Citation Nr: 21006783 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-18 733A DATE: February 5, 2021 ORDER Entitlement to a disability rating of 70 percent for post-traumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran’s service-connected PTSD is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. Throughout the appeal period, it is reasonably shown that the Veteran’s service-connected PTSD precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for entitlement to a TDIU due to the Veteran’s service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1973 to December 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in December 2020. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the increased rating claim on appeal. Rice, 22 Vet. App. 447. 1. Entitlement to a disability rating of 70 percent for PTSD. The Veteran’s PTSD is rated at 50 percent, effective May 8, 2017. His PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted when the evidence shows 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 in establishing and maintaining effective work and social relationships. 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 that 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 worklike setting); inability to establish and maintain effective relationships. 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, 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). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. The Board notes that in a United States Court of Appeals for Veteran’s Claims’ (Court) decision, the Court concluded that there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent criteria. The presence of suicidal ideation alone, that is, a Veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017). As the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the code, the Board must consider all symptoms of a claimant’s condition that affect occupational and social impairment. Mauerhan, 16 Vet. App. at 443. If the evidence demonstrates that a 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. Id. The Board finds that throughout the appeal, the Veteran’s service-connected PTSD has been productive of occupational and social impairment in most areas due, at least in part, to suicidal ideation. Despite the November 2017 VA examiner’s opinion that the Veteran’s psychiatric disorder resulted in occupational and social impairment due to mild or transient symptoms, the Board finds that the Veteran’s symptoms, chiefly his suicidal ideation, are suggestive of occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Indeed, the Board’s determination is in line with the March 2019 VA examiner’s opinion that the Veteran’s psychiatric disorder resulted in impairment in most areas. During the December 2020 hearing, the Veteran testified that he has suicidal ideation and his current level of severity has been true for several years. He also stated that he has interpersonal problems, does not have friends, and does not communicate much with his son. After resolving any doubt in the Veteran’s favor, the Board finds that throughout the appeal the Veteran’s service-connected PTSD has been productive of occupational and social impairment in most areas. Accordingly, an initial 70 percent rating for PTSD is warranted. During the December 2020 Board hearing, the Veteran and his representative indicated that the award of a 70 percent rating throughout the appeal would constitute a full grant of the benefit sought on appeal. Accordingly, the Board need not address entitlement to a 100 percent rating. See AB v. Brown, 6 Vet. App. 35 (1993). 2. Entitlement to a TDIU due to the Veteran’s service-connected PTSD. It is the established policy of the 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. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, 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). The Veteran asserts that his service-connected PTSD alone causes him to be unable to secure or follow a substantially gainful occupation. See Hearing Testimony, December 2020. As the Board has granted a 70 percent disability rating for the Veteran’s service-connected PTSD in this decision, effective May 18, 2017, the Board notes that his PTSD meets the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38 C.F.R. § 4.16. On his TDIU application, the Veteran reported that he last worked as a mechanic in 1999. See VA Form 21-8940, December 2020. At the November 2017 VA examination, the Veteran reported that he is currently unemployed, and he stopped working in the early 2000s. During the December 2020 hearing, the Veteran testified that he has not worked since 2000. In February 2020, a licensed clinical social worker submitted a statement noting that the Veteran is an active member at the Veteran Center and has been attending therapy sessions since September 2019. The social worker stated that the Veteran has not been able to hold a long-term job and it is expected that if he attempted employment, he would not be successful due to the level and impact of his PTSD symptoms. The social worker also stated that the Veteran’s symptoms impact him greatly and are to the point that he would not be expected to be able to perform duties that would allow him to hold meaningful employment; due to the severity and chronic nature of his symptoms, the Veteran’s symptoms are not expected to improve. After a review of the evidence of record, and resolving any reasonable doubt as mandated by law, the Board finds that the evidence supports that the Veteran’s service-connected PTSD prevents him from securing or following substantially gainful employment. In sum, the Board finds that entitlement to a TDIU based on the Veteran’s service-connected PTSD alone is warranted, effective May 18, 2017, the effective date of the Veteran’s 70 percent disability rating for his service-connected PTSD. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, 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.