Citation Nr: 21063373 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 14-41 060A DATE: October 14, 2021 ORDER Entitlement to a disability rating of 50 percent for posttraumatic stress disorder (PTSD) from March 6, 2013 to April 10, 2018 is granted. Entitlement to an earlier effective date of March 6, 2013 for the grant of a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the period from March 6, 2013 to April 10, 2018, the preponderance of the evidence of record indicates that the Veteran's PTSD most closely approximated occupational and social impairment with reduced reliability and productivity. 2. The preponderance of the evidence indicates that the combination of the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for PTSD from March 6, 2013 to April 10, 2018 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 (DC) 9411. 2. The criteria for entitlement to an effective date prior to April 10, 2018, for the award of TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to February 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), who remanded the case in June 2018. In a March 2020 decision, the Board granted TDIU effective April 10, 2018 and remanded the claim for TDIU for the period prior to April 10, 2018 for referral to the Director of Compensation Service for consideration for extraschedular consideration in the first instance. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. Additionally, in the March 2020 decision, the Board granted a 70 percent rating for PTSD effective April 10, 2018 and denied a rating in excess of 30 percent prior to April 10, 2018. Subsequently, the Veteran appealed the denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a November 2020 decision, the Court granted the parties' Joint Motion for Partial Remand, partially vacated the Board's November 2020 decision, and remanded the matter to the Board for action consistent with the ruling. The claim is now once again before the Board. 1. Entitlement to a disability rating in excess of 30 percent for PTSD from March 6, 2013 to April 10, 2018 The Veteran asserts that his PTSD was more severe than is reflected by his evaluation for the period from March 6, 2013 to April 10, 2018. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the veteran's medical history. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. VA shall consider all information and lay and medical evidence of record in a case, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). When determining the appropriate disability rating to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). A veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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 effective work and social relationships. A 70 percent rating is warranted when there is 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 an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9434. The maximum schedular rating of 100 percent is warranted when 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; and memory loss for names of close relatives, own occupation, or own name. Id. In this case, the Veteran submitted a claim for an increased rating in May 2013, along with a statement in support of his claim. The Veteran asserted that he suffered from chronic sleep impairment as a result of his service. March 2012 private treatment records reflect the Veteran being treated for PTSD and depression. He was noted to not be in acute distress, and he was not suicidal or homicidal. February and November 2013 VA treatment records reflect the Veteran's PTSD resulting nightmares, emotional numbness, and feeling down for the past several days; however, he was negative for depression. He was negative for suicidal ideation. In a November 2013 statement, a licensed clinical social worker (LCSW) stated that the Veteran suffered from anxiety, anger, concentration, and memory issues along with chronic sleep impairment. The Veteran had trouble managing daily stressors, experienced episodes of explosive anger, and reported occasional thoughts about his own death. During a February 2014 VA examination for PTSD, the VA examiner noted that the Veteran's disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At the examination, the Veteran presented with good hygiene, appropriate dress, and was cordial during the examination. The Veteran's symptoms included irritability and anger issues, which were typically expressed as verbal or physical aggression toward people or objects. The Veteran was also positive for hypervigilance, problems with concentration, sleep disturbance, nightmares 4 to 5 times per week, and anxiety. The Veteran described some marital difficulties and continued to drink alcohol, despite a history of alcohol abuse. His wife reported that he became physically aggressive in his sleep, including fighting or grabbing her should she try to wake him. The Veteran had been retired from his job as a pipefitter for 11 years. He and his wife reported they continued to support each other and continued to engage in activities together including out for movies/meals, cooking at home together, attending sporting events together, attending church together, and working in their garden. The Veteran reported getting together with friends and fellow veterans several time during the week for meetings, in addition to other social gatherings for veterans. The Veteran reported he repaired and refurbished tractors and did woodwork at home, as he enjoyed structured activities. September 2014 VA treatment records reflect that the Veteran's PTSD resulted in occasional nightmares and panic attacks. January 2015 VA treatment records reflect the Veteran being negative for suicidal ideation and denying depression. In April 2015 VA treatment records, the Veteran reported he was not suicidal or homicidal and was negative for hallucinations and delusions. While he had core symptoms of PTSD, he was negative for alcohol and drug abuse. August and December 2015 VA treatment records reflect the Veteran was negative for depression, mania, suicidal ideation, homicidal ideation, hallucinations, and delusions. He was positive for sleep impairment, nightmares. However, his memory and judgement were noted