Citation Nr: 21072359 Decision Date: 12/03/21 Archive Date: 12/02/21 DOCKET NO. 13-17 781A DATE: December 3, 2021 ORDER Entitlement to an initial rating greater than 50 percent for post-traumatic stress disorder (PTSD) for accrued benefits purposes, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), for accrued benefits purposes, from April 21, 2010, until July 12, 2013, is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD has been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas. The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. The Veteran's PTSD rendered the Veteran unable to secure or follow a substantially gainful occupation from April 21, 2010, reflecting the date of receipt of the Veteran's initial claim seeking service connection for PTSD, until his death on July 12, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating greater than 50 percent for post-traumatic stress disorder (PTSD) has not) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for Entitlement to a total disability rating based on individual unemployability (TDIU) from April 21, 2010, until July 12, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from February 1967 to October 1968. The Veteran died in 2013 and the Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by a VA Regional Office (RO). By way of background, the Veteran was originally granted service connection for PTSD and assigned a 30 percent disability rating effective April 21, 2010 in the January 2011 rating decision. The Veteran filed a timely Notice of Disagreement (NOD) and subsequent appeal to the Board disagreeing with the assigned rating. In a March 2020 Board decision, the Veteran's claim for an increased rating was granted to 50 percent also effective April 21, 2010, the date of the original claim for service connection. The Veteran's claims seeking service connection for Parkinson's disease, cardiomyopathy, acute renal failure, gout, a hernia disability, a kidney disability, rheumatoid arthritis, and bilateral glaucoma were all remanded for further development, which has not yet been fully completed. Subsequently, the Veteran appealed the Board's March 2020 to the Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court granted a December 2020 Joint Motion for Partial Remand (JMPR) in December 2020 vacating the portion of the Board's prior decision that denied a rating in excess of 50 percent for the Veteran's PTSD indicating the Board's reasons and bases was not sufficient. Additionally, the parties agreed that a claim for TDIU was reasonably raised by the record and not addressed in the Board's March 2020 decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU may either be expressly raised by the Veteran or reasonably raised by the record). This matter has now returned to the Board for readjudication in compliance with the Court's December 2020 decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an initial rating greater than 50 percent for post-traumatic stress disorder (PTSD) for accrued benefits purposes is denied. Disability ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Even if a rating is increased during the pendency of an appeal, a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise. AB v. Brown, 6 Vet. App. 35, 39 (1993). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is rated under the provisions at 38 C.F.R. § 4.130 (Diagnostic Code 9411), which provide for a 30 percent rating where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency 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). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). In other words, VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Here, prior to his death, the Veteran asserted that his PTSD symptoms were worse than rated. The Appellant continues this contention claiming the Veteran's symptoms up until his death warranted at least a 70 percent rating. See June 2021 Informal Hearing Presentation. The Board finds, however, that the preponderance of the evidence is against a finding that an increased rating for the Veteran's PTSD is warranted. Turning to the evidence of record, the Veteran was afforded an October 2010 VA examination. At which time the Veteran reported his ship being struck by mortar rounds which resulted in a hole in the ship. He recalled believing that they were going to sink and that his life was threatened as an example of stressors. On examination, the Veteran exhibited normal orientation; appearance and hygiene were appropriate; mood and affect were abnormal; he was anxious, depressed, and irritable with impaired impulse control and angry outburst. The examiner noted that panic attacks, hallucinations, abstract thinking suicidal and homicidal ideations, and ritualistic obsessions were absent, but thought process and memory were moderately abnormal. The Veteran was noted as having difficulty establishing and maintaining work and social relationships and decrease in work efficiency, especially in periods of significant stress. Other symptoms on examination included social and occupation impairment, having not worked since 2007 due to his flashbacks. As noted in the Board's prior March 2020 decision, the VA examiner's description of symptomatology, both in terms of manifestations and overall severity, most closely resemble the 50 percent diagnostic criteria. The Veteran recalled intrusive memories with manifestations of anxiousness, depression, irritability, impaired impulse control, and angry outbursts, but other manifestations ordinarily associated with the more severe 70 percent or 100 percent disability ratings were absent. In particular, the examiner specifically found panic attacks, hallucinations, abstract thinking, suicidal ideation, homicidal ideation, and ritualistic obsessions absent. Aside from the October 2010 VA examination, however, the Board considered the totality of the relevant evidence. A March 2011 VA treatment note, for example, indicated symptoms such as persistent anger, irritability, anxiousness, nervousness, and depression. Several treatment notes from February 2011, June 2012, and June 2013 include reports that the Veteran felt depressed or hopeless