Citation Nr: 21005844 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-31 177 DATE: February 2, 2021 ORDER An initial disability rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. An individual rating based upon unemployability (TDIU) is granted. FINDINGS OF FACT 1. The more probative and persuasive evidence reveals that the Veteran’s PTSD symptoms are of the same type, duration, severity, and frequency indicative of occupational and social impairment in most areas of life, including work, social relations, judgment, thinking, and mood; but not total occupational and social impairment. 2. The more probative and persuasive evidence reveals that the Veteran’s service-connected PTSD precludes him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for service-connected PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38C.F.R. §§3.102, 3.159, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have been met. 38 U.S.C. §§1155, 5107; 38C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 1968 to November 1972. Historically, this matter came before the Board of Veterans’ Appeals (Board) on appeal from four ratings decisions dated in December 2012, August 2014, April 2016, and June 2016 of the Department of Veterans Affairs (VA) Regional Office (RO). In the December 2012 decision, the Veteran was granted service connection for PTSD at 30 percent disabling. In the August 2014 decision, the Veteran’s 30 percent evaluation for PTSD was continued. In the April 2016 decision, the Veteran was awarded a 50 percent rating for PTSD. In the June 2016 rating decision, the Veteran’s 50 percent disability rating was continued. The Veteran continuously pursued his PTSD claim by appealing the above-referenced rating decisions. After to RO issued an October 2018 statement of the case (SOC) and the Veteran responded by submitting a VA Form-9, the Veteran’s appeal was forwarded to the Board for further review. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2019. The Board issued a decision in November 2019 in which it increased the Veteran’s PTSD disability rating from 50 percent to 70 percent but denied a 100 percent rating. The Board also denied the Veteran’s TDIU claim. Thereafter, in pertinent part, the RO implemented the Board’s decision in December 2019 by granting service connection for PTSD at a 70 percent disability rating effective December 18, 2012. The Veteran appealed his 70 percent PTSD rating and TDIU claims, among other issues, to the United States Court of Appeals for Veteran’s Claims (Court). In an August 2020 Joint Motion for Partial Remand (JMR), VA’s General Counsel and the Veteran’s attorney agreed that the Veteran’s 70 percent disability rating granted by the Board was to remain undisturbed. The question to be addressed was whether the Veteran was entitled to the next higher disability rating for PTSD, which is a 100 percent evaluation. In the JMR, the parties asserted that the Board erred when it failed to discuss relevant evidence of record and did not adequately address the severity, frequency, and duration of Veteran’s PTSD symptoms, to include his documented difficulty maintaining his personal hygiene, experiencing hallucinations, and evidence suggesting the Veteran may be a persistent danger to himself and others. See, e.g., July 2019 private psychological evaluation. In addition, error was asserted that in denying a 100 percent disability rating, the Board “simply listed the symptoms from the rating criteria that were not shown to be present” rather than discussing whether the severity and frequency of the Veteran’s documented symptoms were of similar gravity to those for the assignment of a 100 percent disability rating (i.e., “the higher rating criteria.”) In terms of the Veteran’s TDIU claim, the parties argued that error occurred when the Board found that the Veteran’s PTSD did not render him unable to obtain and maintain substantially gainful employment, citing to his education history and his participation in “community projects” to support this finding. In relying on Veteran’s participation in “community projects” as a basis for its finding that he was capable of obtaining and maintaining employment, the Board failed to address whether this “participation” was actually demonstrative of an ability to obtain and maintain substantially gainful employment, or whether it could be considered marginal employment. As noted by the Board, the Veteran volunteered at an ambulance service, but the Board failed to note that the volunteer work was only twice per week. See January 2018 report from Dr. C.N. Given the nature of this work, the parties agreed that the Board provided an inadequate statement of reasons or bases as to whether the Veteran was capable of substantially gainful employment. In a September 2020 decision, the Court granted the parties JMR, vacated the portions argued to be in error, and remanded the appeal to the Board for further adjudication. Having carefully considered the JMR and the complete evidence of record, the Board issues the following decision. 