to be intact and in good condition. December 2015, February 2017, August 2017, December 2017, and April 2018 VA treatment records reflect the Veteran being negative for depression, hallucinations and delusions, and suicidal ideation. Situational stressors could cause negative changes in his mood, but he denied being physically or emotionally aggressive. In an August 2016 statement, a private physician opined that the Veteran experienced depression and PTSD and was prescribed anti-depressants to treat his condition. They stated that the Veteran's mental disability was moderate in severity and caused moderate to serious impairment in his life. Due to a combination of his physical and mental disabilities, he was not capable of gainful employment. In a December 2017 treatment record by a psychiatrist, the physician stated that the Veteran was not suicidal, homicidal, or depressed, but he did experience chronic sleep impairment and nightmares. He was negative for anger issues, stated that his home life was stable, had a good relationship with his spouse, and had no alcohol abuse. In an April 2018 letter by a readjustment counselor, the counselor asserted that the Veteran's symptoms included or resulted in sleep disturbance, recurrent intrusive thoughts, diminished interest in activities, difficulty concentrating, emotional distancing, outbursts of anger, restricted range of emotions, feeling of detachments, memory loss, and total occupational and social impairment. During the Veteran's April 2018 Board hearing, the Veteran and his wife testified that he no longer felt comfortable going to social events like church, struggled with completing and concentrating on tasks, and experienced mood swings and irritability. He had some friends and relationships with fellow veterans, but he kept a limited social network. He also experienced hypervigilance, chronic sleep impairment, memory issues, and nightmares. The Veteran testified that he was not truthful with psychiatrists and often held back symptoms or the severity of his symptoms. He testified that he experienced suicidal and homicidal ideation, emotional detachment, numbness, anxiety, and outbursts of anger. In an August 2021 Appellate Brief, the Veteran's representative argued that the Veteran was entitled to a 70 percent disability rating for his PTSD for the entire period on appeal. The representative also noted that an April 2018 letter from a readjustment counselor noted that he experienced an inability to establish and maintain relationships as well as feelings of detachment and numbness. The representative argued that the Board should consider the retroactive nature of the letter due to its similarities to the VA examination report. The Board does not agree with the representative's argument that the April 2018 letter indicates an inability to establish relationships for a period significantly prior to the date of the letter or that the symptoms described in the letter are consistent with those in the VA examination report. The VA examination report does reflect difficulty in establishing and maintaining relationships, but it and the April 2019 VA examination report do not reflect an inability to establish and maintain relationships. These symptoms were not indicated until the August 2021 VA examination for PTSD. Additionally, the symptoms and overall severity of the Veteran's condition described in the April 2014 VA examination report do not reflect total occupational and social impairment. This is also not reflected in the Veteran's treatment records for the current period on appeal. The Veteran has also asserted that his PTSD symptoms are more severe than is reflected by his current evaluation. While the Veteran is competent to observe his PTSD symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his PTSD symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that there is evidence supporting and contradicting the Veteran's claim for an increased rating. However, the preponderance of the evidence does not support a 70 percent disability rating prior to April 10, 2018. While the November 2013 LCSW statement indicates that the Veteran had occasional thoughts of death, the rest of the Veteran's treatment records and medical evidence, including the VA examination report, indicate that the Veteran was negative for suicidal ideation and generally negative for depression. The LCSW statement also indicated that the Veteran suffered from anxiety, anger, concentration, and memory issues along with chronic sleep impairment. In the August 2021 Appellate Brief, the Veteran's representative argued that the evidence of record indicated that the Veteran's anger issues resulted in periods of violence or aggression. However, the evidence of record generally indicates any violence or aggression was confined to period when the Veteran was experiencing or waking from a nightmare. Multiple treatment records reflect the Veteran denying being physically or emotionally aggressive. The February 2014 VA examination report notes some aggression directed toward objects or people as well as some marital difficulties and feeling emotionally detached. However, it also reflects the Veteran maintaining a generally positive marital relationship and being involved in many social activities. The evidence of record reflects that the Veteran generally displayed an appropriate affect, experienced mild impairment of his judgment, concentration, and memory, was frequently negative for depression or mania, and did not neglect his hygiene or appearance. He was also negative for more severe symptoms such as suicidal or homicidal ideation or hallucinations or delusions. He was positive for difficulty in establishing and maintaining social relationships and for occasional panic attacks and chronic nightmares. There is evidence of the Veteran displaying symptoms consistent with occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent rating, including chronic panic attacks and nightmares, anger issues, memory and concentration problems, and difficulty in maintaining and establishing relationships. