Citation Nr: 21076396 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-14 240 DATE: December 23, 2021 ORDER An initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's PTSD symptoms and overall impairment more nearly approximated occupational and social impairment with deficiencies in most areas, but they have not more nearly approximated total social and occupational impairment. 2. The Veteran's service-connected PTSD precludes him from securing and following substantially gainful employment consistent with his education and occupational and educational experience. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Criteria (DC) 9411. 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 4.1-4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, the Veteran and his wife presented testimony before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the file; however, one is not necessary for a decision on the appeal. The Veteran has raised the issue of a TDIU as part and parcel of the initial rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Higher Initial Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). An initial rating higher than 50 percent for PTSD. The Veteran submitted a claim of service connection for PTSD in May 2016. The Veteran's PTSD is currently rated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under this criteria, a 50 percent rating is assigned 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; difficulty establishing effective work and social relationships. 38 C.F.R. § § 4.130, DC 9411. A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating 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 also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). 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 list of 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); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). For the following reasons, an initial rating of 70 percent rating for PTSD is warranted. The evidence shows that the Veteran's PTSD symptoms and overall impairment more nearly approximated occupational and social impairment with deficiencies in most areas. For instance, during the September 2016 VA examination, a June 2017 private psychological examination, and December 2021 Board hearing, the Veteran reported irritability, anger, chronic sleep impairment, outbursts of anger, impaired impulse control, anxiety, depressed mood, panic attacks, impaired judgement, disturbances of motivation and mood, difficulty getting along with others in the workplace, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). With respect to occupational impairment, the evidence supports that the Veteran's PTSD caused total occupational impairment. For instance, the Veteran has been unemployed throughout the appeal period due to his PTSD symptoms. See, e.g., VA examination report (September 2016); Board hearing notes (December 2021). The Veteran reported that when he was employed, his irritability and his anger (along with other PTSD symptoms) caused problems with his peers, subordinates and superiors. See Board hearing notes (December 2021). He indicated that when he was employed, he did not get along with others and that he was involved in several physical altercations, which led to his retirement. During the December 2021 Board hearing, the Veteran's spouses testified that the Veteran had difficulty working with others due to his anger issues. Additionally, in a June 2017 private psychological report, the psychologist indicated that the Veteran had difficulty effectively communicating and that his poor impulse control and poor censoring ability with his peers and supervisors led to his retirement. In light of the Veteran's reports that he has been unemployed throughout the appeal period due to his PTSD symptoms, the impact his PTSD symptoms had on him in an occupational environment, and the June 2017 private psychological report, the Board finds that the Veteran's PTSD symptoms more nearly approximated total occupational impairment. As to social impairment, the Board finds that the Veteran's social impairment resulted in social impairment with deficiencies in most areas. As indicated above, during the December 2021 Board hearing, the Veteran testified that his irritability, anger, and control issues caused problems with his peers and others. He reported that his behavior caused relationship problems; he explained that others have indicated that he was "hard to get along with." See VA examination report (September 2016). He stated that he avoided crowds. Id. He stated that his poor communication and anxiety negatively impacted his relationships with others. See private psychological examination report (June 2017). During the December 2021 Board hearing, the Veteran and his representative testified that a 70 percent rating for PTSD and award of a TDIU would satisfy his appeal in full. Notably, although the Veteran's PTSD caused total occupational impairment, under DC 9411 a 100 percent rating requires both total occupational and social impairment. The Board finds that the Veteran's PTSD did not result in total social impairment. To this end, the evidence shows that although the Veteran was once previously divorced many years prior to the appeal period, he has been married to his current wife since 2007. See VA examination report (September 2016). Additionally, he reported that he saw his children often (from his first marriage), and that he socialized with some close friends. See VA examination report (September 2016); Board hearing notes (December 2021). Given the Veteran's relationship with his wife, children, and that he maintained a relationship with several of his friends, the Veteran's PTSD symptoms do not more nearly approximate total social impairment. In addition, the above evidence reflects that there was no gross impairment in thought processes, grossly inappropriate behavior, and that the Veteran was not in a persistent danger to hurt himself. He did not have memory loss for names of close relatives, own occupation or name. He was not found to be a persistent danger to hurt others. The Board notes that in the June 2017 private psychological report, the private psychiatric indicated that the Veteran had "visual and other sensory hallucinations due to his hyper vigilance." The Board finds that the portion of the June 2017 private psychological report is afforded no probative value, as the private psychiatric provided no explanation or details regarding the Veteran's visual and other sensory hallucinations due to his hypervigilance. In fact, throughout the appeal period, the Veteran denied delusions and hallucinations. See, e.g., VA examination report (September 2016). During the December 2021 hearing, the Veteran testified that certain smells trigger memories from service but he does not hear voices or hallucinate. As such, the severity, duration, and frequency of the Veteran's PTSD symptoms did not result in total occupational and total social impairment. Therefore, a 100 percent rating for PTSD is not warranted. In sum, the Veteran's PTSD symptoms more nearly approximate occupational and social impairment with deficiencies in most areas. Resolving any reasonable doubt in the Veteran's favor an initial 70 percent rating, but no higher, for PTSD is warranted for the entire claim period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3 TDIU 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; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more 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). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) held that substantially gainful employment, in the TDIU context, contains economic and noneconomic components; 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, while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The CAVC also provided guidance as to the meaning of a veteran's ability to secure and follow such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Here, the Veteran asserts that he is unable to secure and obtain substantially gainful occupation due to his service-connected PTSD. See Veteran's Application for Increased Compensation Based on Unemployability (January 2017). As indicated above, the Board, herein, awarded a 70 percent rating for PTSD; he is also service connected for tinnitus (10 percent rating) and noncompensable right ear hearing loss. Therefore, the threshold criteria for consideration of a TDIU are met. 38 C.F.R. § 4.16 (a). For the following reasons, a TDIU is warranted. 38 C.F.R. §§ 4.16 (a), 4.25. The Veteran has been unemployed throughout the appeal period, as he retired as a fireman in August 2012. See Veteran's Application for Increased Compensation Based on Unemployability (January 2017). The evidence reflects that the Veteran has a high school degree and two years of college education. Id. The Veteran has a limited occupational history, as a few years following his separation from service, he was employed as a fireman until he retired in 2012. As detailed in the preceding section, the Board, herein, found that the Veteran's PTSD symptoms resulted in total occupational impairment. While the September 2016 VA examiner determined the Veteran never had problems getting along with the people he worked with and was never fired or reprimanded, the Veteran and his wife testified that his irritability and anger made it difficult for him to work as a firefighter and directly contributed to his decision to retire. Moreover, the June 2017 private psychological indicated that the Veteran had difficulty effectively communicating and that his poor impulse control and poor censoring ability with his peers and supervisors led to his retirement. The Veteran has limited educational and occupational history, as his employment history included a profession as a fireman. The Veteran has no other training or skill set. As explained above, the Veteran reported that he was unable to continue his employment as fireman, as he had difficulty working with others, due to his PTSD symptoms, such as his irritability and anger outbursts. As the Veteran's PTSD resulted in the above symptoms detailed in the preceding section, such symptoms would likely preclude him from securing or maintaining employment consistent with his educational and occupational experience. Resolving reasonable doubt in the Veteran's favor, a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.