Citation Nr: 21072173 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-43 699 DATE: December 2, 2021 ORDER Entitlement to a disability rating of 70 percent, but no more, for posttraumatic stress disorder (PTSD) is granted on and after April 4, 2017, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted on and after April 4, 2017. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and total social impairment. 2. The Veteran's service-connected disability has met the percentage requirements for the award of a schedular TDIU, and the evidence indicates that the nature and severity of this disability has prevented him from performing gainful employment for which his education and occupational experience would otherwise qualify him since April 4, 2017. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, on and after April 4, 2017, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9421 (2021). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for the award of a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1967 to August 1969, including service in the Vietnam War. The Veteran testified before the undersigned Veterans Law Judge during a July 2021 hearing and a transcript is of record. These matters are on appeal from a June 2017 rating decision. In her June 2018 Notice of Disagreement (NOD), the Veteran's attorney sought to preserve for appeal any "failure to discharge the duty to assist." However, neither the Veteran nor his attorney have raised any specific issue with the duty to notify or duty to assist with regard to the claims being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. PTSD The Veteran contends that his PTSD warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD, with a 30 percent rating from March 23, 2011 to October 8, 2015 and a 50 percent rating on and after October 9, 2015. VA received the Veteran's claim for an increased rating on April 4, 2017. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2021). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal 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. Hart, at 509; see also 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2019). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that a 50 percent rating is warranted for 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order 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; 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, occupation, or own name. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. See VazquezClaudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). During a May 2017 VA treatment appointment, the Veteran reported frequent nightmares related to combat. He reported that he was not suicidal or homicidal. There were no symptoms of mania, hypomania, or psychosis. The Veteran was afforded a VA examination by a psychologist in May 2017. The psychologist diagnosed PTSD. The Veteran reported that he continued to live with his spouse of 50 years and that they got along well but his spouse had expressed concern that he was too much of a loner and did not want to socialize. The Veteran also reported that his granddaughter and her children had recently moved in for five weeks and that this had increased his stress level until he lost his temper and told them to leave. The Veteran expressed guilt over this but noted that his granddaughter had expressed understanding. He also reported visiting regularly with his children and grandchildren. He reported that others sometimes described him as "grumpy" but that he visited with people at least for limited amounts of time. He added that he was especially close to his brother and one of his children because they had also been through traumatic experiences. He also reported that he did not like crowds and so did not attend religious services often and stayed in another room with his brother during large family gatherings. He reported that he had been retired since 2010 and that he did most of the household chores because of his spouse's long-term illness. He also reported spending time working on projects such as rebuilding tractors and lawn mowers at a rate of roughly one a year. The psychologist listed the Veteran's symptoms for rating purposes as depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran's affect was restricted, his mood appeared depressed, he was fully oriented, and he showed no signs of disordered thinking. The Veteran reported increased irritability, increased hypervigilance, exaggerated startle response, and chronic sleep disturbance. He reported mild to moderate difficulty interacting with others, increased difficulty interacting with larger groups or crowds, mildly to moderately increased irritability with limited verbal altercations but usually being able to walk away from confrontations, and mild to moderate symptoms of depression which could result in a mild decrease in motivation. The psychologist noted that chronic sleep impairment could cause mild to moderate fatigue and lowered energy. The psychologist found that the Veteran did not appear to pose any threat of danger or injury to himself or others. The psychologist characterized the Veteran's overall 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, which is consistent with a 30 percent rating. During VA treatment appointments in late 2017 and early 2018, the Veteran consistently reported his relationship with his spouse as good. In the June 2018 NOD, the Veteran's attorney reported the Veteran's symptoms as "persistent nightmares, flashbacks, self-isolation (even from family members), and inability to control anger." The attorney also reported that the Veteran "retired early from his job because of these symptoms." The August 2018 substantive appeal (VA Form 9) contained the same contentions. The Veteran has submitted a December 2019 report of a July 2018 examination by a private psychologist, who noted the Veteran's belief that VA assessors minimized his symptoms and that his symptoms were more severe than the May 2017 VA examination report reflects. The Veteran reported nightmares, waking cold sweats, a history of frequent unemployment, anger outburst, recall of combat experiences, depression, anxiety, and a history of suicidal ideation during a period of marital distress. (Other records clarify that this period was prior to the period on appeal.) The Veteran reported that his early retirement was due to increased conflict with supervisors. The psychologist characterized the Veteran's overall level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating. The psychologist based this assessment on the Veteran's "current active symptoms of nightmares, waking cold sweats, flashbacks, anger outbursts, recall of combat experiences, depression, and anxiety." The psychologist opined that the Veteran's PTSD symptoms "would inhibit him from sustained employment" because he "would be expected to be off-task 20% or more of the time for any time of occupational work; even simple, repetitive tasks and requiring only minimal contact with others." The psychologist also noted that the Veteran "will experience conflict