Citation Nr: 21069819 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-34 445 DATE: November 19, 2021 ORDER Entitlement to an increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The evidence of record shows that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1987 to May 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously denied in a June 2019 Board decision which was vacated in June 2021. The case was placed in abeyance for 90 days following the vacatur and as more than 90 days have passed, the case is once again before the Board for readjudication. 1. Entitlement to an increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) In January 2016, the Veteran filed a formal claim for a TDIU, which also triggered a claim for an increased disability rating for his service-connected PTSD. The Veteran's service-connected PTSD is currently rated 50 percent disabling. The Veteran contends that his PTSD warrants a higher disability rating. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Evaluations for psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders (General Formula), a 50 percent rating is warranted for PTSD 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 such as, 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating for PTSD contemplates 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. Finally, a 100 percent disability rating is warranted for PTSD resulting 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. Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Turning to the relevant evidence, the VA treatment records show that the Veteran received ongoing treatment for his PTSD symptoms throughout the appeal period. The Veteran was afforded a VA psychiatric examination in February 2016. The VA examiner indicated that his primary symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss (such as forgetting names, directions, or recent events); and disturbances of motivation and mood. The examiner also noted that the Veteran presented with poor appetite; that he was neat, calm, and verbal; that he appeared fatigued; and that he denied suicidal/homicidal ideation. The Veteran reported that he lives alone, is going through a separation, has friends, and helps his parents who are getting older. The Veteran reported that he last worked as a machine operator in 2010 and that he has applied for jobs since that time but has not been hired by any of the potential employers. Overall, the examiner found that the Veteran's psychiatric symptoms were productive of occupational and social impairment with reduced reliability and productivity. However, the examiner indicated that the Veteran's current PTSD symptoms would not prevent gainful employment at this time. The Veteran submitted a private PTSD Disability Benefits Questionnaire (DBQ) from June 2017. The examiner indicated the Veteran experiences occupational and social impairment with reduced reliability and productivity due to his PTSD symptoms. The examiner also noted the following symptoms of PTSD: depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation or mood; and suicidal ideation although no current plan or intent. The examiner indicated that the Veteran's PTSD causes "moderate impairment in occupational and social functioning due to symptoms of reexperiencing, avoidance behaviors, difficulty with sleep, hypervigilance, exaggerated startle, mild memory problems, and depressed mood." Overall, the examiner found that the Veteran's PTSD symptoms impact both physical and sedentary employment and resulted in occupational and social impairment with reduced reliability and productivity. A private opinion from a psychologist Dr. H.G. noted the Veteran struggles with symptoms of depressed mood, hypervigilance, and disturbances of motivation and mood. Additionally, the Veteran has difficulty maintaining effective relationships. His PTSD symptoms are preventing him from maintaining substantially gainful employment. See May 2019 Private Opinion. The Board has also fully considered the lay statements of record, which are competent insofar as they relate to observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In support of his claim, the Veteran submitted statements from his aunt, mother, and pastor. They all described witnessing the Veteran isolate himself, including with his family, avoiding public places, and being unable to handle stress which would lead the Veteran to crying or panicking. Based on the foregoing, the Board finds that the preponderance of the evidence is in support of an increased rating of 70 percent, but no higher, for the service-connected PTSD for the period on appeal. It is apparent from the record that the Veteran experienced symptoms of suicidal ideation, inability to establish and maintain effective relationships, and difficulty in adapting to stressful circumstances. Therefore, the 70 percent, but no higher, rating is warranted. A rating of 100 percent is not warranted as the Veteran's PTSD did not result in total and 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. Therefore, entitlement to an increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Veteran contends that he is unemployable as a result of his service-connected disabilities. The Veteran primarily attributes his unemployability to his service-connected PTSD. Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As an initial matter, the Veteran meets the percentage requirements for a scheduler TDIU. See 38 C.F.R. § 4.16 (a). The Veteran is currently service connected for the following: PTSD, rated 70 percent disabling from December 10, 2011; Headaches, rated as 0 percent disabling June 19, 2018 and 50 percent disabling from November 5, 2019; Flat fee, rated as 10 percent disabling from December 10, 2011 and 30 percent from July 9, 2012; and Hypertension, rated as 20 percent disabling from June 19, 2018. He has a combined disability rating of 90 percent. Therefore, the remaining question for consideration is whether his service-connected disabilities render him unemployable. