Citation Nr: 21003502 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-22 357 DATE: January 21, 2021 ORDER From March 29, 2011, to October 27, 2016, a 70 percent rating for posttraumatic stress disorder (PTSD) is granted, and from October 27, 2016, to June 27, 2017, a 100 percent rating for PTSD is granted. From March 29, 2011, to October 26, 2016, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From March 29, 2011, to October 27, 2016, the Veteran’s PTSD symptomatology more closely approximated occupational and social impairment with deficiencies in most areas. 2. From October 27, 2016, to June 27, 2017, the Veteran’s PTSD symptomatology more closely approximated total occupational and social impairment. 3. From March 29, 2011, to October 27, 2016, the Veteran’s service-connected PTSD precluded him from securing or following substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. From March 29, 2011, to October 26, 2016, the criteria for a rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. From October 27, 2016, to June 27, 2017, the criteria for a rating of 100 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, DC 9411. 3. From March 29, 2011, to October 26, 2016, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1981 to August 1985. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned a 10 percent rating, effective July 23, 2007. In a June 2018 rating decision, the RO increased the Veteran’s PTSD rating to 100 percent, effective June 28, 2017. In a May 2019 decision, the Board granted the Veteran a 70 percent rating for PTSD for the period prior to March 29, 2011, and a 50 percent rating from March 29, 2011 to June 27, 2017. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the Parties, remanded the issue of a rating in excess of 50 percent for PTSD from March 29, 2011, to June 27, 2017. The Court instructed the Board to consider and weigh the probative value of an October 2016 private medical opinion and the Veteran’s report of suicide ideation to the suicide hotline in August 2011. As discussed below, the Board is awarding a total 100 percent schedular rating for PTSD from October 27, 2016. Accordingly, entitlement to a TDIU is moot from that date, and entitlement to a TDIU from March 29, 2011 to October 27, 2016 is still before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. From March 29, 2011, to October 27, 2016, a 70 percent rating for PTSD is granted. 2. From October 27, 2016, to June 27, 2017, a 100 percent rating for PTSD is granted. The Veteran asserts his PTSD symptomatology warrants a rating in excess of 50 percent from March 29, 2011, to June 27, 2017. See November 2020 Attorney letter (requesting 70 percent); January 2012 Notice of Disagreement (requesting 100 percent); July 2011 Statement in Support of Claim (requesting 100 percent). The Veteran is in receipt of a 70 percent rating for PTSD prior to March 29, 2011, and a 100 percent rating for PTSD after June 27, 2017. The Veteran is rated under DC 9411, and the period on appeal is from March 29, 2011, to June 27, 2017, for which the Veteran’s PTSD is rated at the 50 percent level. Under DC 9411, a 50 percent rating is warranted where PTSD is manifested by occupational and social impairment with reduced reliability and productivity, due to 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned where PTSD produces 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. In an October 26, 2016 medical opinion, a private psychologist opined that the Veteran’s PTSD resulted in “severe social and occupational impairment with deficiencies in most areas including work, mood, judgment, and thinking since at least 2007.” The psychologist also noted that the Veteran’s PTSD has “precluded his ability to secure and follow substantial gainful employment since at least 2007.” Specifically, the psychologist’s report indicates the Veteran lived a socially isolated life and spent most of his time at home. The Veteran denied having friends. The psychologist also noted that the Veteran had “a history of previous recurrent [suicidal] ideation.” Additionally, the Veteran reported a history of anxiety with panic attacks, and exhibited nervousness when talking about his military service. The psychologist specifically noted that his panic attacks prevented him from driving. The psychologist also noted a history of sleeping difficulties, to include nightmares and violent awakenings. The psychologist further indicated that the Veteran’s memory was “only fair,” in that he had difficulty recalling details. The psychologist deemed the Veteran’s judgment and insight to be “somewhat limited,” given his mental status. In June 2017, the Veteran presented for a VA psychiatric examination. Although the examination took place on June 28, 2017, the examination report discusses the Veteran’s mental status up to that date and is, therefore, relevant in rating the Veteran’s PTSD symptomatology during the appeal period up to June 27, 