Citation Nr: 21069096 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 14-39 760 DATE: November 17, 2021 ORDER Entitlement to a 70 percent initial rating, but no higher, for posttraumatic stress disorder (PTSD) from September 2, 2009 to March 25, 2012 and since June 1, 2012 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 2, 2009 to March 25, 2012 and since June 1, 2012 is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. From September 2, 2009 to March 25, 2012 and since June 1, 2012, the Veteran's PTSD was manifested by symptoms causing occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. From September 2, 2009 to March 25, 2012 and since June 1, 2012, the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent rating, but no higher, for PTSD from September 2, 2009 to March 25, 2012 and since June 1, 2012 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU from September 2, 2009 to March 25, 2012 and since June 1, 2012 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to April 1973 and is the recipient of the Combat Action Ribbon. These matters are before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has appeared at two Board hearings in this matter in March 2015 and March 2021 before different Veterans Law Judges. The Veteran was advised of his right to a hearing before a third Veterans Law Judge; however, he waived that right at the March 2021 hearing. In May 2018 the Board remanded the appeals for further development. The issues have now been returned to the Board. In March 2020, the representative requested copies of the reports of any compensation and pension examinations conducted in the prior 12 months, pursuant to the Privacy Act. This request was acknowledged by VA in March 2020, but nothing in the claims file specifically indicates that the request was fulfilled. In July 2021 the representative submitted a private psychologist's opinion which explicitly notes consideration of the VA claims file, including the most recent January 2021 VA examination report. The Board therefore presumes that the March 2020 Privacy Act request was fulfilled. Moreover, given that this decision awards the benefits identified as sought by the claimant, including at the March 2021 Board hearing, the Board finds that there is no due process error in continuing to adjudicate the appeal at this time. Entitlement to a 70 percent initial rating for PTSD from September 2, 2009 to March 25, 2012 and since June 1, 2012 is granted. The Veteran contends that his PTSD is more severely disabling than represented by the 30 percent rating assigned from September 2, 2009 to March 25, 2012 and since June 1, 2012. As the Veteran is in receipt of a temporary total rating based on hospitalization for PTSD from March 26, 2012 to May 31, 2012 under 38 C.F.R. § 4.29, that period is not for consideration. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation 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. The Veteran's other specified trauma and stressor-related disorder with alcohol use disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under the general formula, a 30 percent evaluation is assigned when the evidence demonstrates 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned where there is 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. Id. A rating of 70 percent is assigned where there 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 inability to establish and maintain effective relationships. Id. A 100 percent schedular evaluation contemplates 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. The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the enumerated factors listed in 38 C.F.R. § 4.130, DC 9411. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Id. On VA examination in July 2010, psychiatric symptoms included intrusive thoughts, nightmares with loss of sleep, emotional reactivity, physical reactivity, avoidance of thoughts, feelings, conversations, activities, places and people which reminded him of stressors, loss of interest in activities, distancing from other people, hyperarousal, irritability, frequent impairment of concentration with moderate disruption of activity, watchfulness, and reactivity to loud noise. The Veteran was noted to have relationships with his son and daughter as well as two grandchildren. The examiner summarized the level of occupational and social impairment 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. On VA examination in May 2013, the psychiatric symptoms included depressed mood, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. The Veteran was noted to avoid family events. He struggled at night due to recurrent nightmares and avoided spending time with others. He reported getting into an altercation with a neighbor but had also been going fishing with a friend. He was noted to see his grandchildren regularly. The examiner summarized the level of occupational and social impairment 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. At his Board hearing in March 2015, the Veteran reported psychiatric symptoms of depression, anxiety, anger and isolation. He reported being unable to function with his family and neighbors and being a "loner." He reported having no friends. He reported problems concentrating on everyday things, including travelling, and described verbal altercations with coworkers while he was employed. In June 2015, a private psychologist, R.K., identified symptoms of nightmares, sleep paralysis, flashback episodes, hyper-vigilance, short fuse, moodiness, trouble achieving sleep, interpersonal distrust, social withdrawal and