Citation Nr: 21074591 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-38 689 DATE: December 15, 2021 ORDER Entitlement to an initial disability rating of 70 percent for service-connected posttraumatic stress disorder (PTSD) is granted from November 5, 2013 forward. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD is granted from November 5, 2013 forward. FINDINGS OF FACT 1. The Veteran's PTSD manifested with occupational and social impairment with deficiencies in most areas. 2. The Veteran has been unable to obtain and maintain substantially gainful occupation due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent for service-connected PTSD have been satisfied from November 5, 2013 forward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU due to service-connected PTSD have been met from November 5, 2013 forward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD and assigned an initial 50 percent rating, effective November 5, 2013. The Veteran testified at a hearing with the undersigned in April 2021. A transcript of that hearing has been added to the Veteran's file. Entitlement to an initial disability rating of 70 percent for service-connected PTSD is granted from November 5, 2013 forward. Under the Mental Disorders Formula, 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; 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 rating 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 circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; 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. The Veteran originally underwent a VA examination in July 2016 where the examiner stated he suffered from occupational and social impairment with reduced reliability and productivity. At this examination he reported obtaining mental health treatment related to suicide. The examiner noted that the Veteran suffered from depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, and a persistent danger of hurting self or others. Next the Veteran underwent a VA examination in December 2017. He reported having a relationship with his daughter, and being unemployed due to his inability to deal with stress, get along with others, and having "snapped" at work. He stated he has been suicidal and on the edge of homicide. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, endorsing auditory hallucinations of hearing a voice, and somewhat questionable judgment and insight. The Veteran underwent a VA examination in December 2018 where the examiner noted he suffered from occupational and social impairment in most areas. The Veteran reported sitting on the couch and watching television, living with his daughter who is somewhat distant from him, having few friends, being a recluse, and last working in 2011. Additionally, he had difficulty concentrating and working with others, hopelessness, helplessness, depressed feelings, feels as if there is nothing to look forward to, cautious, on alert, sizes everyone up, keeps back against a wall in public, does not like busy places, has constant thoughts of suicide which he has had since 1990 when he attempted to overdose, terrible sleep, and nightmares. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. Finally, the Veteran underwent a VA examination in July 2021 where he was noted to suffer from occupational and social impairment with deficiencies in most areas. The Veteran presented as initially loud, angry, blustering, and with rapid speech which subsided but he remained somewhat irritable and agitated, anxious, depressed, and tearful. He only speaks to daughter locally, sleeps two to four hours nightly, risk of suicide slightly elevated, and is easily angered and prone to physical altercations. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, near-continuous depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and impaired impulse control. Additionally, the examiner noted that the 2017 VA examination endorsed symptoms that were consistent with a 70 percent impairment. The Board finds that the Veteran's symptoms more closely approximate occupational and social impairment with deficiencies in most areas warranting a 70 percent from November 5, 3013. The Veteran has consistently reported that he suffers from suicidal ideation during the entirety of the appeals period and that these thoughts have been present since his initial suicide attempt in 1990. Additionally, the Veteran suffers from impaired impulse control with periods of violence, the inability to adapt to stressful circumstances, including in a work setting as evidenced by his angry outbursts, physical altercations, and inability to work with others, and he suffers from the inability to establishing and maintain effective relationships as evidenced by the Veteran referring to himself as a recluse. The Veteran's symptoms do not more closely identify a 100 percent disability rating as he does not suffer from total occupational and social impairment. Although he has occasionally reported hearing whispers, they have not manifested as persistent, he does not present with grossly inappropriate behavior, he is able to maintain minimal personal hygiene, maintain some relationships with his daughter and a few friends, and does not suffer from memory loss. The Veteran did endorse suicidal ideation but also reported that he had no intent to act on such thoughts as he could never leave his daughter like that. The criteria for a 100 percent rating are not met, in the absence of total occupational and social impairment. As the Veteran suffers from occupational and social impairment with deficiencies in most areas, entitlement to a 70 percent disability rating, but not higher, from November 5, 3013 forward is granted. TDIU 1. Entitlement to a TDIU due to PTSD from November 5, 2013 forward is granted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran has been in receipt of a 70 percent rating for PTSD for the entire appellate period. Therefore, the schedular criteria for a TDIU have been met based upon his PTSD alone. The Veteran has claimed that he has been unable to work due to his PTSD since approximately 2011. Although the Veteran did not submit a claim for TDIU until July 2021, the TDIU is a component of his claim for an increased rating for PTSD. As discussed above, the Veteran has continuously suffered from occupational and social impairment with deficiencies in most areas. The evidence demonstrates that the Veteran has consistently suffered from difficulty in adapting to stressful circumstances and the inability to establish and maintain effective relationships. The Veteran has consistently reported being unable to undergo stressful situations and the inability to get along with coworkers and supervisors. He has previously been involved with physical altercations in and out of work. In July 2021, a VA examiner stated that the Veteran's PTSD symptoms of hypervigilance, irritability, and reduced frustration tolerance will severely impair his work environment, decrease his productivity especially in jobs requiring teamwork, structure, inflexibility, take place in an office environment, where there is an expectation of delicacy and decorum, or where the Veteran is expected to supervise or manage others. His anger issues may cause physical altercations at work. His depression causes impaired concentration, low energy, impaired motivation, and slowed reactions which will make it difficult for him to function in an environment that requires a lot of mental processing, will cause excessive absenteeism, tardiness, and the need to leave early, and increase the possibility of someone being accidentally injured at work. As the Veteran has consistently suffered from these symptoms that impact his ability to work, the Board finds that he has been unable to obtain and maintain substantially gainful employment due to his PTSD alone. As such, entitlement to TDIU is granted from November 5, 2013 forward. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.