Citation Nr: 21071563 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-11 432 DATE: November 30, 2021 ORDER Entitlement to an increased disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) from December 22, 2008 to June 29, 2018 is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an increased disability rating higher than 70 percent for PTSD for the entire appeal period is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from December 22, 2008 to June 29, 2018 is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. From December 22, 2008 to June 29, 2018, the symptoms and overall impairment caused by the Veteran's service-connected PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but have not at any time during the appeal period more nearly approximated total occupational and social impairment. 2. From December 22, 2008 to June 29, 2018, the Veteran's service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience otherwise qualified him. CONCLUSIONS OF LAW 1. From December 22, 2008 to June 29, 2018, the criteria for an increased disability rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. Throughout the entire appeal period, the criteria for an increased disability rating higher than 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, DC 9411. 3. From December 22, 2008 to June 29, 2018, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to September 1971. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, continued the 50 percent disability rating for PTSD and denied entitlement to a TDIU. The Veteran timely appealed these matters. In January 2018, the Board remanded the claims for an increased disability rating for PTSD and entitlement to a TDIU for further development, to include obtaining a VA examination and outstanding VA and medical treatment records. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's January 2018 remand instructions by sending the Veteran a VA Form 21-4142, obtaining outstanding VA treatment records, and as demonstrated by the discussion below, obtaining a VA examination that is adequate to decide the claim for an increased disability rating for PTSD. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). In February 2020, the AOJ granted an evaluation of 70 percent, effective June 29, 2018, for the Veteran's service-connected PTSD, creating staged ratings, and awarded a TDIU from June 29, 2018. As the Veteran has not indicated satisfaction with these awards, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). The Veteran requested a Board hearing before a Veterans Law Judge (VLJ) in the VA Form 9 he submitted in March 2020 in response to the February 2020 Supplemental Statement of the Case issued for the claims on appeal. He withdrew his hearing request in an April 2021 statement from his representative. Entitlement to an increased disability rating for PTSD Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. 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 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. The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411, and is rated under the General Rating Formula for Mental Disorders. The Veteran's service-connected PTSD is evaluated at 50 percent from December 29, 2004, and 70 percent from June 29, 2018. As discussed further below, the Veteran is entitled to a 70 percent disability rating for PTSD from December 22, 2008, the date of the claim for an increased disability rating, to June 29, 2018. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted when 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. 38 C.F.R. § 4.130. A 70 percent disability rating is warranted when 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. Under the General Rating 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). The symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In December 2009, the Veteran presented for a VA PTSD examination. He reported that he lived by himself, although he was engaged, and occasionally talked to his six children and neighbors. He avoided crowded situations and had chronic anger issues and difficulty dealing with other individuals. The Veteran indicated that he was unemployed and had not worked since November 2004. He noted some difficulty getting along with people when stressed out, irritability, chronic mood symptoms, sleep difficulties, and nightmares of Vietnam. He experienced occasional mood symptoms manifested by sadness, lack of interest in activities, difficulty with attention, concentration, fatigue, and occasional hopeless feelings. The Veteran denied current homicidal or suicidal ideation. In June 2018 during a VA PTSD examination, the Veteran reported he experienced insomnia and restless nights and days with low motivation. He reported difficulties in accomplishing tasks, irritability, and wanting to isolate. The Veteran found that people at church and supportive people in his life were therapeutic. He endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. There was no suicidal or homicidal ideation, and no evidence of auditory verbal hallucinations, psychosis, or mania. The VA psychiatrist found that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In February 2021, the Veteran submitted a statement reporting that his problems with PTSD, anger, and dealing with people have progressively worsened since separation from service. He indicated he had a hard time keeping employment as he was unable to deal with people, leading to physical and verbal altercations with coworkers and supervisors. The Veteran additionally noted that he suffered from nightmares, was homeless at one time, divorced twice, and spent time in jail. He turned to drugs to attempt to quiet the noise in his head and went to rehab in 2010. He indicated that he still has the same issues and is an angry individual who does not leave his house often. For the following reasons, the symptoms and impairment of the Veteran's PTSD more nearly approximate the criteria for an increased disability rating of 70 percent, but no higher, from December 22, 2008 to June 29, 2018. From December 22, 2008 to June 29, 2018, the Veteran endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, irritability, and occasional mood symptoms manifested by sadness, lack of interest in activities, difficulty with attention, concentration, fatigue, and occasional hopeless feelings. In addition, the evidence of record shows that, from December 22, 2008 to June 29, 2018, the Veteran experienced occupational and social impairment with deficiencies in most areas. Moreover, there is a lack of evidence of record establishing that the Veteran's service-connected PTSD symptoms suddenly became worse on June 29, 2018. In this regard, an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the Veteran's disability] first manifested." