Citation Nr: 21071048 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-52 615 DATE: November 29, 2021 ORDER The criteria for an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's PTSD causes occupational and social impairment with deficiencies in most areas but not total social and industrial impairment. 2. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to an initial rating in excess of 70 percent for PTSD The Veteran's PTSD has been evaluated at 70 percent disabling under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. A 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is assigned 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. 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Turning to the evidence, the Veteran underwent a VA examination in April 2014. The Veteran's reported and observed symptoms included depressed mood; anxiety; panic attacks that occur weekly or less often; suspiciousness; mild memory loss; chronic sleep impairment; flattened affect; impaired judgment; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work related setting; and inability to establish and maintain effective relationships. The examiner noted that the Veteran appearance was neat, with good hygiene and casual dress. He had appropriate behavior, denied suicidal ideation and homicidal ideation, and his though process was within normal limits. The Veteran underwent another VA examination on April 2019. The Veteran's reported and observed symptoms included depressed mood; anxiety; panic attacks that occur weekly or less often; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationship; difficulty adapting to stressful circumstances, including work or work like setting; inability to establish and maintain effective relationships; and suicidal ideation. The clinician noted that the Veteran was punctual for the appointment, dressed casually but neat, was bearded and wore a ball cap. His affect was tense, agitated and worried. He his mood was dysphoric. He answered questions in somewhat of a disorganized way, but no formal thought disorder was evident. He appeared agitated, guarded, and uncomfortable. He was alert, oriented and engage with surroundings and no symptoms of psychosis were evident. Most recently, the Veteran underwent a VA examination in March 2021. He reported that he lives in his mother's basement and rarely leaves home other than for appointments and to get groceries. He denied legal issues and noted his last physical altercation was when he was sucker-punched by someone who recognized him as a former police officer. The Veteran's reported and observed symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; impaired judgement; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; suicidal ideation; and inability to establish and maintain effective relationships. The examiner observed mild somnolence, but the Veteran was alert and oriented. His interaction was initially cautious but cooperative and agreeable. He was a reliable historian relative to records. Affect was restricted in range and congruent, with dysphoric mood. He was tangential times two. Thought process was logical and goal directed. There was mild to moderate agitation, but no psychosis. The Veteran denied current suicidal ideation, plan, intent and attempts. Treatment records show symptomatology consistent with that noted on VA examinations. The Board finds that the evidence, to include treatment records, examinations, and the Veteran's November 2020 testimony, more nearly approximate the criteria for a 70 percent rating than a 100 percent rating. None of the VA examiners found the disability resulted in total social and occupational impairment. Additionally, the evidence does not show gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living; disorientation to time or place or symptoms of similar severity, duration, or frequency. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Although he has consistently reported mild memory loss, such as forgetting names, directions and or recent events, he has consistently been oriented to time or place; own occupation, or own name. Additionally, the examiner's noted the Veteran is able to manage his own finances. The Board notes that the Veteran has reported some suicidal thoughts, and his April 2019 and March 2021 VA examinations noted suicidal ideation without intent or plan. Throughout the appeal period, the Veteran has either denied suicidal thoughts or at most, reported having suicidal thoughts with no plan for suicide, noting that concern for his mother and dog would deter self-harm. He consistently denied intent and/or a plan involving self-harm at other VA appointments and on all his VA examinations. The 2021 VA examiner noted the Veteran was a low acute risk for suicide. Thus, the Board finds that the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by a 100 percent disability rating. Having considered all of the Veteran's symptoms the Board finds that the overall level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. Accordingly, the Board finds that a preponderance of the evidence is against a rating in excess of 70 percent for PTSD, and to this extent the appeal is denied. 2. Entitlement to TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As an initial matter, the Veteran is service-connected for PTSD rated at 70 percent, right ankle strain rated at 10 percent and left ankle strain status post injury with medial malleolus bony proliferation rated at 10 percent. The Veteran's combined disability rating is 80 percent. Thus, the schedular criteria for TDIU have been met. The remaining question is whether the Veteran's service-connected disabilities rendered the Veteran incapable of maintaining a substantially gainful occupation that is consistent with her education and work experience. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The highest level of education attained by the Veteran is a high school diploma and some college credits. The Veteran worked full-time as a police officer from 2007 until August 2011, when he was fired for carrying a prohibited weapon into a shooting. On the 2021 VA examination he reported that he was a compliance officer in the marijuana industry beginning in January 2014 for 6 months until he quit due to anger issues associated with illegal practices at the marijuana warehouse. He reported he has been unemployed since that time. He confirmed that information on a January 2021 application for TDIU. Upon review of the evidence of record, the Board finds that entitlement to TDIU is warranted. In June 2019, a VA psychologist opined that the Veteran's depressed mood, anxiety, frequent panic attacks, chronic sleep impairment, disturbance of motivation, and spatial disorientation would likely significantly impair his reliability at showing up for work consistently and on time. These symptoms along with his intrusive symptoms, long and short term memory impairment, suicidal ideation, and impaired concentration would likely significantly impact his productivity and efficiency in a work setting. The Veteran's irritability, suspiciousness and/or paranoid ideation, and inability to establish and maintain effective relationship would likely significantly impair his ability to work around other people in an employment setting. The various anxiety, panic attacks, and difficulty adapting to stressful circumstances would likely significantly impair his ability to work under any sort of pressure. Upon review of the record and after resolving all doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. Thus, entitlement to TDIU is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, 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.