3. PTSD The Veteran was assigned a disability rating of 70 percent for PTSD symptomatology that included: irritability; difficulty controlling his anger; memory loss; stereotypical speech; panic attacks more than once a week; forgetfulness; intermittent suicidal ideation; insomnia; nightmares; unnecessary risks of danger; and avoidance behaviors. The Veteran’s depressed mood, intrusive memories related to his military service, flashbacks, hypervigilance, and an exaggerated startle response were also considered, as were the Veteran’s statements that he had only a few friends and acquaintances. Consideration was also given to the Veteran’s endorsement of impulsive anger, problems with road rage, and abrasive social interactions. See November 2019 BVA decision. As mentioned above, in its November 2019 BVA decision, the Board found that the Veteran’s PTSD symptomatology did not warrant the assignment of a 100 percent disability rating. In doing so, the Board concluded that the more probative and persuasive evidence did not support the conclusion that the Veteran suffered from total occupational and social impairment as a result of his service-connected PTSD. Based upon the instructions of the JMR, the question of whether the Veteran is entitled to a 100 percent disability rating for PTSD has been returned to the Board. After reviewing the entirety of the record in conjunction with the JMR, the Board finds that he is not. Although the Veteran’s 70 percent disability rating from December 18, 2012 for his PTSD will remain undisturbed per the JMR, the Board sets forth the pertinent rating criteria for the assignment of a 70 percent and a 100 percent disability rating given the length of the time on appeal. Under Diagnostic Code 9411, a 70 percent 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. Symptoms considered in the assignment of a 70 percent evaluation include: 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 an inability to establish and maintain effective relationships. A 100 percent 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. In order to be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. Further, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a Veteran may only qualify for a given disability rating under 38 U.S.C. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. In support of his claim, the Veteran submitted his own statements, testimony, and lay statements from others attesting to symptomatology he associates as being a part of his PTSD. In March 2012, the Veteran submitted correspondence endorsing symptoms of flattened affect; difficulty with complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances in mood and motivation; and difficulty establishing and maintaining effective relationships. At the June 2019 Board hearing, he also endorsed suicidal thoughts and plans a couple times a week. He also relayed a problem with road rage, which caused him to be physically aggressive. In lay statements, the Veteran’s wife, brother, sister, pastor, and co-workers attested to the Veteran being abrasive, reckless, moody, irritable, easily frustrated, short-tempered, restless, exhibiting poor judgment (in the hazardous manner he completed tasks), had memory difficulties, and experienced difficulties with employment. Turning to the medical evidence, an August 2012 VA examination report contains a medical opinion that the Veteran was suffering from occupational and social impairment due to mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; the veteran had symptoms controlled by medicine (the criteria associated with the assignment of a 10 percent disability rating). Specifically, the report reflects the Veteran’s statements of his being married for 43 years; that his marriage was “terrific other than him being irritable;” and that his wife was his only “real friend.” The Veteran reported that he got along very well with his 6 children and 13 grandchildren; and that he participated in activities with his grandchildren, such as riding go carts and going to the park. He stated that he liked to have his grandchildren near. The Veteran described being active in church and stated that he associated with church members, but essentially no one else despite having other acquaintances. He denied suicide attempts and reported only a remote history of one physical altercation twenty years prior. Regarding employment, he reported that he currently ran the boiler room at a hospital, stating that he a good relationship with his supervisor without any problems at work. He reported once being fired in 2007, as his supervisor was a micromanager and he liked working independently and alone. Notable PTSD symptoms included: depressed mood; chronic sleep impairment; mild memory loss; and sullen mood about work. Objectively, the Veteran’s mood was noted as being dysthymic with an affect that was mildly constricted. An April 2013 letter from G.A., M.D. reflects the Veteran having had symptoms of stereotypic speech, panic attacks over once a week, forgetting to complete tasks, disturbances of mood, and difficulty understanding and completing complex commands. In June 2014, the Veteran was found to suffer from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily (the criteria associated with the assignment of a 30 percent disability rating). During