with his supervisors if he perceives criticism" and that he "realized he had lost his patience and ability to maintain his composure when feeling distressed by demands at work." The psychologist added that the Veteran had retired due to recognition of his mental decompensation in 2010 and that, given that his condition had progressed he would now be more susceptible to psychological decompensation. During a June 2019 VA treatment appointment, the Veteran reported suicidal ideation in the past month, expressing a wish to die but with no method, plan, or intent. During a September 2019 VA treatment appointment, the Veteran characterized his family as very supportive. During VA treatment appointments in 2018 and 2019, the Veteran reported repeated visits to his mother prior to her death. During a November 2019 VA treatment appointment, the Veteran characterized his relationship with his mother as a close one. The Veteran has submitted a July 2021 examination report by a private vocational consultant, who also opined that the Veteran's service-connected PTSD had rendered him unable to secure and follow substantially gainful employment since at least March 2017. Specifically, the vocational consultant noted the impact of impaired concentration, fatigue, and difficulty with interpersonal functioning. During the July 2021 hearing, the Veteran testified that he had nightmares three to four times a week and that he avoided going out because crowds made him nervous. He also provided further details about workplace interpersonal conflict, including that he had benefited from a supervisor sympathetic to his situation and that problems had worsened after that supervisor retired. He also reported that, two to three times a week, he had gotten overwhelmed and had to leave work to collect himself. He also reported that he sometimes has to stay away from everyone, including family. He described a past violent altercation, but it was not clear whether this was during the period on appeal. He added that he had difficulty opening up to the May 2017 VA examiner due to a lack of trust. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, her psychiatric symptoms and overall disability picture warrant an evaluation of 70 percent for PTSD throughout the period on appeal. During that period, the record contains evidence of suicidal ideation, impaired impulse control, and difficulty in adapting to stressful circumstances. For these reasons, the Board finds that Veteran's symptoms most nearly approximate those that warrant a 70 percent rating throughout the period on appeal. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. This is also the rating requested by the Veteran's attorney during the July 2021 hearing. The Board does not, however, find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran's symptoms at any point during the period on appeal. The record does not contain evidence of any of the symptoms listed in the criteria for a 100 percent rating or symptoms similar to those listed in the 100 percent rating criteria, with the possible exception of persistent danger of harm to himself or others. Self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, the record does not show that the Veteran's suicidal ideation is of the severity needed to accurately describe a "persistent" danger to himself or others. The record only shows one report of suicidal ideation in the period on appeal and, at that time, he did not report a plan to act on his ideation. However, even the constant presence of some symptoms listed in the criteria for a 100 percent rating would be insufficient because the overall guiding criterion for a 100 percent rating is that both total occupational and total social impairment be present. 38 C.F.R. § 4.130; see, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Veteran's symptoms have not been shown to be so severe that she has both total occupational and total social impairment. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). Although the Board has found total occupational impairment for the period on appeal by granting a TDIU below, total social impairment is not shown. The Veteran has been able to maintain some personal relationships, specifically with his brother, spouse, children, grandchildren and, prior to her death, his mother. The Board acknowledges that these relationships are or were sometimes strained or distant, but that is reflected in the current 70 percent rating for "deficiencies in most areas," the criteria for which include inability to establish and maintain effective relationships and difficulty in adapting to stressful circumstances including work or a worklike setting. Because the Veteran is not totally socially impaired, a 100 percent rating is not warranted. The Board also notes that many of the Veteran's reported symptoms throughout the period on appeal are included among those specifically contemplated in the General Rating Formula for Mental Disorders, pursuant to which a 70 percent disability rating has been assigned. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran's extent of occupational and social impairment. Accordingly, the existence and severity of the Veteran's psychiatric symptoms are adequately contemplated by the 70 percent rating criteria. As noted above, many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board has also considered the Veteran's assertions, which he is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The lay evidence is also credible. The symptoms described in those lay statements comport with the 70 percent rating that has now been assigned. However, these lay statements do not provide any basis upon which to assign a higher rating because they do not reflect total social impairment. In sum, the Board finds that, resolving reasonable doubt in the Veteran's favor, his impairment due to PTSD has been most consistent with a 70 percent disability rating throughout the period on appeal. 2. TDIU The Veteran contends that his service-connected PTSD renders him unemployable and that he last worked full-time on December 31, 2009. He reports that he worked for his last 18 years of employment as a die setter. VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran's only service-connected disability is his PTSD. After the increased rating granted above, his PTSD is rated 70 percent disabling on and after April 4, 2017. The criteria for consideration of a schedular TDIU are therefore met on and after April 4, 2017. The Board has described the symptoms of the Veteran's service-connected PTSD and their occupational impact in detail above. The private vocational consultant has opined that the Veteran's PTSD renders him unable to secure and follow substantially gainful employment and has provided a thorough and compelling rationale for this opinion. The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected disability has rendered him unemployable under the applicable regulations since April 4, 2017. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU is warranted on and after April 4, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.