Citation Nr: 21069600 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-02 101 DATE: November 18, 2021 ORDER For the period prior to March 2, 2015, a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. For the period from March 2, 2015 to November 17, 2016, a 100 percent rating for PTSD is granted. Entitlement to an effective date earlier than March 2, 2015, for the assignment of a 100 percent rating for PTSD is denied. Entitlement to total disability rating based on individual unemployability from August 29, 2013 to March 2, 2015 is denied. FINDINGS OF FACT 1. The Veteran filed a claim seeking an increased rating for his PTSD on August 29, 2013. 2. Between August 29, 2013 and March 2, 2015, the Veteran's PTSD did not result in total occupational and social impairment. 3. On March 2, 2015, the Veteran was hospitalized for his PTSD; the evidence from that point forward demonstrated his PTSD had worsened in severity and resulted in total occupational and social impairment. 4. Prior to March 2, 2015, the Veteran's service-connected PTSD disability did not render him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD prior to March 2, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a 100 percent rating for PTSD from March 2, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to total disability rating based on individual unemployability prior to March 2, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to September 2005. In July 2021, the Veteran testified at a virtual hearing before the undersigned. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to November 18, 2016 Service connection for psychiatric disability was granted in a November 2011 rating action, with an initial assigned evaluation of 70 percent. No appeal was received from that rating action. In a November 2016 rating action, the evaluation assigned the psychiatric disorder was increased to 100 percent, effective November 18, 2016. The Veteran contends in the alternative either that he is entitled to a rating in excess of 70 percent for psychiatric disability, or that the 100 percent assigned the same disorder should be made effective earlier. The record reflects that following the November 2011 rating action, the Veteran next filed a claim concerning his psychiatric disorder on August 29, 2013. No claim, formal or informal, was submitted between those two dates. In connection with the August 2013 claim, the Veteran was afforded a February 2014 VA PTSD examination, which reflected that the Veteran reported living with his ex-girlfriend. He stated he spent most of his time at home alone, anxious and depressed, often watching television and napping. The examiner noted the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Behaviorally, the Veteran's affect was noted to be flat, and he appeared anxious but cooperative. The examiner also noted the Veteran experienced inappropriate guilt. The Veteran reported last working as a doorman at a tavern late in 2013 but didn't like it and felt the work was stressful so he quit after six days of work. Prior to that, in 2012 he worked for UPS for two to three weeks but "felt trapped" and quit. Between January and March 2013, he worked as a bar door guard but quit one night because he felt the work was stressful. His next job was also as a bar door guard, but he was fired after one night because he let in two people who were under the age of 18. The examiner determined the Veteran was capable of work in a work setting in which work is routine, supervision is loosely applied, and contact with the public minimal. The examiner also stated the Veteran's difficulty with employment in the past has usually been because he was in high stressful positions, and therefore, has shown poor judgment in terms of what jobs to apply for. A review of the Veteran's VA treatment records shows that on March 2, 2015, the Veteran was voluntarily hospitalized for seven days due to worsening depressive symptoms and distressing thoughts of death and dying. The Veteran continues to be treated for his PTSD symptoms with counseling and medications. A November 2016 VA PTSD examiner found the Veteran was totally impaired at that time and unable to work. Based on this VA examination, the RO increased the Veteran's PTSD disability rating to 100 percent effective November 18, 2016, the date of the VA examination. During the July 2021 Board hearing, when asked by his representative if the symptoms identified at the November 2016 VA examination were happening to the same intensity and frequency as at the beginning of 2015, the Veteran replied in the affirmative. The undersigned went on to ask the Veteran if his symptoms were essentially the same a year before the 2015 claim as when he presented the claim in 2015, to which the Veteran replied yes. Looking at the evidence from August 29, 2013 to March 2015, the February 2014 VA examiner documented that the Veteran lived with an ex-girlfriend, but was otherwise socially isolated. His symptoms included depressed mood, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran's description of his work history indicated that he would quit jobs because he felt they were stressful, although one recent job terminated because of the Veteran's violation of policy. The examiner concluded that the Veteran was capable of work in a work setting in which work is routine, supervision is loosely applied, and contact with the public minimal, and that the Veteran's employment difficulties were associated with poor judgment in terms of what jobs he had sought. Given that the evidence establishes that the Veteran was not totally isolated, socially, and that the examiner concluded the Veteran was able to work if he started applying for more appropriate jobs, and as the examiner's assessment is consistent with the Veteran's symptomatology and work history, the Board finds that for the period prior to March 2, 2015, the Veteran's PTSD was not productive of total occupational and social impairment. The Board acknowledges the Veteran's 2021 testimony to the effect that his current level of impairment was the same prior to March 2015, but points out that his testimony is inconsistent with the actual contemporaneous evidence, and that the Veteran did not actually provide an explanation in support of his testimony. Accordingly, the Board finds that an evaluation in excess of 70 percent for PTSD prior to March 2, 2015 is not warranted. On March 2, 2015, the Veteran was psychiatrically hospitalized, representing a clear and serious deterioration of his mental disorder. Within two years of that hospitalization he was examined by VA, at which time the examiner concluded that the Veteran was totally impaired