a VA examination that month, the Veteran reported that he continued to have a very good relationship with his children and wife. He also had maintained contact with family members. He noted a childhood friend with whom he talked to occasionally but denied any other significant social relationships. He endorsed hobbies, such as working in his workshop, going to the gym, and traveling with his family. He reported that he did not take psychiatric medication but did attend therapy. On examination, he was noted as being casually dressed; having fair grooming and hygiene; being mildly dysphoric affect; having logical thought process; and having a normal speech pattern. During the examination, he reported no suicidal ideation, intent or plan. However, he reported one brief incident of suicidal ideation in the recent past. The Veteran endorsed chronic irritability and engaging in verbal, angry outbursts. He also reported becoming overly frustrated and anxious in traffic. No homicidal ideation was reported. No audio or visual hallucinations were indicated. Notable PTSD symptoms remained the same as the August 2012 exam, with the addition of a newly reported symptom of anxiety. In November 2014, the Veteran’s VA medical psychologist P.D., Ph.D. submitted correspondence supporting that the Veteran’s PTSD symptoms inhibited his functioning level personally, socially, and professionally. The provider recorded symptoms of nightmares, intrusive thoughts, efforts to avoid reminders of the stressor, irritability, sleep disturbance, easily startled response, detachment from others, and hypervigilance. A pattern of risk-taking with work-related tasks was also reported. In May 2016, the Veteran was afforded a third VA examination for PTSD after which he was found to have occupational and social impairment with reduced reliability and productivity (the criteria associated with a 50 percent disability rating). The Veteran reported during his examination that he had retired from work in the boiler room in January 2015. He explained that he was having problems tolerating the drive to work and explained that he had irritability and anger when driving. He endorsed impaired judgment at work and noted problems with his memory. He reported that since retirement, he had completed EMT training, and was volunteering at an ambulance service. Despite the change in his occupational status, the Veteran continued to suffer from symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He reported that even though he had been married for 47 years, and that his wife was the only person he was close to, he was “hard to live with” and that he could become irritable with her. He maintained contact with his children, siblings, and mother. A mental status examination revealed the Veteran to be casually dressed, with adequate grooming and hygiene, with unremarkable psychomotor activity. His mood was noted as being tired and melancholy, with an affect congruent with reported mood. Speech was coherent; and cognitively the Veteran was alert and oriented. The Veteran’s thought process was noted as being logical and organized, with relevant thought content. His judgment and insight were noted to be average. The Veteran essentially reported experiencing passive suicidal ideation with no current plan or attempt. There was no evidence of hallucinations. The examiner noted that the exact severity of the Veteran’s PTSD symptoms was difficult to determine due to the Veteran’s presentation style. Thereafter, in January 2018, the Veteran underwent a psychological evaluation by a private medical provider, C.N., Ph.D. On a Depression Self-Rating Test, the Veteran reported (among other things) that he had concentration issues, thoughts of suicide, loss of interest in formerly pursued activities, and low energy. Dr. C.N. stated that the Veteran’s test results scale indicated that he was in the severe range of depression. In terms of activities, C.N. reported that the Veteran was able to perform activities of daily living. In terms of employment, he stated that Vocational Rehabilitation could be of assistance if the Veteran should desire to get a part-time job. In March 2019, the Veteran submitted an impairment questionnaire prepared by his other VA medical provider, M.S., L.C.S.W. M.S. noted the Veteran’s previously documented PTSD symptoms, with the addition of new symptoms of obsessional rituals that interfered with routine activities and neglect of personal appearance. M.S. also submitted a report in October 2020. At that time, she noted that the Veteran had been in treatment for PTSD from August 2013 to September 2020. Her clinical findings were that the Veteran experienced deficiencies in family relations; was a persistent danger of hurting self and others; experienced panic or depression affecting the ability to function independently, appropriately and effectively; he neglected his personal appearance and hygiene; suffered from chronic sleep impairment; had deficiencies in mood and difficulty adapting to stressful circumstances; exhibited grossly inappropriate behavior; experienced unprovoked hostility and irritability; and had an inability to establish and maintain effective