2017. The examiner noted that the Veteran reported not working since 2011, although he had difficulty remembering. The examiner observed that the Veteran’s chart reflected not working since 2007. Significantly, the examiner opined that the Veteran’s PTSD rendered him “totally impaired” with respect to occupational and social functioning. Furthermore, the examiner opined that based on his PTSD symptomatology and his presentation during the examination the Veteran could not “function in any type of work setting.” In this regard, the examiner added that the Veteran’s PTSD rendered him “nonfunctional in almost all areas especially cognitive.” The examiner noted that the Veteran was incompetent to manage his finances, and that they were handled by his wife. The examiner further observed the Veteran did not drive due to anxiety and stayed home most of the time. The examiner indicated the Veteran had difficulty remembering his past psychiatric treatment, including hospitalizations. The examiner noted he had nightmares at least twice per week and woke up frequently. The examiner also indicated the Veteran could not be around crowds and isolated away from other people, including his wife and daughter at home. The examiner stated that the Veteran had physical confrontations with people in public or at past jobs. The examiner also noted that the Veteran was oriented only to place and the current year, and he had to repeat every question before answering it. After a while the Veteran was unable to answer the examiner’s questions at all and the examiner had to end the interview early. The examiner noted the Veteran’s symptomatology included difficulty maintaining work and social relationships, and suicidal ideation. With regard to suicidality, both the October 26, 2016 private clinician and the June 2017 VA examiner noted the Veteran experienced suicidal ideation on more than one occasion. Specifically, the October 2016 opinion noted the Veteran’s history of “recurrent” suicidal ideation and the June 2017 examiner observed the Veteran has “frequent thoughts about suicide.” In addition to these clinical assessments, the Board notes the Veteran called the suicide prevention hotline in August 2011 and “stated he had suicide ideation.” See August 2011 mental health hotline report. In March 2011, the Veteran presented for a VA psychiatric examination. The examiner noted that the Veteran had a current diagnosis of PTSD that conformed to the DSM-V. The examiner also indicated the Veteran’s level 1 symptoms included panic attacks that occur weekly or less often and chronic sleep impairment; level 2 symptoms included panic attacks that occur more than once per week; and no symptoms under level 3 and 4. The examiner further observed that the Veteran’s symptomatology was not severe enough to interfere with occupational and social functioning. The examiner lastly indicated that the Veteran’s PTSD did not impact his ability to work. Additional evidence of record indicates the Veteran experienced nightmares almost every night, irritability and anger that caused him to lash out toward others, and panic attacks several times per week, especially when he had to go to the store, and that he could not be around other people due to panic attacks. See February 2013 VA psychiatry note; January 2012 VA mental health treatment note; March 2011 VA examination. In addition, evidence of record demonstrates the Veteran cannot drive because of his panic attacks, and on several occasions he has had to pull over and have someone pick him up due to a panic attack. See April 2016 lay statement. In a September 2010 lay statement, the Veteran’s spouse wrote that he could not be around other people, and therefore did not leave the house, he had nightmares and mood swings, and was been unable to hold a job longer than a few months over the past 30 years. In a September 2010 lay statement, the Veteran’s daughter wrote that his panic attacks precluded him from going places and participating in social events, and that he was never able to hold a job. After consideration of all the evidence, the Board finds that the record warrants a staged rating. Specifically, the Board finds that the Veteran’s disability more closely approximated a 70 percent rating from March 29, 2011, to October 26, 2016, and that his disability more closely approximated a 100 percent rating from October 27, 2016, to June 27, 2017. With respect to the period from March 29, 2011, to October 26, 2016, the Board notes a private psychologist’s statement noting deficiencies in most areas. In addition, evidence demonstrates that due to his service-connected PTSD, the Veteran lived a socially isolated life, spent most of his time at home, experienced frequent panic attacks that prevented him from driving or leaving home, and experienced sleeping difficulties caused by nightmares and violent awakenings. The October 2016 private medical opinion further indicated that the Veteran’s memory was “only