and unable to work. The Board finds that the examiner's opinion confirmed the worsening of the Veteran's PTSD that was first demonstrated on March 2, 2015. For this reason, the Board finds that the Veteran met the criteria for a 100 percent rating for PTSD as of March 2, 2015. Turning to the alternative claim of an earlier effective date, the Board points out that the prior analysis encompasses any analysis that would be conducted under the effective date claim. That is, the claim for assignment of an earlier effective date first requires establishing the date of the claim, which in this case, as already analyzed and determined by the Board, is August 29, 2013. As the effective date is dependent on the later of the date of claim or the date entitlement arose, the Board would next determine the date entitlement arose. This analysis is no different than that already undertaken by the Board with respect to entitlement to an evaluation in excess of 70 percent. That is, the date entitlement arose would be tied to when the evidence demonstrated that the criteria for the increased rating were met. As discussed already, the criteria for a 100 percent rating were not met prior to March 2, 2015; no additional analysis is required. There is nothing in 38 C.F.R. § 3.400(o) which suggests that a different definition of "entitlement arose" is at play than application of the rating criteria. Consequently, the date entitlement arose in this case, or March 2, 2015, is the proper effective date for the grant of a 70 percent evaluation. The Board notes that under 38 C.F.R. § 3.400(o)(2), in some circumstances an effective date may be advanced up to one year prior to the filing of a claim, if it is factually ascertainable that an increase in disability occurred during that period. That regulation only applies, however, when the increase in disability occurred during the one year period preceding the claim. In this case, the increase in disability occurred more than a year after the claim. Consequently, 38 C.F.R. § 3.400(o)(2) is not for application. In sum, the Veteran is not entitled to a rating in excess of 70 percent rating for PTSD for the period prior March 2, 2015, including through the mechanism of an earlier effective date for the assignment of a 100 percent rating. He is entitlement to a 100 percent rating for PTSD for the period beginning March 2, 2015. 2. Entitlement to total disability rating based on individual unemployability from August 29, 2013 to March 2, 2015 At the outset, the Board notes that herein the Veteran has been awarded a 100 percent schedular rating for his PTSD from March 2, 2015 to November 17, 2016. The Board thus finds that the Veteran's claim for TDIU for that period is now moot, given that PTSD is the only disorder for which service connection is in effect. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). As for the period prior to March 2, 2015, the Board finds that the Veteran's PTSD disability has not been found to have rendered the Veteran unable to secure and follow substantially gainful employment. As noted previously, a February 2014 VA PTSD examination report reflects the Veteran reported his most recent work history as follows. At some point in 2012 he worked for UPS for two to three weeks but "felt trapped" and quit. Between January and March 2013, he worked as a bar door guard but quit one night because he felt the work was stressful. His next job was also as a bar door guard, but he was fired after one night because he let in two people who were under the age of 18. The Veteran reported his last position was working as a doorman at a tavern late in 2013 but he didn't like it and felt the work was stressful, so he quit after six days of work. The examiner determined the Veteran was capable of work in a work setting in which work is routine, supervision is loosely applied, and contact with the public minimal. The examiner also stated the Veteran's difficulty with employment in the past has usually been because he was in high stressful positions, and therefore, has shown poor judgment in terms of what jobs to apply for. As an example, the examiner noted being a bouncer at a bar is not conducive to someone with a longstanding anxiety disorder. The examiner summarized that he believed if the Veteran were in a work setting in which work was routine, his supervision loosely applied, and contact with the public was held to a minimal, he could function in that work setting even with his PTSD at the current level. A January 2015 private vocational assessment shows that the vocational consultant noted a December 2011 VA examiner's opinion that the Veteran's mental disorder is less likely than not to render him unable to secure and maintain substantially gainful employment. At the time of the examination the Veteran was gainfully employed by UPS. The consultant states that the Veteran reported he was unable to maintain that job due to his PTSD symptoms and was forced to quit. The Veteran also reported that he had been terminated or forced to leave all of the other jobs that he attempted since being discharged from the Army. Lastly, the consultant noted in December 2013, the Veteran received a doctor's note to be excused from massage therapy classes he had been enrolled due to his PTSD. The examiner concluded that it is more likely than not the Veteran was unemployable due to his service-connected disability and had been since 2009. Based on the above evidence in the claims file, entitlement to TDIU prior to March 2, 2015 is not warranted. From August 29, 2013, when the Veteran filed his claim for an increased rating for PTSD there is no evidence the Veteran's PTSD disability rendered him unable to maintain substantially gainful employment. Although the Veteran reported to the January 2015 vocational consultant that he was forced to leave or had been terminated from all jobs he had since discharge, that is in contrast to his report to the December 2014 VA examiner. During that examination, the Veteran reported he was fired from one job as a doorman because he allowed admission to the bar to two people who were underage, not because of his PTSD disability. Additionally, the Veteran reported he left another job because he didn't like it and thought it was stressful. Lastly, the Veteran stated he quit his job with UPS after about three weeks because he felt "trapped". As the preponderance of the evidence from August 29, 2013 to March 2, 2015 does not show that the Veteran was unable to maintain substantially gainful employment due to his service-connected PTSD, TDIU for this time period is not warranted and the claim must be denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.