Citation Nr: 21066069
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 17-00 195
DATE: October 28, 2021

ORDER

A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with depressive disorder not otherwise specified (NOS) and polysubstance dependence (hereinafter acquired psychiatric disorder), prior to July 7, 2016 and from March 1, 2017, is denied.

A total disability rating based on individual unemployability (TDIU), for the period prior to September 8, 2015 is denied.

A TDIU from September 8, 2015 to July 7, 2016, is granted. 

A TDIU from July 7, 2016 to March 1, 2017 is dismissed.

FINDINGS OF FACT

1. For the periods prior to July 6, 2016 and from March 1, 2017, the severity, frequency, and duration of the symptoms from the Veteran's acquired psychiatric disorder most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

2. From July 7, 2016 to March 1, 2017, the Veteran was in receipt of a 100 percent evaluation for an acquired psychiatric disorder. 

3. For the period prior to September 8, 2015, the Veteran's service-connected disabilities did not render him unable to secure and follow substantially gainful employment. 

4. For the period from September 8, 2015 to July 7, 2016, the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow substantially gainful employment.

CONCLUSIONS OF LAW

1. For the periods prior to July 7, 2016 and from March 1, 2017, the criteria for a disability rating in excess of 70 percent an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

2. For the period from July 7, 2016 to March 1, 2017, the issue of entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

3. For the period prior to September 8, 2015 the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.16(a).

4. For the period from September 8, 2015 to July 7, 2016, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.16(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Marine Corps from February 1980 to January 1986.

In a November 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted a temporary 100 percent rating for PTSD for psychiatric hospitalization, effective July 7, 2016. In a July 2017 rating decision, the AOJ discontinued the temporary 100 percent rating, effective March 1, 2017, and re-established a 70 percent rating from that date. Despite the award of a temporary 100 percent rating during the appeal period, higher ratings for the Veteran's psychiatric disorder are still available for the periods prior to and from the date of that temporary award; therefore, the claim for a higher rating prior to July 7, 2016 and from March 1, 2017 remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

During the pendency of the appeal, the Veteran's prior representative, the Military Order of the Purple Heart (MOPH) closed its service officer program, and requested that VA remove recognition of MOPH as an organization authorized to prepare, present, and prosecute claims for VA benefits. The Veteran was provided the opportunity to obtain new representation; however, in correspondence received in August 2021, the Veteran indicated his intent to represent himself. 

Finally, the Board notes also that although additional, relevant evidence has been associated with the claims file since the November 2016 Statement of the Case (SOC), and the AOJ has not issued a Supplemental SOC (SSOC) to address this evidence, the additional evidence was considered and readjudicated in tue July 2017 rating decision. See 38 C.F.R. § 19.31. While the readjudication of the claim was conducted in a rating decision rather than a SSOC, the additional evidence clearly has been considered by the AOJ in the first instance. The Veteran is not prejudiced because he was notified of the AOJ's consideration of the evidence and readjudication of his claim in a rating decision rather than a SSOC. Accordingly, the Board finds that a waiver of AOJ consideration is not required for the evidence considered by the AOJ as of the July 2017 rating decision.

Increased Rating 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Under the General Rating Formula, a rating of 70 percent is warranted for a mental disorder that results in 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 assigned when the condition results in 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.

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.

Entitlement to a rating in excess of 70 percent for PTSD.

In December 2013, the Veteran filed an increased rating claim for his PTSD. As a result, in July 2014, he underwent a VA examination to evaluate his acquired psychiatric disorder. The examiner diagnosed PTSD, alcohol abuse disorder, and polysubstance use disorder. The examiner noted that, at the time of the examination, the Veteran had been sober for 9 months. Additionally, the examiner remarked that it appeared the Veteran's PTSD was in remission as he did not endorse any current symptoms of PTSD. During the examination, the examiner found the Veteran was cooperative, maintained good eye contact, calm, and relaxed. Additionally, the examiner found the Veteran's speech to be intact and spontaneous, and thought process was noted to be intact and organized. Based on the findings of the examination, the examiner determined the Veteran's level of occupational and social impairment was best described as occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner also opined that the Veteran's level of occupational and social impairment was most likely due to alcohol and drug use. See July 2014 VA Examination. 