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Considering the Veteran's February 2021 credible statement that his symptoms have been of approximately the same severity since his separation from service, and in light of the medical evidence of record indicating that the disability has been of approximately the same severity throughout the appeal period and did not suddenly get worse on the date of the June 2018 VA PTSD examination, it is at least as likely as not that the Veteran's PTSD symptoms more closely approximated occupational and social impairment with deficiencies in most areas from December 22, 2008 to June 29, 2018. Based on the evidence of record, including the lay and medical evidence of record, the Veteran's symptoms and impairment from December 22, 2008 to June 29, 2018 more nearly approximated occupational and social impairment with deficiencies in most areas as required for an increased disability rating of 70 percent. The Veteran is not, however, entitled to a higher, 100 percent disability rating during the appeal period. The evidence of record did not show that the Veteran experienced symptoms such as grossly inappropriate behavior, his thought content did not appear obsessive, delusional, or impaired to reality, he did not experience memory loss for names of close relatives, own occupation, or own name, he did not show an intermittent inability to perform activities of daily living, including maintenance of minimal hygiene, and he denied experiencing suicidal and homicidal ideation. Moreover, the evidence of record reflects that overall impairment did not more nearly approximate total occupational and social impairment. In this regard, the Veteran attended church, was married, and maintained relationships with his children and neighbors. This reflects that the impairment caused by the Veteran's symptoms did not more nearly approximate the total occupational and social impairment required for a 100 percent disability rating. In reaching the above conclusions, the Board is mindful that the symptoms listed in the rating schedule are essentially examples of the type and degree of symptoms indicative of the level of impairment required for each such rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). As explained above, the Board has found that that the evidence of record shows that the Veteran has manifested sufficient symptoms of the type and extent, frequency, or severity (as appropriate) to result in the occupational and social impairment with deficiencies in most areas required for the increased disability rating of 70 percent. 38 C.F.R. § 4.130. However, he did not show symptoms of the type and extent, frequency, or severity (as appropriate) to result in total social impairment required for the disability rating of 100 percent as he had some social interactions and relationships, reflecting that his overall level of impairment did not more nearly approximate total social impairment. Id. The evidence of record reflects that, for the entirety of the appeal period, the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate an increased disability rating of 70 percent, but no higher, for his service-connected PTSD from December 22, 2008 to June 29, 2018. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, other than the issue of entitlement to a TDIU discussed below, with respect to his claim. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a TDIU The Veteran is in receipt of a TDIU from June 29, 2018. However, the issue of entitlement to a TDIU is part and parcel of the increased rating claim filed on December 22, 2008. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, the appeal period thus begins on that date, or within a year prior if unemployability was factually ascertainable. 38 U.S.C. § 5110(b)(3) ("The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability occurred if application is received within one year from such date"); 38 C.F.R. § 3.400(o)(2) (awarding an increased evaluation for disability compensation as of the "[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred"). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). 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 Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran is in receipt of service connection for PTSD, rated 50 percent disabling from December 29, 2004, and 70 percent from December 22, 2008, and atherosclerotic cardiovascular disease, rated 10 percent disabling from March 25, 2010. The Veteran's combined disability rating is 50 percent from December 29, 2004, and 70 percent from December 22, 2008. Thus, he is eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16(a) from December 22, 2008. On the Veteran's August 2009 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran indicated that he completed three years of college, trained in data processing for three months, and has not worked full-time since November 2004. In December 2009 during a VA PTSD examination, the Veteran reported he was employed as a teaching assistant for 10 years and also worked as a printer making billboards. He was fired for fighting and poor work attendance. A VA physician found that mental status examination did not manifest cognitive deficits or obvious thought disorder that would prevent the Veteran from holding meaningful employment. However, considering the Veteran's history of violent and aggressive behavior, poor coping skills, inability to deal with stressful situations, and anger issues, his employability was somewhat limited. The VA physician found that the Veteran might still benefit from a low functioning, less stressful job at which contact with other people was minimal. In February 2021, the Veteran indicated in a statement that he had a hard time keeping jobs. Between 2000 to 2010, he lost four or five jobs for being unable to deal with people, leading to physical and verbal altercations with coworkers and supervisors. The Veteran reported that he stopped working in 2005 because he could not deal with people. For the following reasons, entitlement to a TDIU from 22, 2008 to June 29, 2018 is warranted. The evidence of record reflects that the Veteran attended college for three years and worked as a teaching assistant and printer until he stopped working in 2004 or 2005. The Veteran experienced symptoms associated with his service-connected disabilities that resulted in significant functional impairments which would interfere with his ability to secure and follow any substantially gainful employment, to include chronic anger issues and difficulties dealing with fellow employees and supervisors. The evidence of record shows that symptoms and impairments associated with his service-connected disabilities would prevent him from performing any type of substantially gainful employment. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (The "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). For the foregoing reasons, the Veteran is unable to complete job duties that he is qualified for based on his educational and occupational background due to his service-connected disabilities. Thus, his service-connected disabilities render him unable to secure or follow substantially gainful employment. Entitlement to a TDIU is therefore warranted from December 22, 2008 to June 29, 2018. Although the effective date of the grant of an increased rating may be up to a year prior to the date of claim, there is no evidence or argument in this case that it was factually ascertainable within a year prior to December 22, 2008 that the Veteran's service-connected disabilities rendered him unemployable. Thus, an effective date prior to December 22, 2008 for the grant of TDIU is not warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.