Citation Nr: 21066684 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 19-07 349 DATE: November 1, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to July 19, 2018 is granted subject to the rules and regulations governing the award of monetary benefits. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) after July 19, 2018 is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) effective May 25, 2017 is granted subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. For the initial period on appeal prior to July 19, 2018, the Veteran's service -connected PTSD was manifested by occupational and social impairment with deficiencies in most areas, symptoms productive of total occupational and social impairment have not been shown. 2. Since July 19, 2018, the Veteran's service - connected PTSD did not manifest in symptoms productive of total occupational and social impairment. 3. As of May 25, 2017, the Veteran has met the schedular requirements throughout the appeal period and the competent evidence reasonably establishes the Veteran's service connected PTSD is of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. For the period on appeal prior to July 19, 2018, the criteria for an initial disability rating of 70 percent, but no higher, for the Veteran's service-connected PTSD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, 4.21, Diagnostic Code (DC) 9411. 2. For the period on appeal from July 19, 2018, the criteria for a rating in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, 4.21, (DC) 9411. 3. As of May 25, 2017, a total disability rating for compensation based upon individual unemployability due to a service-connected disability is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) from an April 2018 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for PTSD and assigned a disability evaluation of 50 percent effective May 25, 2017. Subsequently, a March 2019 rating decision increased the assigned rating to 70 percent effective July 19, 2018. The Veteran testified before the undersigned Veterans Law Judge during an October 2021 virtual Board hearing. The Board notes that the Veteran, through his attorney, agreed that the 70 percent rating and the grant of TDIU for the entirety of the relevant period resolves this appeal and is a full grant of benefits in this case. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's claim for TDIU was granted by an August 2021 rating decision effective July 19, 2018. Since this is considered a partial grant of benefits for the issue on appeal, entitlement to a TDIU prior to July 19, 2018 remains before the Board for adjudication pursuant to Rice. Increased Rating Claims Disability ratings are determined by comparing a Veteran's symptomatology during the pertinent period on appeal with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. With a claim for an increased initial rating (as in this case), separate "staged" ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service - connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to an initial rating for PTSD in excess of 50 percent prior to July 19, 2018 and in excess of 70 percent thereafter. The Veteran is currently assigned an initial rating of 50 percent for PTSD prior to July 19, 2018 and 70 percent thereafter. As will be discussed more fully below, the Board finds that a 70 percent rating but no higher is warranted for the Veteran's service-connected PTSD for the entire period on appeal. The Veteran's PTSD, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a 50 percent rating is assigned for a mental disorder that results in 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. Id. 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. Id. 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. A July 2017 East Point VA Mental health psychiatry evaluation indicated that the Veteran's psychiatric disabilities were diagnosed as PTSD, unspecified depressive disorder with a history of methamphetamine use disorder although the Veteran had remained sober since January 2014. Symptoms included intrusive thoughts of the traumatic event, nightmares, hypervigilance, irritability, exaggerated startle response, sleep disturbance, weight changes, fatigue, and feeling agitated. The Veteran reported 10 prior psychiatric hospitalizations due to feeling paranoid and depressed. The Veteran had past suicidal ideation. He reported that in 2015 he swallowed Vicodin while depressed but he vomited the pills up and did not need hospitalization. In 2013 he pointed a gun at himself but talked himself out of shooting. Medications included risperidone and prazosin. The treating physician noted the Veteran continued to endorse an improvement with symptoms, but it was unclear whether he was taking medications as prescribed. The Veteran denied any suicidal ideation or homicidal ideation at that appointment. The Veteran's VA Medical Center (VAMC) records throughout the appeals period indicated that he suffered from symptoms of anxiety, sleep disturbance, flashbacks, auditory hallucinations, intrusive memories, nightmares, social withdrawal, hypervigilance, irritability, aggressiveness, depression, and suicidal thoughts. The Veteran was afforded a VA examination in February 2018 to assess the severity of his PTSD. The Veteran reported symptoms of hyperarousal, hypervigilance, intrusive thoughts and images of traumatic events, anxiety, depression, fatigue, feeling on edge, irritability, isolation and withdrawal from others, difficulties participating in and enjoying activities, impaired thought processes, impaired judgment, suspiciousness, and chronic sleep impairment. The examiner opined that the Veteran's psychiatric impairment was characterized by occupational and social impairment with reduced reliability and productivity. The examiner did not find that the Veteran was in imminent risk of suicide. On August 2, 2018, a high - risk flag