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The question is whether the Veteran can perform the physical and mental acts required by employment, not whether the Veteran can find employment. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). While there are discrepancies in the record regarding when exactly the Veteran stopped working (2010 or 2011), the fact remains that the Veteran is currently unemployed. The evidence of record indicates that the Veteran completed high school and that he was last employed as a machine operator at a manufacturing company. See VA Form 21-8940. He reported that he has tried to obtain employment since he last worked in 2010 or 2011 but that he has not been hired by any potential employers. A review of the objective medical evidence of record reveals the following: At his January 2012 VA psychiatric examination, the Veteran indicated that he last worked in December 2010 at a manufacturing plant where he was employed for years. He reported that he was laid off due to cutbacks. He denied missing time due to mental health problems. He reported having problems with irritability on the job but indicated that he was able to manage it by keeping to himself. He reported having problems with concentration that would slow him down and cause him to make mistakes. He reported that he had been looking for work in the past year but had not yet found a new job. The examiner found that the Veteran's psychiatric symptoms were productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. A January 2012 VA foot examination revealed that the Veteran had bilateral pes planus (flat feet) that resulted in pain with prolonged standing. An August 2013 VA foot examination revealed that the Veteran's flat feet were painful. The Veteran indicated that his work as a machine operator required him to stand on his feet for 2-3 hours at a time and wear steel boots for protection. He indicated that he could only stand for approximately one hour with minimal discomfort and that his feet would hurt if he had to stand for longer than one hour. He indicated that he would have to sit down. He indicated that he could do a standing physical job. At his September 2013 VA psychiatric examination, the Veteran reported that he graduated from high school in 1987 and that he did not attend college or technical school. The Veteran indicated that he was not currently employed and that he stopped working in November 2011 due to layoffs. The examiner found that the Veteran's psychiatric symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. During his February 2016 VA psychiatric examination, the examiner found that the Veteran's psychiatric symptoms were productive of occupational and social impairment with reduced reliability and productivity. However, the examiner indicated that the Veteran's current PTSD symptoms would not prevent gainful employment at this time. In June 2016, the Social Security Administration determined the Veteran was not disabled for Social Security purposes. This finding is not binding on the Board. The Veteran underwent another psychiatric examination in June 2017. The examiner indicated that the Veteran's PTSD causes "moderate impairment in occupational and social functioning due to symptoms of reexperiencing, avoidance behaviors, difficulty with sleep, hypervigilance, exaggerated startle, mild memory problems, and depressed mood." Overall, the examiner found that the Veteran's PTSD symptoms impact both physical and sedentary employment and resulted in occupational and social impairment with reduced reliability and productivity. The Veteran was afforded a VA headaches examination in August 2018. The VA examiner diagnosed the Veteran as having migraine headaches and migraine headache variants. Despite the Veteran's reports of pulsating or throbbing head pain on both sides of his head, sensitivity to light, and sensitivity to sound, the examiner noted that these headaches generally occurred 3-4 times per months and that each headache lasted less than one day. The examiner found that the Veteran's headache disability did not impact his ability to work. A private opinion from a psychologist Dr. HG noted the Veteran struggles with symptoms of depressed mood, hypervigilance, and disturbances of motivation and mood. Additionally, the Veteran has difficulty maintaining effective relationships. His PTSD symptoms are preventing him from maintaining substantially gainful employment. See May 2019 Private Opinion. The Veteran underwent a headaches examination in May 2019. The examiner noted the Veteran experiences prostrating attacks of migraine pain 3 times a week accompanied with sound sensitivity and reduced power of concentration. The examiner also reported the Veteran's headaches are debilitating and impact daily life including the ability to maintain gainful employment. In November 2019 the Veteran underwent a VA examination for his hypertension. The examiner noted the Veteran's hypertension affects his ability to work because when his blood pressure gets high, he gets periods of dizziness and fatigue. He has to take breaks frequently and he is not able to eat. Based on a comprehensive review of the record, and granting the Veteran the benefit of the doubt, the Board finds that the functional impairment from the Veteran's service-connected disabilities (PTSD, flat feet, hypertension, and migraine headaches) prevent him from obtaining or maintaining substantially gainful employment. (Continued on the next page) Accordingly, the Veteran meets the criteria for an award of TDIU. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The RO will assign an effective date for the TDIU award when it effectuates this decision. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.