Citation Nr: 21064117 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-17 381 DATE: October 19, 2021 ORDER An initial 70 percent rating for posttraumatic stress disorder (PTSD) from February 27, 2014 is granted. A TDIU prior to March 23, 2019 is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms resulted in deficiencies in most areas but did not more closely approximate total occupational and social impairment. 2. Prior to March 23, 2019, the Veteran was gainfully employed. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent for PTSD, but no higher, have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from February 2006 to April 2013 and was awarded the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision. It was previously remanded in June 2020. 1. Increased Rating for PTSD The Veteran's PTSD is rated under DC 9411, which is part of the General Formula for Mental Disorders (General Formula) found in 38 C.F.R. § 4.130. Prior to March 23, 2019, he is assigned a 50 percent rating. From that date, he has a 70 percent rating. A higher 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. First, the Board finds that a 70 percent rating is warranted prior to March 23, 2019. An August 2015 VA examination noted impaired impulse control with periods of violence among the Veteran's symptoms. VA treatment records from May 2017 noted a positive history of suicidal ideation. Additional records from June 2018 documented that the Veteran yelled, cursed, and threw things at work. In January 2019, he was noted to be experiencing periodic suicidal ideation. These symptoms are all consistent with the 70 percent rating. Notably, there is also evidence that the Veteran's PTSD was not very severe during this time. VA treatment records from May 2016 show the Veteran reported that his symptoms "were not problems" and "nothing to be worried about." VA examiners from August 2015 and August 2016 assessed only mild or transient symptoms. However, the August 2016 VA examiner specifically noted that the Veteran tended to minimize his negative mood symptoms due to the potential impact on his employment. Indeed, additional VA treatment records show the Veteran sought an evaluation to determine his fitness to carry a firearm as part of a job at the Pentagon. Therefore, evidence indicating mild PTSD symptoms is not wholly probative. Given the more severe symptoms documented above, the Board finds that a 70 percent rating is warranted prior to March 23, 2019. However, a rating higher than 70 percent is not warranted for any portion of the appeal period. First, the Veteran has none of the symptoms listed in the criteria for the 100 percent rating. Second, the evidence does not show that he exhibited any unlisted symptoms consistent with a 100 percent rating. The most recent VA examination in June 2019 noted impaired impulse control, obsessional rituals, difficulty adapting to stressful circumstances, and a history of suicidal ideation. These symptoms are all expressly contemplated by the currently assigned 70 percent rating. The only evidence that supports a 100 percent rating is when the Veteran received six days of in-patient treatment for depression and suicidal ideation in February 2019. While this level of symptom severity might otherwise be consistent with the 100 percent evaluation, it did not occur with sufficient frequency or duration to award the higher rating. This was the Veteran's only in-patient treatment during the appeal period, and the subsequent VA examinations in April 2019 and June 2019 both found that the Veteran did not have total impairment. Therefore, a rating higher than 70 percent is not appropriate in this case. 2. TDIU prior to March 23, 2019 A 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). In his May 2019 TDIU application form, the Veteran reported working as a driver or police officer from August 2015 to December 2015, January 2016 to May 2016, January 2017 to July 2017, October 2017 to August 2018, and September 2018 to March 2019. His monthly earnings were at least $2,500.00, and he had earned about $42,000.00 during the previous 12 months. Therefore, he was gainfully employed during the appeal period. The Board acknowledges the Veteran's reports regarding his difficulties with maintaining employment during this time. His transfer between different jobs and employers suggests that his service-connected disabilities interfered with his occupational functioning. However, his assigned disability ratings, including the assigned 70 percent rating for PTSD, already contemplate significant impairment in earning capacity and loss of working time. 38 C.F.R. § 4.1. However, the inability to obtain or maintain gainful employment prior to March 23, 2019 has not been shown. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.