fair,” and his insight was “somewhat limited” given his mental status. The Board also finds that despite the instances where the Veteran denied suicidal ideation as documented in his treatment records, other credible evidence indicates the Veteran experienced persistent suicidal ideation. See October 2016 private medical opinion (stating the Veteran has “a history of previous recurrent [suicide] ideation”) (emphasis added); August 2011 suicide hotline report. The March 2011 examination also documented that the Veteran experienced panic attacks more than once per week. Although the March 2011 examination noted the Veteran’s symptoms were not severe enough to interfere with the Veteran’s social and occupational functioning, other evidence of the Veteran’s condition beginning shortly after the March 2011 examination support an increased rating. See, e.g. January 2012 VA treatment record (noting limited social support and coping skills, chronic PTSD, and serious symptoms). In addition, the September 2010 statements by the Veteran’s spouse and daughter corroborate the accounts of the Veteran being unable to leave home due to panic attacks and being unable to maintain employment due to his PTSD symptomatology. For these reasons, the Board finds that a 70 percent rating, but no higher, is warranted from March 29, 2011, to October 26, 2016. With respect to the period from October 27, 2016, the day following the private clinician’s assessment, to June 27, 2017, the Board finds the Veteran’s PTSD more closely approximated total occupational and social impairment. Specifically, the June 2017 examiner stated the Veteran’s PTSD symptomatology rendered him “totally impaired” with respect to occupational and social functioning and that he could not “function in any type of work setting.” The examiner further opined that the Veteran’s PTSD rendered him “nonfunctional in almost all areas especially cognitive.” Additionally, the June 2017 examiner noted the Veteran had “frequent thoughts about suicide.” Additional credible medical and lay evidence of record demonstrates that the Veteran’s frequent and debilitating panic attacks render him essentially homebound. The June 2017 examiner also noted memory loss and impairment to the Veteran’s communication ability in that he had difficulty answering questions during the interview, so much so that the interview had to end early due to the Veteran being unable to communicate any longer. For the foregoing reasons, the Board finds that a total disability rating under DC 9411 is warranted for the period of October 27, 2016, to June 27, 2017. 3. From March 29, 2011, to October 27, 2016, entitlement to a TDIU is granted. Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period of March 29, 2011, to October 26, 2016, the Veteran met the schedular rating requirements for a TDIU, see 38 C.F.R. § 4.16(a), as he had one service-connected disability ratable at 40 percent or more (PTSD). The remaining question is whether the service-connected disability rendered the Veteran incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The evidence shows that the Veteran last worked full-time in 2005 and that he does not receive income from employment exceeding the federal poverty threshold. See June 2011 VA Form 21-8940. This is in accord with the economic component of entitlement to a TDIU. Regarding the noneconomic component, the Veteran reported that he has a high school education and that he worked two days at a restaurant in 2010 and one week in sales in 2009. See June 2011 VA Form 21-8940. Turning to the impact of the Veteran’s service-connected PTSD, as noted above, the Veteran’s disability resulted in occupational and social impairment with deficiencies in areas such as work, thinking and mood from March 29, 2011, to October 26, 2016. This level of impairment was due to symptoms such as suicidal ideation, panic attacks, difficult establishing and maintaining relationships, and unprovoked irritability. The Board finds that the impact of these symptoms made it impossible for the Veteran to secure and maintain substantially gainful employment. In this regard, the Board observes that the Veteran only has a history of employment working with the public, such as in sales and restaurants, and his PTSD symptomatology would preclude him from this type of work, specifically his unprovoked irritability, suicidal ideation, frequent panic attacks, and difficultly maintaining relationships. Many of the symptoms that impact the Veteran’s ability to successfully perform the work of his past roles would impact his ability to successfully perform work in most occupational settings. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran was unable to maintain a substantially gainful occupation as a result of his service-connected disabilities for the period of March 29, 2011, to October 26, 2016, and an award of TDIU is warranted for this period. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.