In September 2015, the Veteran underwent another VA examination to evaluate his acquired psychiatric disorder. The examiner diagnosed PTSD, persistent depressive disorder, alcohol use disorder, and cannabis use disorder. Upon examination, the Veteran was determined to exhibit symptoms consisting of: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; and neglect of personal appearance and hygiene. Additionally, the examiner noted symptoms of nightmares, temper alterations, emotional blunting, avoidance of crowds, reexperiencing of traumatic events, hopelessness, worthlessness, isolation, past suicidal ideation, and homicidal ideation. Despite this symptomatology, the Veteran was determined to be capable of managing his financial affairs. Ultimately, the examiner determined the Veteran's level of occupational and social impairment was best described as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment thinking and/or mood. See September 2015 VA Examination.

In May 2017, the Veteran underwent another VA examination to assess his acquired psychiatric disorder. The examiner diagnosed PTSD, depressive disorder, not otherwise specified (NOS), and polysubstance abuse in sustained remission. Upon examination, the examiner indicated that the Veteran exhibited symptoms consisting of: depressed mood; anxiety, suspiciousness; disturbances of motivation and mood; difficulty in establishing and maintaining work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective work relationships; impaired impulse control, such as unprovoked irritability with periods of violence. Additionally, the examiner found the Veteran to experience flashbacks, nightmares, isolation, hopelessness, and hypervigilance. Despite this symptomatology, the examiner held that the Veteran was capable of managing his financial affairs. Ultimately, the examiner opined that the Veteran's level of occupational and social impairment was best described as 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. See May 2017 VA Examination.

VA treatment records for the appeal period show that the Veteran continued to suffer from PTSD symptoms, depression, and substance abuse. Additionally, they show the Veteran was admitted to an inpatient facility to receive treatment for substance abuse from July 2016 to February 2017. See VA Treatment Record received May 2017. The Veteran has been awarded a temporary 100 percent rating for the period that he was receiving inpatient treatment.

Based on the foregoing evidence, for the relevant appeal period, the Board finds that a higher 100 percent rating is not warranted for the Veteran's acquired psychiatric disorder. The Veteran has not demonstrated symptomatology reflective of total occupational and social impairment. In this regard, the Veteran has not been shown to exhibit gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation of time or place; memory loss for names of close relatives, own occupation, or own name; or other symptoms approximating the criteria for a 100 percent schedular rating. The Board does not deny that the Veteran's psychiatric condition impacts his ability to work. Nevertheless, the evidence does not show that the Veteran suffers the symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration that cause occupational or social impairment equivalent to a 100 percent disability rating. Mauerhan, 16 Vet. App. at 443.

2. Entitlement to a TDIU prior to March 1, 2017.

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id.

The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b).

For the entirety of the period on appeal, the Veteran has met the criteria for a TDIU. His service connected disabilities consisted of: acquired psychiatric disorder (70 percent from October 27, 2010, 100 percent from July 7, 2016, 70 percent from March 1, 2017); and cold weather injury of the right hand (right hand disability) (10 percent from December 5, 2013). As the Veteran had one disability ratable at 60 percent, he has met the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for the entirety of the appeal period. 

For the period from July 7, 2016 to March 1, 2017, the Board finds the issue of entitlement to a TDIU moot based on the 100 percent rating assigned for an acquired psychiatric disorder. A TDIU based on a single service-connected disability may be available when a combined rating of 100 percent is assigned, but it may not be predicated on a disability which itself is rated at 100 percent. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). For this period, as entitlement to a TDIU would be predicated the on Veteran's acquired psychiatric disorder, which itself is rated at 100 percent, the Veteran's claim for a TDIU is rendered moot. Accordingly, from July 7, 2016 to March 1, 2017, entitlement to a TDIU is dismissed. 

As the Veteran has been granted a TDIU from March 1, 2017, this analysis will focus on whether a TDIU is warranted for the period prior to July 7, 2016.

The record shows that the Veteran attended three years of high school and one year of college. Additionally, he reported that he last worked fulltime in May 1986. Since that date, the record indicates the Veteran has worked part-time jobs in construction, as a plumber, as a handyman, and in security. See July 2014 VA Examination; see also Application for Increased Compensation Based on Unemployability.