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's overall level of social and occupational impairment throughout the period on appeal to be more consistent with the level of impairment contemplated by a 50 percent disability rating. Finally, the Board finds that the evidence of record strongly indicates that the Veteran seldom displayed any of the symptoms or the overall level of severity contemplated by the 70 percent rating criteria prior to April 10, 2018. The Board has considered the Veteran's hearing testimony that he experienced earlier suicidal and homicidal ideation and was not truthful with psychiatrists. However, the Board notes that mental healthcare professionals are trained to analyze mental health symptoms and to detect evasive or untruthful behavior. The Veteran also consistently self-reported that he was negative for the symptoms that he is now claiming were present. Based on these facts, the Board finds the preponderance of the evidence is against granting a 70 percent disability rating. Accordingly, for the period from March 6, 2013 to April 10, 2018, a 50 percent disability rating for PTSD is granted. To that extent, the appeal is granted. 2. Entitlement to TDIU prior to April 10, 2018 The Veteran asserts that his service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to April 10, 2018. As of this decision, his PTSD was rated as 50 percent disabling during the period on appeal, his tinnitus was rated as 10 percent disabling during this period, and his left knee disability was rated as 10 percent disabling, effective February 11, 2016. See April 2020 codesheet. Under 38 C.F.R. § 4.16(a), if a veteran is only service connected for one disability, that disability must have a rating of 60 percent or more; if the veteran has two or more service-connected disabilities, at least one of those disabilities must have a rating of 40 percent or more, and the total combined rating of service-connected disabilities must be at least 70 percent. Disabilities affecting a single body system, or of a common etiology, shall be considered as a single disability. Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). VA will refer to the Director of the Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Board has already referred this claim to the Director, who responded in April 2020, and can now adjudicate the claim for extraschedular TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, 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). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. The effective date for an increased rating for disability compensation will be the date entitlement arose or the date of receipt of the claim, whichever is later, with the exception being that the date may be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000); 38 C.F.R. § 4.16. In this case, the Veteran filed a claim for service connection for PTSD in March 2013, and his claim for TDIU dates to this claim. In a statement included with the claim, the Veteran asserted that he experienced chronic sleep impairment and nightmares due to his PTSD. In a November 2013 statement, a licensed clinical social worker (LCSW) stated that the Veteran suffered from anxiety, anger, concentration, and memory issues along with chronic sleep impairment. The Veteran had trouble managing daily stressors and reported occasional thoughts about his own death. During a February 2014 VA examination for PTSD, the VA examiner noted that the Veteran's disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At the examination, the Veteran presented with good hygiene, appropriate dress, and was cordial during the examination. The Veteran's symptoms included irritability and anger issues, which were typically expressed as verbal or physical aggression toward people or objects. The Veteran was also positive for hypervigilance, problems with concentration, sleep disturbance, nightmares 4 to 5 times per week, and anxiety. The Veteran described some marital difficulties and continued to drink alcohol, despite a history of alcohol abuse. His wife reported that he became physically aggressive in his sleep, including fighting or grabbing her should she try to wake him. The Veteran had been retired from his job as a pipefitter for 11 years. He and his wife reported they continued to support each other and continued to engage in activities together including out for movies/meals, cooking at home together, attending sporting events together, attending church together, and working in their garden. The Veteran reported getting together with friends and fellow veterans several time during the week for meetings, in addition to other social gatherings for veterans. The Veteran reported he repaired and refurbished tractors and did woodwork at home, as he enjoyed structured activities. In an August 2016 statement by a private physician, the physician opined that the Veteran's physical and mental disabilities rendered him incapable of gainful employment. In an April 2018 letter, a readjustment counselor found that the Veteran's PTSD resulted in total occupational and social impairment. In a March 2019 TDIU application, the Veteran reported that he had been treated for PTSD since February 2005, and he last worked fulltime in December 2002 as pipefitter. The Board finds the preponderance of the evidence is in favor of finding that the Veteran has been unable to secure or maintain a substantially gainful occupation during the period on appeal. The August 2016 physician's statement and April 2018 readjustment counselor's statement both opined that the Veteran was incapable of working. Additionally, the Veteran reported that he had not worked since retiring in 2002. While the Board does not find that the Veteran's PTSD alone would have prevented him from securing or maintaining a substantially gainful occupation throughout the period on appeal, it does find that the combination of his service-connected disabilities most likely prevented him from doing so, especially when considering his prior education, experience, and training. Based on these facts, the Board finds the preponderance of the evidence is in favor of the Veteran's claim. Accordingly, the claim for TDIU is granted effective March 6, 2013, the effective date of service connection for PTSD. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.