by the agency of original jurisdiction when the award is effectuated. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.