relationships. Of note, M.S. did not indicate that the Veteran suffered from memory loss for names of close relatives, own occupation, or own name; exhibit speech that was intermittently illogical, obscure, or irrelevant; had spatial disorientation (getting lost or disoriented); had obsessional rituals that interfered with routine activities; suffered from gross impairment in thought processes; suffered from disorientation to time or place (being unsure as to the time of day, date, year or place); had persistent irrational fears; suffered an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); had deficiencies in judgment; experienced persistent delusions or hallucinations; or had suicidal ideations. Lastly, the Board observes that a July 2019 one-time private independent medical evaluation in the claims file is the only record the Board found in which the Veteran attested to hallucinations and homicidal ideation. Other symptoms included, but were not limited to, neglect of personal appearance and hygiene; feelings of guilt/worthlessness with poor self-esteem; psychomotor agitation; and poor impulse control. Additionally, the Veteran was noted to have diminished frustration tolerance, anhedonia, and isolation. The examining psychologist R.S. reported that the Veteran’s present degree of his mental illness had existed since April 4, 2015. After reviewing all of the above-referenced evidence, in the context of the entire record, the Board finds the medical evidence over time reflects increasing symptomatology that ultimately was found to be closer in type, extent, severity, and frequency indicative of occupational and social impairment in most areas of the Veteran’s life, including work, social relations, judgment, thinking, and mood as contemplated by a 70 percent disability rating. Although he had some symptoms at various times that could be a basis for the assignment of a 100 percent disability rating (i.e., maintenance of personal hygiene, a report of hallucinations, persistent danger to self and others via careless/reckless actions in an occupational setting, some memory loss, etc.), a review of this symptomatology reveals it to be sporadic in nature and are not of similar gravity to the type of criteria contemplated for one suffering from total occupation and social impairment at any time during the appeal. Regarding occupational impairment, although the Veteran had PTSD symptoms that affected his social interactions with coworkers prior to retirement, he was never fired for these symptoms, nor was there evidence of an inability to perform occupational tasks. Though he submitted some evidence of total occupational impairment, this evidence is inconsistent with his volunteer work in the community, and his own reporting that he had no problems performing occupational tasks in the past. Regarding social impairment, the Veteran has endorsed an ability to maintain relationships with his wife, family, and church members. Further, he has not been shown to have gross impairment in thought processes, nor has he ever demonstrated the type of severe memory loss associated with forgetting names of close relatives or his own name. The Board does not intend to minimize the Veteran’s danger to himself and others in the context of his prior work experiences, when he was reported as being careless and reckless during certain work assignment, but the evidence fails to show that the Veteran has ever intentionally posed a danger to himself or others, nor has he shown the type of careless or reckless dangerousness since his retirement. The Board acknowledges the Veteran’s reports of having difficulty controlling his anger; however, the evidence indicates that he vocally expresses his anger rather than becoming involved in physical alterations. Furthermore, although the Veteran has reported suicidal ideation, he has never endorsed past attempts or intent that would rise to a level of causing total occupational and total social impairment. A review of the Veteran’s post-service medical records supports the Board’s finding that the Veteran’s symptoms are not of such duration or severity to warrant the assignment of a 100 percent disability rating. For instance, medical records dated in January 2018 reflect that the Veteran reported volunteering for community projects, such as being a fire fighter. In June 2018, he noted projects of adding to his house, assisting with construction in the park, and digitalizing records at the courthouse. In August 2018, he reported volunteer work at the senior center and local park and building his own utility building. A November 2020 mental health progress note documents the Veteran’s conversation with a health care provider about how he and his family have been managing their lives and church services due to COVID-19, stating that church services are now only held twice a month, and that his family have church meetings at their home on the other days . The Veteran rated his symptom level of PTSD at 55% over the previous 2 weeks. He stated that he managed stress and PTSD by staying busy, helping people in the community and neighborhood, and going to the gym 3 - 5 days per week. The Veteran shared that his main accomplishment