with little interest in or pleasure during things nearly every day. A March 2011 Behavioral Health Intake note records of poor sleep, combat-related nightmares, anhedonia "decreased energy/conc/appetite", intermittent feelings of hopelessness, excessive worry, sweating, and feelings of doom. The Veteran also endorsed visual hallucinations of seeing water rushing out of the TV or from the ceiling and reported flashbacks of his traumatic experiences during the war, hypervigilance, and reported he avoided situations which reminded him of the war. In addition, VA treatment records indicate the Veteran continuously struggled concentrating "nearly every day". See February 2011 VA Treatment Note. In support of his claim, the Veteran submitted several lay statements from friends and family all indicating the effects of the Veteran's PTSD symptoms. His family members repeatedly stated how the Veteran's symptoms changed him and impacted his daily life. For instance, his wife reported that the Veteran frequently was awoken by nightmares, "he would moan and talk in his sleep and would aggressively wake up in a sweat". See June 2010 Buddy Statement. A February 2013 statement from R.S. described how the Veteran would get very emotional and "shut down". His family further testified to the worsening of the Veteran's PTSD symptoms in October 2019. Specifically, the Appellant stated that his PTSD symptoms worsened to the point that towards the end of his life, he "went from a happy-go-lucky, you know, person to just withdrawn". Id at P. 12. The Veteran's daughter further testified generally to how his PTSD led to increasingly poor sleep and fatigue. Id at P. 14. As required by the terms of the December 2020 JMPR, the Board has taken a closer look at all the evidence of record, both medical and lay, describing the Veteran's symptoms during the relevant appellate timeframe. Although there are some statements noting symptoms ordinarily associated with the 70 percent disability rating, such as the visual hallucination of "water rushing out of the television," the vast majority of the manifestations of the Veteran's PTSD during his lifetime largely fell squarely within those ordinarily associated with the 50 percent criteria. That is, the Veteran's PTSD was largely manifested by mood disturbances such as anxiousness and depression, impaired sleep, nightmares, flashbacks, irritability with impaired impulse control and angry outbursts. In contrast, the evidence does not show most of the manifestations ordinarily associated with the 70 percent criteria such as intermittently illogical, obscure, or irrelevant speech; near continuous panic or depression; neglect or personal appearance and hygiene; or suicidal or homicidal ideation. The Board considered the one notation in the records were the Veteran reported a visual hallucination of water rushing from the television, but this appeared to be an isolated event. The vast majority of his manifestations during his lifetime appeared to be largely related to mood disturbances and sleep disturbances interfering with his social and occupational abilities. While the "buddy" statements of record noted daily struggles with depression and social withdrawal, it is clear the Veteran still maintained friendships and family relationships throughout the entirety of his life, albeit with some difficulty. His wife's description of the Veteran's moaning and aggressiveness were in the context of him being asleep and thus the Board finds this to be more indicative of nightmares, intrusive thoughts, and other sleep disturbances consistent with the 50 percent diagnostic criteria. The statements do not suggest illogical or obscure speech outside of a sleep context and, therefore, the Board does not find the Appellant's statements indicative of a more severe disability picture. The Board has no doubt his PTSD interfered with the Veteran's relationships, but the manifestations described in the medical evidence and lay statements as a whole largely fit the manifestations in the 50 percent diagnostic criteria. Based on the foregoing, the Board finds a rating greater than 50 percent not warranted. The Board's determination is not based solely on the listed symptoms in the diagnostic criteria but rather a holistic view of the Veteran's manifestations during the appellate time frame and the severity of the manifestations. As outlined above, while he had demonstrated on occasion some of the manifestations ordinarily associated with the higher diagnostic ratings, such as the visual hallucination, by and large, the medical and lay evidence describes the Veteran's manifestations of PTSD to encompass the symptoms and severity ordinarily associated with the 50 percent criteria, such as mood disturbances, sleep disturbances, hypervigilance, intrusive memories, and some impaired judgment and thinking. The Board, moreover, finds that the Veteran's disability is fully capable of evaluation under the rating schedule. Accordingly, the Board finds that an initial rating greater than 50 percent is not warranted. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), for accrued benefits purposes, is granted from April 21, 2010 until July 12, 2013. The Appellant claims her husband, the Veteran, became too disabled to work due to his PTSD on or around 2007. See June 2021 Informal Hearing Presentation. This appeal stems from the Veteran's PTSD claim filed on April 21, 2010, and, therefore, the Board will consider the TDIU claim from that date. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). During the period on appeal, the Veteran was service connected for PTSD, rated 50 percent disabling and Parkinson's disease, rated 30 percent disabling. The Veteran's total disability rating for this period was 70 percent. Thus, the Veteran meets the schedular criteria for a TDIU. 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. