Citation Nr: 21066259 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-28 470 DATE: October 29, 2021 ORDER A minimum 70 percent rating for posttraumatic stress disorder (PTSD) with depressed mood is granted. Throughout the appeal, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 70 percent for PTSD with depressed mood is remanded. FINDINGS OF FACT 1. The Veteran's PTSD with depressed mood was productive of occupational and social impairment with deficiencies in most areas. 2. Throughout the appeal, the Veteran's service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a minimum 70 percent rating for the service-connected PTSD with depressed mood have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU throughout the appeal have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 4, 1996 to September 1968, to include service in the Republic of Vietnam. In October 2021, the Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge. The evidence of record raises the issue of whether the Veteran is unemployable due, in part, to service-connected PTSD. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the issue on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. A minimum 70 percent rating for PTSD with depressed mood is granted. The Veteran seeks a rating in excess of 50 percent for his service-connected psychiatric disorder. The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. According to 38 C.F.R. § 4.126(a), a mental disorder shall be rated "based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." 38 C.F.R. § 4.126(a). For the reasons outlined below, the Board finds that a minimum 70 percent rating is warranted. Under Diagnostic Code 9411, a 70 percent rating, 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. A 100 percent rating is warranted if evidence shows 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. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (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). The Board finds that the Veteran's psychiatric symptoms, chiefly his suicidal ideation, are suggestive of occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Initially, the Board notes that in March 2015 and April 2018, a VA examiner opined that the Veteran's service-connected psychiatric disorder results in 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. However, during the October 2021 hearing, the Veteran testified that he experiences suicidal ideation, anger, anxiety, feelings of hopelessness, outbursts of violence, and sleep impairment. The Veteran explained that as a truck driver, in service he collected dead bodies, the faces of which he sees every day. He further testified that he struggles with survivor's guilt on account of the in-service death of his friend. He testified that his anger makes him want to hurt othersrecounting how he has almost physically attacked others and has physically assaulted his grandson. The Board finds the Veteran's account credible and highly probative as to the level of his social and occupational impairment. For these reasons, the Board finds that a 70 percent rating is warranted for the Veteran's service-connected psychiatric disorder. 2. Throughout the appeal, a TDIU is granted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). 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 non-exertional) 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran is service-connected for PTSD with depressed mood, rated 70 percent disabling; tinnitus, rated 10 percent disabling; and hearing loss and erectile dysfunction, each rated zero percent disabling. As a result of the above-discussed increased rating for his psychiatric disorder, the Veteran's service-connected disabilities satisfied the schedular criteria. See 38 C.F.R. § 4.16. Additionally, the Board finds that the Veteran's service-connected psychiatric and audiological disabilities have been of sufficient severity to produce unemployability. In this regard, the Veteran has a high school education in and was last employed as a janitor in June 2016. See, e.g., VA Form 8940 (February 2018). The evidence shows that since the Veteran was last employed, his psychiatric disorder has resulted in resulted in the following symptoms which significantly impair his ability to obtain and retain employment: suicidal ideation, anger, anxiety, feelings of hopelessness, outbursts of violence, and sleep impairment. Additionally, the Veteran's service-connected audiological disabilities impair his ability to communicate, which would likely interfere with his ability to learn a new vocation. After resolving any doubt in the Veteran's favor, the Board finds the impact of the Veteran's service-connected disabilities has rendered him incapable of obtaining or maintaining substantially gainful, even in light of his education and occupational history. See Geib, 733 F.3d 1350. REASONS FOR REMAND Entitlement to a rating in excess of 70 percent for PTSD with depressed mood is remanded. VA examination is needed to ascertain the current severity of the Veteran's service-connected psychiatric disorder as the evidence indicates that such may have worsened since his most recent examination in April 2018. Specifically, during the hearing, the Veteran reported suicidal ideation and violent outburstshe did not report these symptoms during the April 2018 examination. Additionally, the evidence indicates that there may be outstanding VA medical records relevant to the severity of the Veteran's psychiatric disorder. In this regard, while VA medical treatment records indicate that the Veteran has been in receipt of ongoing care, records of such care are only current through February 2018. Relevant statutory and regulatory provisions emphasize the importance of obtaining VA records as part of the duty to assist. See 38 U.S.C. § 5103A (c)(2); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Consequently, the Board concludes that it must remand this case in order to obtain any such records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2018 to present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected psychiatric disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.