Citation Nr: 21066404 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 09-12 156 DATE: October 29, 2021 ORDER A 70 percent rating for post-traumatic stress disorder (PTSD), from October 17, 2008 to May 5, 2014, is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected PTSD, from October 17, 2008 to May 5, 2014, is granted. FINDINGS OF FACT 1. From October 17, 2008 to May 5, 2014, the Veteran's service-connected PTSD has been characterized by symptoms resulting 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; impaired impulse control; and difficulty in adapting to stressful circumstances. 2. From October 17, 2008 to May 5, 2014, with resolution of the doubt in his favor, the Veteran's service-connected PTSD made him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. From October 17, 2008 to May 5, 2014, the criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.7, 4.130 Diagnostic Code (DC) 9411. 2. From October 17, 2008 to May 5, 2014, the criteria for a TDIU due to service-connected PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to April 1972. This matter is before the Board of Veterans' Appeals (Board) after a June 2021 United States Court of Appeals for Veterans Claims (Court) joint motion for remand (JMR) that vacated the Board's April 2020 decision. The Board has reconsidered the evidence of record in accordance with the June 2021 JMR and has decided the following: from October 17, 2008 to May 5, 2014, a 70 percent rating for PTSD will be granted, and from October 17, 2008 to May 5, 2014, a TDIU will be granted. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 4.1 (2016). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2016). 1. A 70 percent rating for PTSD, from October 17, 2008 to May 5, 2014, is granted. The Veteran contends that his service-connected PTSD warrants a higher rating than that which is contemplated by his 50 percent rating, for the period from October 17, 2008 to May 5, 2014. For the following reasons, a 70 percent rating, but no higher, for PTSD is warranted, for the period from October 17, 2008 to May 5, 2014. DC 9411 provides for a 50 percent rating is appropriate where the evidence shows 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is appropriate where the evidence shows 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is appropriate where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought process 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. Id. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Veteran's VA medical records show several reports of suicidal ideation throughout the period. Problems with anger, to include explosive outbursts, were also reported during the relevant period. The Veteran reported that he throws objects when irritable, and that his anger can be "off the wall." The record shows problems with work due to recurring anger and irritability. The record also shows that nightmares limit his ability to sleep to, as little as, two hours with an inability to return to sleep afterward. The record shows, at worst, the Veteran experiences severe anxiety in social settings. For the period from October 17, 2008 to May 5, 2014, a 70 percent rating, but no higher, is warranted. The evidence shows that the Veteran has consistently reported suicidal ideation during the period. The record shows that the Veteran has problems with anger, to include angry outbursts, severe anxiety in social settings, and significant difficulty sleeping due to nightmares. Therefore, a 70 percent rating is warranted, and the claim is granted. For the period from October 17, 2008 to May 5, 2014, a preponderance of the evidence is against a finding of a 100 percent rating. The Veteran has consistently denied, and the medical records show no delusions or hallucinations and there is no indication that the Veteran cannot perform activities of daily living. Therefore, a 100 percent rating is not warranted for the period. 2. A TDIU due to service-connected PTSD, from October 17, 2008 to May 5, 2014, is granted. VA regulations allow for the assignment of TDIU when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the Veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. Consideration may be given to the Veteran's education, special training, and previous experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Pursuant to this decision, the Veteran's PTSD is rated at 70 percent, effective October 17, 2008. Therefore, he meets the schedular criteria for a TDIU, from October 17, 2008. As discussed above, the record shows that the Veteran's PTSD causes suicidal ideation, angry outbursts, to include object throwing, significant sleep disturbance, and severe social anxiety. A May 2018 vocational rehabilitation report shows that the Veteran's PTSD resulted in anger and caused difficulty in working with co-workers and supervisors. A February 2020 vocational rehabilitation report shows that the Veteran's limitations on memory and concentration, caused by his PTSD, have a significant impact on employment related skills, such that they have been completely eroded. (CONTINUED ON THE NEXT PAGE.) From October 17, 2008 to May 5, 2014, a TDIU is warranted. The record shows that the Veteran's PTSD causes persistent suicidal ideation, angry outbursts, severe difficulty sleeping, severe social anxiety, and difficulty working with others. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, from October 17, 2008 to May 5, 2014, a TDIU is warranted, and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.