avoidance, fears, episodes of intense fear with escapism, history of interpersonal conflict with co-workers and neighbors, intermittent crying spells and uncontrolled emotionality, and inability to recall specific details regarding aspects of his combat duty. On a separate checklist, R.K. noted additional symptoms of deficiencies in family relations, persistent irrational fears, deficiencies in work or school, intermittent inability to perform activities of daily living, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of traumatic experiences, unprovoked hostility or irrationality, and inability to establish and maintain effective relationships. R.K. indicated that the PTSD symptoms produced impairments in the Veteran's ability to work, engage in social activities, including conflict with his family, impaired concentration, and ability to persist in tasks, and memory difficulties. R.K. opined that the PTSD symptoms would preclude the Veteran from engaging in gainful employment. On VA examination in January 2020, the psychiatric symptoms included depressed mood, anxiety, and chronic sleep impairment. The examiner noted the Veteran maintained contact with his two adult children, attended church and went fishing with a friend. The examiner summarized the level of occupational and social impairment 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. At the March 2021 Board hearing, the Veteran reported symptoms of anxiety, depression, and sleep paralysis. He reported difficulty with motivation and was unable to participate in past hobbies, including fishing. He reported crying spells at least twice per month and suicidal thoughts once per month or once every two weeks. He reported problems with anger, including toward those he believed to be lying. He described having no friends because others perceived him as "crazy." The Veteran stated that while he was employed, he had difficulties with coworkers due to anger and suspiciousness. He reported that the only family he was close with was his daughter. In a July 2021 letter, R.S., a private psychologist conducted a review of the claims file as well as an in-person examination of the Veteran. R.S. noted PTSD symptoms including intrusive recollection of traumatic events, suicidal ideation, dissociation, disorientation to time or place, auditory and visual hallucinations, depression, anxiety and panic, diminished frustration tolerance, psychomotor agitation and retardation, decreased energy, insomnia, nightmares, flashbacks, paranoia, hypervigilance, depression, anxiety, change in personality, mood disturbance, and feelings of guilt and worthlessness. R.S. stated that these symptoms were present since September 2, 2009 and that since that date, the PTSD symptoms produced occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and mood. With regard to the period from September 2, 2009 to March 25, 2012 and since June 1, 2012 the Board finds that a 70 percent rating is warranted. The medical evidence of record as well as the Veteran's lay statements present deficiencies in "most areas," including work, family relations, thinking and mood. In this regard, the record demonstrates psychiatric symptoms interfered with work prior to the Veteran's retirement, including paranoia, irritability and poor concentration. Irritability and isolation caused impairment in family relations. Paranoid and intrusive thoughts, as well as concentration and memory impairment caused a deficiency in the area of thinking. Irritability, depression, anxiety and suicidal ideation constituted an impairment in mood. The reported symptoms reasonably approximate the type of symptoms stipulated as warranting a 70 percent rating, including suicidal ideation and difficulty in adapting to stressful circumstances. On balance, this evidence is at least in equipoise as to whether the PTSD symptoms caused deficiencies in "most" areas throughout the period on appeal. However, the PTSD symptoms do not more nearly approximate the severity of symptoms stipulated as supporting a 100 percent rating at any time during the appeal period. The evidence preponderates against finding that any psychiatric symptoms caused total social impairment. In this regard, while the Veteran has reported significant difficulties establishing and maintaining family and personal relationships, the evidence indicates that he has maintained a relationship with his daughter throughout the appeal period and therefore is not totally socially impaired. This evidence preponderates against finding total occupational and social impairment necessary to support a 100 percent rating. Also, while the private psychologist noted that symptoms also included disorientation to time or place and auditory and visual hallucinations, there is no credible and persuasive evidence that such symptoms produced total functional impairment. Accordingly, based on the foregoing evidence, entitlement to a 70 percent rating, but no higher, for PTSD from September 2, 2009 to March 25, 2012 and since June 1, 2012 is granted. Entitlement to a TDIU from September 2, 2009 to March 25, 2012 and since June 1, 2012 is granted. The Veteran contends that he is unable to maintain employment due to his PTSD and left lower extremity shrapnel wounds with residuals scars. The issue of entitlement to an increased rating for PTSD is currently before the Board, to include consideration of the period from September 2, 2009 to March 25, 2012 and since June 1, 2012. The issue of entitlement to a TDIU from September 2, 2009 to March 25, 2012 and since June 1, 2012 is therefore part of the claim for increased rating before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU is authorized for any disability or combination of disabilities where the schedular rating is less than total, and the claimant is unable to secure and maintain substantially gainful employment because of the severity of service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. If two or more disabilities, at least one must be rated as at least 40 percent disabling, with sufficient additional service-connected disability to bring the combined rating to 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). For the above purpose, VA will consider disabilities resulting from common etiology, a single accident, or affecting a single body system as one disability. 