Citation Nr: 21065771 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-39 716 DATE: October 27, 2021 ORDER From March 10, 2014 to November 19, 2015, a rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. From March 10, 2014, a rating in excess of 70 percent for PTSD is denied. From March 10, 2014, but not earlier, a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From March 10, 2014, the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas. Total occupational and social impairment has not been found. 2. From March 10, 2014, the Veteran's service-connected PTSD has precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From March 10, 2014 to November 19, 2015, the criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. From March 10, 2014, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9411. 3. From March 10, 2014, but not earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1969. The case is on appeal from January 2017 and September 2017 rating decisions. In May 2020, the Veteran testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his spouse, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. From March 10, 2014 to November 19, 2015, a rating in excess of 50 percent for PTSD; and in excess thereafter. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9411. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent evaluation is warranted for PTSD where there is 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 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 when symptoms such 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 cause total occupational and social impairment. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Procedural History Procedurally, following the Veteran's March 2014 claim for an increased PTSD rating, the October 2014 rating decision increased his rating to 50 percent effective March 10, 2014. The Veteran submitted a June 2015 notice of disagreement (NOD) which was followed by a January 2017 statement of the case (SOC). The Board notes a substantive appeal was not submitted following the January 2017 SOC; however, the January 2017 rating decision which increased the Veteran's PTSD rating to 70 percent was a continuation of the October 2014 rating decision. Thereafter, the Veteran submitted a timely January 2018 NOD, followed by a June 2018 SOC and August 2018 substantive appeal. Based on the appeal of the January 2017 rating decision, the Board finds the appeal period back to the March 2014 claim for an increased rating. Thus, the PTSD issue on appeal is for a rating in excess of 50 percent from March 10, 2014 to November 19, 2015, and a rating in excess of 70 percent thereafter. As the Board is reviewing the Veteran's PTSD rating back to March 10, 2014, the issue of an effective date prior to November 20, 2015 for the 70 percent PTSD rating is now moot. Facts Following the Veteran's March 2014 claim for an increased PTSD rating, he was afforded a September 2014 VA examination. The examiner indicated the Veteran's PTSD causes occupational and social impairment with occasional decrease in work efficiency and an intermittent inability to perform occupational tasks. The Veteran reported that he is married but has decreased outside social contacts and describes himself increasingly as a loner. The examiner indicated his symptoms include irritable behavior, hypervigilance, an exaggerated startle response and sleep difficulty. He further reported the Veteran has anxiety, suspiciousness, mild memory loss, difficulty in establishing and maintaining effective work and social relationships and obsession rituals which interfere with routine activities. The examiner noted the Veteran's PTSD symptoms have increased in intensity since he no longer has his work activities to keep himself busy. A September 2014 statement was submitted from N.P., which indicated the Veteran's symptoms of PTSD have progressively worsened following his retirement from work. He reported the Veteran displays moderate to severe levels of anxiety and depression. An additional September 2014 statement was submitted from R.S. which indicated he has known and worked with the Veteran for over 25 years in construction trades. He stated he has not been able to hire the Veteran for work since the beginning of 2014 due to his physical conditions, including difficulty handling tools. He noted the Veteran has also become more agitated and argumentative due to his PTSD. The Veteran was afforded a November 2015 VA examination in which the examiner reported the Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran has been married for 42 years but reported having no friends. The examiner indicated his psychiatric symptoms include irritable behavior with angry outbursts, hypervigilance, an exaggerated startle response, problems with concentration and sleep problems. Additionally, he found the Veteran has mild memory loss, difficulty in understanding complex commands, impaired judgment, 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, and an inability to establish and maintain effective relationships. The Veteran was afforded a May 2017 VA examination in which the examiner indicated the Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity. The examiner found many of the same psychiatric symptoms as the previous VA examiners, including irritable behavior with angry outbursts, sleep disturbance, depression, anxiety, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran showed a normal ability to communicate, his thought process is linear, and goal directed, he exhibited no psychotic thoughts and showed no suicidal or homicidal ideation. Thereafter, the VA examiner submitted an August 2017 addendum opinion which indicated the Veteran demonstrates reduced occupational and employment reliability and productivity due to his PTSD. Additionally, an August 2018 private medical opinion was submitted in which the examiner opined the Veteran's PTSD has "precluded him from engaging in substantial gainful employment since at least 2015 or longer." She reported the Veteran had difficulties sustaining work secondary to PTSD symptoms, including irritability, agitation, social withdrawal, hypervigilance and low tolerance for others. She noted the Veteran had frequent work conflicts, including with supervisors, coworkers and customers. The examiner stated the Veteran does not have effective coping mechanisms, is unable to adapt to stressful circumstances and would be unable to maintain acceptable levels of productivity. She noted his psychiatric symptoms have remained persistent and worsened despite consistent intervention and compliance with medical management. Analysis The Board determines that an increased rating to 70 percent for the Veteran's PTSD is warranted from March 10, 2014, the entire period on appeal. The Board finds from that date, the Veteran's PTSD symptoms most closely approximate occupational and social impairment with deficiencies in most areas and a 70 percent rating. This is so particularly when reasonable doubt is resolved in the Veteran's favor. See 38 C.F.R. §§ 3.102, 4.3. However, from March 