so far, this past year, has been reading about 90% of the book of Mormon. He also reported helping his family and friends clearing their property from the effects of the recent storm. A mental status examination revealed the Veteran as denying suicidal and homicidal ideation. He was cooperative, casually dressed, and made good eye contact. The Veteran’s speech was noted as being normal; his affect was noted to be congruent with mood and full range. He was also noted as having appropriate thought processes; and organized, goal directed thought content. The Veteran denied audio-visual hallucinations, paranoia, and delusions. Numerous other mental status examinations in the Veteran’s post-service medical records dated from 2013 to 2020 reflect similar findings. In sum, the more pertinent and persuasive evidence of record reveals that the Veteran’s symptoms are not of such frequency, duration or severity to more nearly approximate the criteria for a rating higher than 70 percent. As such, a 100 percent disability rating is not warranted for the time period on appeal. See 38U.S.C. §5107(b); 38C.F.R. §3.102. 4. TDIU The Veteran contends that his service-connected PTSD renders him unemployable. Per the JMR, the parties agreed that error occurred when the Board found that the Veteran’s PTSD did not render him unable to obtain and maintain substantially gainful employment, citing to his education history and his participation in “community projects” to support this finding. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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 at 60 percent or more, and that, 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. 38C.F.R. §4.16(a). The Veteran is currently assigned a 70 percent rating for PTSD. As such, he satisfies the criteria for consideration of TDIU on a schedular basis. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38C.F.R. §§3.340, 3.341, 4.16. Unlike the analysis for increased rating claims, which are based on average levels of impairment, the analysis for a TDIU claim is based upon the individual. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38C.F.R. §§3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). After careful reconsideration, the Board finds that if the Veteran had attempted to secure or follow any substantial gainful occupation after his retirement as a boiler room maintenance worker, he would have been unable to do so because of his PTSD. In this regard, the Board finds statements from the Veteran and his brother to be probative. Specifically, in a June 2014 statement from the Veteran’s brother, he noted that the Veteran had a college degree and teaching certificates. Despite his education, the Veteran most consistent job consisted of being a hospital maintenance worker maintaining the heating and cooling units of the facility. In an October 2014 statement, the Veteran pointed out that prior to retirement, he was under-employed in that he worked in maintenance despite his college degree (graduating withing the top 10 percent of his class), being a very elite Designated Naval Aviator (graduating 3rd in his class of 68 in officer training), and having a very high engineering aptitude. He reported that at that time, he could work but that he was “out of place in a most alarming way.” Additional evidence in support of a TDIU consists of statements dated in November 2014 and March 2015 in which the Veteran’s VA treating psychologist opined that due to the severity of his mental illness, the Veteran was not able to maintain gainful employment. A May 2016 VA examiner essentially opined that if the Veteran sought post-retirement employment, he would have problems interacting effectively with supervisors, co-workers, and customers due to irritability, anger; and he had strong tendencies to isolate. In a March 2019 evaluation report by the Veteran’s VA therapist, M.S., opined that the Veteran would be incapable of gainful employment due to his severe PTSD and depression symptoms. Lastly, in October 2019, a private psychologist opined that the Veteran was totally disabled emotionally, and unable to function in any job due to his service-related condition. The Board finds these medical opinions to be persuasive and credible, particularly those provided by the Veteran’s VA treatment providers. In making this decision, the Board acknowledges that the Veteran has been able to perform certain activities since his retirement, such as completing EMT training, volunteering doing various community projects, and completing home projects. However, the Board finds this evidence to be of limited probative value given the lack of time limitations and pressures placed upon the Veteran in undertaking them (i.e., comparing the stress related to part-time or full-time employment and volunteering once or twice a week on a project). Thus, resolving doubt in the Veteran’s favor, the Board finds that the totality of the evidence of record supports that the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected PTSD. As such, the claim for TDIU is granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talpins, Patricia 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.