Citation Nr: 21068259 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-43 439 DATE: November 9, 2021 ORDER Entitlement to an initial rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity. It was not manifested by occupational and social impairment in most areas or total occupational and social impairment. 2. The Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent, but no higher, for PTSD, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1970. He died in November 2015. His surviving spouse has been substituted as the Appellant for purposes of processing the claim to completion. See June 2021 correspondence. The Veteran appealed February 2012 and July 2013 rating decisions by the Agency of Original Jurisdiction (AOJ). Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board of Veterans' Appeals (Board) will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran's PTSD was rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide that a 30 percent evaluation is warranted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for 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 effective work and social relationships. Id. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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 the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Considering all relevant evidence, the Board finds that an initial disability rating of 50 percent, but no higher, for the Veteran's service-connected PTSD was warranted for the entire period on appeal. The Veteran exhibited occupational and social impairment with reduced reliability and productivity. The Veteran stated he had disturbing memories and was seeking mental health treatment. See February 2010 Veteran statement. The August 2011 examination report noted recurrent and distressing dreams, difficulty with sleep, irritability or outbursts of anger, depressed mood, and anxiety. December 2011 treatment records noted the Veteran isolated himself, that he had mood swings, nightmares, flashbacks of images and shadows, irritability, and social avoidance, and that he did not use alcohol or drugs. The February 2012 examination report noted intrusive recollections, distressing dreams, hearing screams and seeing shadows, avoidance, and suspiciousness. Nevertheless, medical records reflect that the Veteran's thought process and communication skills were within normal limits. The evidence did not demonstrate persistent delusions or hallucinations. The Veteran did not exhibit inappropriate behavior or suicidal ideation. The Veteran remained married and did not abuse drugs or alcohol. The Veteran was able to function and complete daily living activities. Additionally, the Veteran exhibited normal orientation, appearance, thought content and process, while showing adequate insight and judgment. While the Veteran did exhibit some symptoms contemplated in occupational and social impairment with deficiencies in most areas, the symptomatology is not of sufficient severity, frequency, and duration to result in a rating higher than 50 percent. Hence, the criteria for a finding of a 70 or 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms remained constant at 50 percent levels for his PTSD, staged ratings are not warranted. Thus, the Board finds that the criteria for an initial disability rating of 50 percent, but no higher, for PTSD are met for the entire period on appeal. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board notes the Veteran raised TDIU in conjunction with his appeal regarding a higher rating for PTSD. See February 2012 NOD. The Veteran previously worked installing drywall until 2005. See July 2012 VA Form 21-8940. He had a high school education. Id. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis for the entire period on appeal. The Veteran was rated at least at a combined 70 percent disabling and his PTSD is now rated at 50 percent disabling for the entire period on appeal. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. As noted above, the Veteran's PTSD was productive of symptoms such as irritability, anger, mood swings, and avoidance. The September 2010 examination report regarding hearing loss noted significant effects on occupation due to hearing difficulties. The December 2011 examination report regarding nerves noted the Veteran was unable to pick up screws or nails due to numbness in his fingertips and that he had no strength in the arms above the head due to pain and numbness. The October 2012 examination report regarding nerves noted the Veteran's statements of being unable to work due to weakness. The October 2012 examination report regarding hearing loss noted difficulty hearing and understanding speech, as with talking on the phone. A February 2014 vocational assessment found the Veteran would be unable to return to his employment doing drywall, that even sit-down work would be difficult given his peripheral neuropathy, and that overall, there are many employment barriers that would make it difficult for the Veteran to maintain employment. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran worked in home-improvement and construction doing drywall. This was a physical labor job that required lifting and handling power tools. However, medical events notes that the Veteran's neuropathy hindered his ability to lift objects above the head and pick-up screws. Such physical activities are required in such a job. Therefore, given the Veteran's physical limitations, he would not have been able to work in any position that was physically demanding. Furthermore, the Veteran's PTSD and hearing loss symptoms would prevent the Veteran from working in a position in which he would have to work with and communicate with others. This includes customer service or retail positions. Furthermore, the Veteran did not have training or education for an isolated desk job as with computers. Nevertheless, his neuropathy would have prevented satisfactory performance in anything requiring fine motor skills in the hands as typing and writing. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran's service-connected disabilities, in combination, at least as likely as not prevented him from obtaining and maintaining substantially gainful employment for the entire period on appeal. Accordingly, resolving all doubt in the Veteran's favor, the criteria for TDIU have been met, the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate 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.