10, 2014, the Board finds a rating in excess of 70 percent is not warranted and the criteria for a 100 percent rating have not been met at any point during the appeal period. With regard to the rating period prior to November 20, 2015, the evidence shows the Veteran's PTSD approximates occupational and social impairment with deficiencies in most areas. As noted, the September 2014 VA examiner indicated the Veteran's psychiatric symptoms include irritable behavior, hypervigilance, anxiety, mild memory loss, difficulty in establishing and maintaining effective work and social relationships and obsession rituals which interfere with routine activities. He stated the Veteran's symptoms have increased in intensity since he no longer has his work activities to keep himself busy. A lay statement from September 2014 indicated the Veteran's symptoms of PTSD have progressively worsened following his retirement from work with moderate to severe levels of anxiety and depression. Further, the November 2015 VA examiner reported symptoms of difficulty with concentration, difficulty in adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. Such symptoms support that the Veteran's PTSD has caused occupational and social impairment with deficiencies in most areas from March 10, 2014, and as such, a 70 percent rating is warranted. While an increased rating to 70 percent is warranted from March 10, 2014, a further increase to 100 percent for total occupational and social impairment is not warranted at any time during the appeal period. The Board acknowledges the severity of the Veteran's PTSD symptoms, including difficulty in adapting to stressful circumstances, including work or a worklike setting, and obsession rituals which interfere with routine activities. However, the evidence does not support that his PTSD causes total social impairment which is required for a 100 percent rating. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a persistent threat of danger to himself or others, gross impairment in thought processes or communication, not knowing one's own name, the names of close relatives, or one's occupation, and an inability to perform activities of daily living, including maintenance of even minimal personal hygiene. The Board finds the Veteran has not exhibited such symptoms. Furthermore, the evidence shows that he has been married for over 45 years. Although the Board is granting a TDIU from March 10, 2014, as discussed below, the 100 percent level for PTSD is a different standard. Additionally, no reasonable reading of total social impairment, which is a requirement for a 100 percent rating, would encompass being married for over 45 years. Rather, the Veteran's level of social impairment is contemplated by the 70 percent rating for which there is an inability to establish and maintain effective relationships. In sum, the Board finds that from March 10, 2014 to November 19, 2015, a 70 percent rating is warranted. However, a rating in excess of 70 percent is not supported during the appeal period. The benefit of the doubt has been resolved in the Veteran's favor and a further increased rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall 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). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis The Veteran contends that his service-connected PTSD prevents him from obtaining and maintaining substantially gainful employment. In his most recent April 2017 TDIU application, the Veteran indicated he last worked full-time and became too disabled to work in January 2014. During the Veteran's May 2020 Board hearing, his education was reported as a high school graduate with two years of junior college. He has indicated no additional training, although he noted "on the job training." The psychiatric evidence of record has been largely discussed above. Additionally, a January 2014 medical opinion from a psychologist indicated the Veteran's service-connected conditions have "profoundly affected" his ability to gain and maintain employment. With regard to the Veteran's psychiatric symptoms, the VA examination reports during the appeal period indicated symptoms of irritable behavior, hypervigilance, an exaggerated startle response, sleep difficulty, as well as suspiciousness, impaired judgment, problems with concentration, difficulty in understanding complex commands, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and obsession rituals which interfere with routine activities. The September 2014 examiner also noted the Veteran's PTSD symptoms have increased in intensity since he no longer has his work activities to keep himself busy. Further, the August 2018 private examiner opined the Veteran's PTSD has "precluded him from engaging in substantial gainful employment since at least 2015 or longer." She noted his psychiatric symptoms have remained persistent and worsened despite consistent intervention and compliance with medical management. In light of the evidence of record, as well as the Veteran's education, training, and work history, the Board finds his PTSD has precluded him from securing or following a substantially gainful occupation since March 10, 2014. The Board determines from the March 2014 claim for an increased PTSD rating, but not earlier, the evidence has reached a level of equipoise as to whether the Veteran's PTSD has prevented all substantially gainful employment. The medical evidence of record, including several VA examination reports, show the Veteran experienced significant PTSD symptoms, including worsening in March 2014. Moreover, the September 2014 VA examiner indicated his PTSD symptoms impact him daily, including with obsession rituals and difficulty with work and social relationships. Thus, when affording the Veteran all reasonable doubt, the Board determines his service-connected PTSD has precluded him from securing or following a substantially gainful occupation from March 10, 2014. With regard to the period prior to March 10, 2014, the Board determines a TDIU is not supported. As discussed above, the Veteran stated in the April 2017 TDIU application that he last worked full-time and became too disabled to work in January 2014. The Board acknowledges that the Veteran's PTSD has impacted his ability to work prior to March 10, 2014; however, the medical and lay evidence does not support that his service-connected PTSD or his other service-connected disabilities prevented all substantially gainful employment until March 10, 2014. (Continued on the next page) Next, the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a). Per the current decision, the Veteran's service-connected PTSD is rated as 70 percent disabling from March 10, 2014. Thus, the schedular criteria per 38 C.F.R. § 4.16(a) have been met. In sum, resolving reasonable doubt in favor of the Veteran, the Board finds he is prevented from securing and following substantially gainful employment due to his PTSD from March 10, 2014. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, a TDIU is warranted from March 10, 2014, but not earlier. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.