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Turning to the evidence of record, on the June 2021 TDIU VA 21-8940 Form, the Appellant indicated that the Veteran's service-connected PTSD caused him to become too disabled to work in 2007. As indicated above, the Veteran served in U.S. Navy as a Water Transportation Specialist during the Vietnam War. For his honorable service, the Veteran was awarded the Vietnam service medical with two Bronze Stars as well as the Vietnam Campaign Medal with 60 device. After service, from 1990 to 2007 the Veteran worked as a Director of Facilities Plant for Charles Drew University of Medicine and Science. This position involved various building and grounds maintenance as well as supervisory duties. See June 2021 Email Correspondence. The Appellant indicated the Veteran had a high school education with one year of college courses. During the Veteran's October 2010 VA PTSD examination, the Veteran was noted as having difficulty establishing and maintaining work and social relationships with a decrease in work efficiency, especially in periods of significant stress. The Veteran reported that his relationship with supervisors and coworkers prior to 2007 was limited. The Veteran further reported that his flashbacks were affecting his job, "I'm afraid to go to sleep because of the dreams and when I don't have enough sleep the next day, I couldn't do my job, I keep thinking about the Vietnam War". The examiner noted that the Veteran has occasional difficulty performing activities of daily living. It was further noted that the Veteran had no difficulty understanding simple commands but had difficulty with complex "two to three-step" commands. In support of the TDIU claim, the Appellant submitted a May 2021 Vocational Assessment from Vocational Counselor, S.S. Upon an extensive review of the Veteran's medical history, vocational specialist S.S. opined that "it is more likely than not that [the Veteran] was precluded from securing and following substantially gainful employment, to include unskilled sedentary employment, due to his service-connected PTSD since at least April 2010 and continuing until his death in July 2013". In support of her opinion, Counselor S.S. referenced the Dictionary of Occupational Titles (DOT) as developed by the United States Department of Labor, as well as several treatment records describing the Veteran's various symptoms. Specifically, Counselor S.S. referred to the Veteran's history of concentration issues and lack of energy due to his impaired sleep as the result of severe and repeatedly intrusive nightmares. Counselor S.S. frequently cited to the October 2010 VA examination when describing the Veteran's difficulty understanding complex commands and fatigue. Due to his PTSD symptoms, Counselor S.S. opined that the Veteran would have been "precluded from sustaining concentration on work tasks for two consecutive hours". In addition, Counselor S.S. noted the Veteran's PTSD symptoms, to include nightmares, sleep impairment, daytime fatigue, low energy, and depression "would more likely than not have contributed to [the Veteran's] inability to focus and concentrate on all work, including unskilled, routine, repetitive tasks". Lastly, the Veteran's irritability, anger outbursts, and a tendency to self-isolate "would more likely than not preclude him from meeting employers' expectations of appropriate and effective workplace interaction". Ultimately, it was opined that "due to the limitations from his service-connected PTSD, [the Veteran] would have more likely than not had difficulty meeting the basic non-exertional requirements of all substantially gainful employment between April 2010 and his death in July 2013". The Board finds the May 2021 vocational opinion of Counselor S.S. to be highly probative for it was based on a complete review of the claims file and was supported by a thorough rationale that is consistent with and informed by the particular facts of this case and the medical history of the Veteran. See Nieves Rodriguez v. Peake, 22 Vet. App. 2 95, 302 (2008). In addition, Counselor S.S.'s opinion is made all the more probative by her extensive 25 years of experience as a vocational counselor. As such, the Board finds the preponderance of the evidence supports TDIU from April 21, 2010, the date on which VA received the Veteran's initial PTSD claim and thereafter assigned a 70 percent disability rating. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. From an economic perspective, the Board finds the Veteran was unemployed during the entire period on appeal beginning April 21, 2010 until his death in 2013. He had a high school education with extensive experience in facilities management and maintenance. From a non-economic perspective, it is clear from the evidence of record, that the Veteran's service-connected PTSD precluded substantial gainful employment. In particular, the evidence overwhelming indicates that the Veteran, prior to his death, struggled with nightmares and flashbacks, leading to frequently impaired sleep and fatigue which negatively impacted his reliability and productivity. His ability to interact with coworkers was limited by his isolation tendencies as well as his irritability and angry outbursts. Specifically, the Veteran reported during the October 2010 VA examination that his flashbacks and recurrent nightmares were increasing affecting his job performance. Ultimately, a worsening of his PTSD symptoms and resulting impaired sleep seem to have caused the Veteran to retire from his job in 2007 from which time he remained unemployed until his death in 2013. This finding is further supported by the thorough May 2021 vocational opinion of Counselor S.S. which indicated that his PTSD symptoms would have caused the Veteran great "difficulty meeting the basic non-exertional requirements of all substantially gainful employment between April 2010 and his death in July 2013". In light of the Veteran's past work history, training, and skills and in light of the medical evidence in this case, and resolving all reasonable doubt in the Veteran's favor, the Board finds that his service-connected PTSD prevented him from securing or following a substantially gainful occupation from April 21, 2010, the date of the initial claim of service connection for PTSD, until his death on July 12, 2013. Accordingly, entitlement to a TDIU is warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.