Citation Nr: 21007011 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-58 439A DATE: February 8, 2021 ORDER Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) and alcohol abuse is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. 2. Since April 20, 2016, the Veteran’s service-connected disabilities rendered him unemployable. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD and alcohol abuse are not 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. 2. Since April 20, 2016, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from January 1970 to September 1971. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. These issues were previously before the Board, most recently in October 2019, when remanded for a new VA examination. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 70 percent PTSD and alcohol abuse is denied. The Veteran filed an increased rating claim in April 2016. The Veteran contends that the June 2016 VA examination did not fully reflect the severity of his symptoms. Alternatively, the Veteran contends that his PTSD symptoms have worsened since his June 2016 VA examination. Under the General Formula for Mental Disorders (General 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 issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 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 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; or memory loss for names of close relatives, own occupation or own name. VA and private treatment records, the January 2020 VA examination, and the Veteran’s lay statements show that the Veteran’s PTSD and alcohol abuse was manifested by symptoms associated with a 70 percent rating (near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA and private treatment records and the January 2020 VA examination indicate that the Veteran had appropriate appearance and grooming. The Veteran demonstrated slightly restless motor activity and was cooperative during the exam. Rapport was easily established. The Veteran’s speech and volume was at a normal rate and his attention and concentration were intact. The Veteran maintained appropriate eye contact during the exam. Affect was restricted or flat and mood was slightly anxious. The Veteran demonstrated average to above average intellectual functioning and his thought processes were linear, and he did not display any perceptional issues/psychotic features during the exam. Veteran did not report any current intention of suicide or homicide. During the January 2020 VA examination, the Veteran reported residing in a camping trailer alone and spent time watching TV and attending doctor’s appointments. The Veteran denied romantic relationships or close friends. The Veteran slept three to six hours a day and reported sleep issues, including nightmares three to four times a week, and initiating and maintaining sleep. The Veteran reported “7/10” depressed mood three days a week and “6-7/10” anxiety. The Veteran reported independent activities of daily living. In December 2015 and March 2016, a VA psychiatrist assessed the Veteran’s suicide risk as “low.” In February 2016, the Veteran reported nightmares. In March 2016, the Veteran began individual psychotherapy. In June 2016, the Veteran underwent a VA examination. The Veteran presented on time for the appointment. The Veteran presented as a casually and seasonally dressed and appeared his stated age. He stated he drove alone to the appointment. The Veteran was alert and oriented to person, place, time, and situation. Affect was dysphoric and irritable. Mood was described as “It's not good.” Affect and mood were congruent for context and setting. Speech was spontaneous, and amplitude, pace and prosody were “normal.” There was no evidence that the Veteran was responding to internal stimuli, and there were no overt delusions evident in the Veteran’s expressed thoughts. The Veteran denied having any recent or acute suicidal or homicidal ideation, intent, and plans, in active or passive forms. Judgement appeared intact. Overall, general memory and concentration appeared intact. The VA examiner opined that the mental disorder was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. In June 2017, the Veteran presented to a VA psychiatrist with depressed mood, difficulty sleeping, anhedonia, guilt associated with perception of the self, decreased concentration, lethargy, fluctuating appetite, psychomotor agitation, and history of suicidal ideation with current passive suicidal ideation with tentative plan, no intent, preparation, or rehearsal. The VA psychiatrist found the Veteran adequately groomed, he appeared his stated age, he was depressed with mild irritability, congruent affect with mood, logical, linear, and goal-oriented thought. There was moderate insight, he was oriented to person, place, time, and situation, fair judgment, normal speech, and the Veteran was cooperative and attentive. In May 2019, the Veteran reported living with daughter. In November 2019, a VA psychiatrist found his mood “euthymic,” “2/10” depression, and “2/10” anxiety. The Veteran report occasional nightmares three to five times a month. In December 2019, a VA psychiatrist found the Veteran's mood “euthymic” and his sleep “poor quality, non-restorative.” The Veteran reported to a VA psychiatrist “2/10” depressed mood, difficulty maintaining sleep but fewer nightmares, feeling tired, and intrusive thoughts. In January 2020, a VA psychiatrist found the Veteran's mood “euthymic” and his sleep “better with medication.” In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. There is no evidence demonstrating that the PTSD was productive of 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. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. 2. Entitlement to TDIU is granted. The Veteran filed a TDIU claim in April 2016. The Veteran contends his service-connected disabilities prevent him from securing and following a substantially gainful occupation. 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 or as a result of two or more disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran had a combined disability rating of 80 percent for the period at issue; therefore, the Veteran meets the minimum percentage requirements for TDIU. 38 C.F.R. § 4.16(a). The central inquiry is “whether that veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is not required to show 100 percent unemployability; the question is whether he is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Whether the veteran can find employment is not determinative, as the focus of the inquiry is on “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). For the period at issue the Veteran was service connected for PTSD and alcohol abuse at 70 percent and post-icteric hepatitis at 10 percent. Review of the record reveals that the Veteran has an associate degree in business from 1972. The Veteran’s primary career field was a master carpenter or builder. His longest place of employment was a self-employed as a builder for about ten years, from 1979 to 1990. The Veteran reported that he worked “mostly” full time and reported that he worked during the day. The Veteran reported that he discontinued his self-employment because he was unable to “keep the business going” as a single operator. The Veteran’s last place of employment was for a company as general foreman for three to four years, from 1996 to 2000. The Veteran reported that he worked on a full-time basis and reported that he worked dayshift. The Veteran reported that he discontinued this employment because he injured his shoulder. The Veteran denied any issues with chronic absences, chronic tardiness, productivity, or significant conflicts with coworkers. The Board finds that the preponderance of the evidence establishes that the Veteran is entitled to TDIU due to his service-connected conditions since April 20, 2016. The Veteran is competent to describe his observable symptoms, as such probative weight is given to his lay statements. In June 2016, the Veteran reported depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. In January 2020, the Veteran reported depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. The Board finds that these service-connected symptoms, including an inability to establish and maintain effective relationships, would prevent the Veteran from returning to substantial gainful work as a foreman or running his own business or working effectively with colleagues on a full-time basis. The Board finds that the Veteran’s lack of motivation and difficulty adapting to stressful circumstances would make it difficult to avoid issues with chronic absences, chronic tardiness, productivity, or significant conflicts with coworkers. When considering the overall combined effects of the Veteran’s service-connected conditions, the Board finds that the evidence supports a finding of TDIU since April 20, 2016. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, Associate 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.