38 C.F.R. § 4.16 (a). For a TDIU, the critical question is whether the veteran's service-connected disabilities alone are sufficient to cause unemployability, absent consideration of any nonservice-connected condition. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include her employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). From September 2, 2009 to March 25, 2012 and since June 1, 2012, the Veteran's PTSD is service-connected and rated 70 percent disabling. He had additional service-connected disabilities of left lower extremity shrapnel wounds rated 30 percent disabling since January 8, 2010; and left lower extremity painful scars rated noncompensable from January 8, 2010 and 20 percent disabling since January 24, 2020. His combined rating was thus 80 percent from January 8, 2010 to March 25, 2012, and since June 1, 2012. 38 C.F.R. § 4.25. Thus, the appellant met the schedular requirements for a TDIU from September 2, 2009 to March 25, 2012 and since June 1, 2012. 38 C.F.R. § 4.16. On VA psychiatric examination in July 2010, the Veteran was noted to have retired "several months ago." The Veteran noted some history of interpersonal conflict at work. In his September 2012 TDIU application, the Veteran reported that he was unable to maintain employment due to his PTSD and left leg disability. He asserted that he first became unable to work in January 2010, but last worked full time in April 2010 as a diesel mechanic. The Veteran reported two years of college education. On VA examination in April 2013 the Veteran reported retiring in 2010 due to health issues related to his left leg. He reported a history of interpersonal conflict at work, including being fired but rehired. At his March 2015 Board hearing the Veteran reported that he did not believe he could maintain gainful employment due to his service-connected disabilities. He reported that he left employment due to left leg symptoms, that it would be difficult for him to be around other people due to PTSD symptoms, and that lack of concentration would impact his work. He testified that prior to retirement he was reprimanded several times at work, but that his boss did not fire him due to sympathy for his combat service in Vietnam. In his June 2015 opinion, R.K. opined that the Veteran would likely be precluded from employment due to PTSD symptoms. In his July 2021 letter, R.S., opined that the Veteran's PTSD symptoms had precluded any gainful employment since September 2, 2009. At his March 2021 Board hearing, the Veteran reiterated that he was unable to work due to PTSD and left leg symptoms. He reported that prior to retirement he had problems getting along with coworkers and supervisors and was fired three times, but rehired. The Veteran reiterated that his boss rehired him due to his status as a combat Veteran. In this case, the evidence of record is at least in equipoise as to whether the Veteran's PTSD precluded all forms of substantially gainful employment since September 2, 2009. The evidence indicates that the Veteran was unemployed since April 2010. The April 2013 and July 2021 private opinions indicate that the Veteran was unemployable due to PTSD symptoms. The medical and lay evidence relate significant additional functional impairment due to the left lower extremity shrapnel wounds and scars including difficulty standing and walking. While the July 2010, April 2013, and January 2020 VA examiners indicated a lower level of occupational and social functioning due to PTSD, the VA examinations of record do not address the question of employability in isolation, nor do they consider the added effects of the Veteran's left lower extremity disability. Accordingly, the Board assigns greater probative weight to the April 2013 and July 2021 private opinions, as well as the Veteran's competent and credible lay statements in this regard. While the Veteran maintained employment from September 2009 to April 2010, he has credibly testified that such employment was sheltered. In this regard, the Veteran stated that he was repeatedly reprimanded, fired, and rehired prior to his retirement, due to interpersonal difficulties caused by PTSD symptoms. The Veteran testified that he was only afforded continuing employment during that period due to his employer's sympathy for his combat veteran status. The Board attributes great probative value to these lay statements and finds that the Veteran's employment from September 2009 to April 2010 constituted sheltered employment. Assignment of a TDIU in this case is warranted from September 2, 2009. (Continued on next page) As the evidence is at least in equipoise, entitlement to a TDIU from September 2, 2009 to March 25, 2012 and since June 1, 2012 is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals TANYA SMITH Veterans Law Judge Board of Veterans' Appeals S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.