was added to the Veteran's VA medical records based on a self report of self- directed violence occurring two weeks prior. Therefore, the evaluation of his service connected PTSD was increased to 70 percent effective July 19, 2018, the estimated date of the suicide attempt (2 weeks prior to August 2, 2018) which triggered the establishment of the high - risk identification at the VA Hospital. Although there was no medical documentation of the suicide attempt, no evidence of record contradicted the Veteran's statement. The Veteran was again examined by VA in June 2021.The examiner diagnosed PTSD and based on his interview with the Veteran opined that his psychiatric disability was characterized by occupational and social impairment with reduced reliability and productivity. The Veteran reported symptoms of hyperarousal, hypervigilance, intrusive thoughts and images of traumatic events, anxiety, depression, fatigue, feeling on edge, irritability, isolation and withdrawal from others, difficulties participating in and enjoying activities, impaired thought processes, impaired judgment, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In a July 2021 VA Addendum medical opinion, the examiner noted that the Veteran has significant difficulty functioning around other people, has difficulty functioning as a team member and feels uncomfortable around others. The Veteran testified at the hearing. He exhibited a high level of paranoia and agitation during his testimony indicative of symptomatology associated with his service - connected PTSD. He additionally testified that he had suicidal ideation throughout the period on appeal. As noted above, the Veteran has been assigned a 70 percent rating for his service-connected PTSD as of the date of a self - reported suicide attempt on July 19, 2018. However, the Board finds that an initial 70 percent rating is warranted prior to that date as well. In this regard, the Board finds that the October 2021 testimony of the Veteran and the symptoms he experienced for the entire period on appeal to be competent and credible and affords his lay statements great weight. Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007). The Board notes that in addition, the Veteran's suicidal ideations have been noted in the treatment records throughout the period on appeal. The Board finds that such information is fact relevant and significant in determining the appropriate assignment of a disability rating. The Board also finds that the same evidence, preponderates against a finding of an initial disability rating in excess of 70 percent. While the Veteran continued to experience significant deficiencies occupationally, the record reflects that socially he maintained close relationships with his children and grandchildren. Although there is evidence of suicidal ideation, the Veteran has not complained that those disturbances are frequent or cause him to alter his behavior relative to his family in response. Accordingly, the Board concludes that the symptoms of the Veteran's PTSD have not resulted in total social and occupational impairment. In conclusion, it is the Board's opinion that the Veteran's PTSD should have an initial disability rating of 70 percent and no higher, for the entire time period on appeal. TDIU 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). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to July 19, 2018. Prior to July 19, 2018, the Veteran's only service-connected disability was posttraumatic stress disorder (PTSD) now rated at 70 percent. Thus, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16 (a), are satisfied. In light of the Board's decision that the Veteran is entitled to a rating of 70 percent rating for his psychiatric disability for the entire period on appeal, he has met the schedular rating requirements since the date of his claim. The Veteran contends that his service-connected disability renders him unemployable. On review of the record, the Board finds that such is reasonably shown. The Veteran is a high school graduate with some college credits. Records from the Social Security Administration indicate that he has past relevant work from 1992 to 2007 as construction worker and general laborer which is considered work that is heavy and semi skilled. The Veteran was found disabled by SSA in July 2012 from all occupations on the basis of degenerative joint disease and anxiety disorders. Notably, in a mental residual functional capacity assessment conducted by SSA medical evaluators, the Veteran was determined to be markedly limited in his ability to complete a normal workday and work week without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. In a July 2021 PTSD medical opinion addendum, the examining psychologist opined that it was at least as likely as not that the Veteran's work history minimal work history through 2006 was impacted by aspects of his service connected PTSD. Specifically, the Veteran has significant difficulty around other people, has difficulty functioning as a team member, and feels uncomfortable around others. (Continued on the next page) The Board gives great weight to the findings of the July 2021 VA examiner's opinion pertaining to the Veteran's work limitations as a result of his PTSD. It is consistent with the finding of the SSA mental residual functional capacity assessment, and the symptoms identified throughout the medical evidence contained within the Veteran's claims file. Given the foregoing body of evidence, the Board resolves all reasonable doubt in the Veteran's favor (as required by law) and concludes that the evidence supports a finding that his service-connected psychiatric disability precludes him from securing or following substantially gainful employment and has done so for the entire period on appeal. Therefore, the criteria for establishing entitlement to TDIU are met. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.