In July 2014, the Veteran underwent a VA examination to assess the severity of his acquired psychiatric disorder. During the examination, the Veteran reported that he was divorced and that he had one daughter who he did not see. Additionally, he indicated that he lived alone in an apartment for Veterans and that he had buddies who he hung out with. In terms of work, the Veteran stated his last job was working sterilizing medical and surgical instruments at the VA; however, he noted that his supervisor discontinued his employment after he got into a confrontation with an employee. Additionally, the Veteran reported being self-employed as a plumber, handyman, and construction worker for 17 years. On examination, the examiner found that the Veteran's PTSD appeared to be in remission as the Veteran did not endorse any current symptoms of PTSD or depression. Additionally, at the time of the examination, the examiner noted that the Veteran had been sober from drugs and alcohol for nine months. The examiner also determined that the Veteran was capable of managing his financial affairs. Ultimately, the examiner opined that the Veteran's level of occupational and social impairment was best described as occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant distress, or; symptoms controlled by medication. Additionally, the examiner held that the Veteran's occupational and social impairment was most likely due to alcohol and drug use. See July 2014 VA Examination. 

In July 2014, the Veteran underwent a VA examination to assess the nature and etiology of his claimed right hand condition. During the examination, the Veteran reported that while serving in Alaska, he poured gasoline on his hand in negative 30 degree weather. As a result, the Veteran reported that his ring finger on his right hand became numb and swollen, which caused him to stay in the hospital for one week. Additionally, he stated that his fingertip fell off but grew back. Lastly, the Veteran indicated that he had normal sensation except for the lateral side of his finger. Despite the Veteran's reports, the examiner found that no objective evidence existed to support a diagnosis for the Veteran's claimed condition. See July 2014 VA Examination.

In August 2014, the Veteran underwent another VA examination to assess the nature and etiology of his claimed right hand disability. The examiner diagnosed a cold injury of the right hand with neuropathy. Due to his right hand condition, the examiner noted that the Veteran experienced symptoms consisting of: arthralgia or other pain; cold sensitivity; and numbness. Additionally, the Veteran reported experiencing hand cramps and joint aching that was worse during cold exposure. Due to cramps associated with his right hand disability, the Veteran indicated he had difficulty grabbing tools. See August 2014 VA Examination.   

On September 8, 2015, the Veteran underwent another VA examination to assess the severity of his acquired psychiatric disorder. On examination, the examiner determined that the Veteran experienced symptoms consisting of: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; 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; inability to establish and maintain effective work relationships; impaired impulse control, such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene. Due to the above symptomatology, the examiner determined that the Veteran's level of occupational and social impairment was best described as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Additionally, the examiner maintained that the Veteran's abilities to obtain/maintain gainful employment, complete tasks in a timely manner, establish healthy interpersonal relationships, partake in social settings, and optimally function were significantly and severely impaired by a combination of his mental health diagnoses. See September 2015 VA Examination. 

Based on the foregoing evidence, the Board finds that a TDIU is not warranted for the period prior to September 8, 2015. In pertinent part, there is no indication that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. Relevantly, the July 2014 VA examiner indicated the Veteran's acquired psychiatric disorder appeared to be in remission as he did not endorse any current symptoms. Further, with regard to the Veteran's right hand condition, the July 2014 VA examiner found no objective evidence to support a diagnosis during the examination. While the Veteran was noted to experience difficulty holding tools because of his right hand in the VA examination conducted two months later, in August 2014, the evidence of record also indicates the Veteran continued to work as a plumber, albeit on a part time basis. Furthermore, based on the Veteran's education/experience, and the fact that he had no limitations that would affect his ability to perform other, non-physical occupations, the Board finds that, prior to September 8, 2015, the Veteran's service-connected disabilities did not render him unable to secure and maintain substantially gainful employment. 

For the period from September 8, 2015 to July 7, 2016, after reviewing the evidence and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities, specifically his acquired psychiatric disorder, rendered him unable to secure and follow a substantially gainful occupation. In that regard, the Board notes that during the VA examination conducted on September 8, 2015, it was indicated the Veteran's psychiatric symptomatology rendered him unable to complete tasks in a timely manner, establish healthy interpersonal relationships, partake in social settings, and optimally function were significantly diminished. The Board finds that these limitations significantly eroded the Veteran's occupational base, making it difficult or nearly impossible for the Veteran to secure and follow a substantially gainful occupation. Accordingly, a TDIU is warranted for the period from September 8, 2015 to July 7, 2016.

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Talton, John H.

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.