Citation Nr: 21007487 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 07-20 732 DATE: February 9, 2021 ORDER Entitlement to a disability rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD), is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his PTSD is manifested by symptoms consistent with occupational and social impairment, with deficiencies in most areas; total social impairment has not been shown. 2. Resolving reasonable doubt in favor of the Veteran, his combined service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1958 to January 1961. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Waco, Texas. By way of history, in January 2006, the Veteran submitted a claim for a disability rating in excess of 10 percent for his service-connected PTSD. In a September 2006 rating decision, the RO the claim and the Veteran filed a timely notice of disagreement (NOD). In June 2007, the RO issued a statement of the case (SOC) and the Veteran filed a timely substantive appeal. In his June 2007 substantive appeal, the Veteran requested a hearing at a local VA office. In January 2011, the Veteran testified in front of the undersigned Veterans Law Judge (VLJ) via live video conference. A transcript of the proceeding has been associated with the record. In an October 2011 decision, the Board remanded the issue for additional development and in February 2013, the RO issued a rating decision denying a disability rating in excess of 10 percent prior to February 7, 2012; and assigning a 30 percent disability rating thereafter. In a June 2014 decision, the Board granted an initial 30 percent disability rating for PTSD, effective January 24, 2006; and a 50 percent disability rating, effective May 13, 2008. The Board also referred an informal claim for entitlement to a TDIU to the RO for adjudication. The RO implemented the June 2014 Board decision, with regard to the claim for an increased rating for PTSD in a July 2014 rating decision. The Veteran appealed the June 2014 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In August 2015, the Court, based on a Memorandum Decision, vacated the Board’s denial of entitlement to increased disability ratings for PTSD and remanded the issue for further consideration. In a May 2017 decision, the Board remanded the issue for additional development and in an October 2019 decision, the Board granted a disability rating of 50 percent prior to May 13, 2008, denied a disability rating in excess of 50 percent from May 13, 2008, and denied entitlement to a TDIU. The Veteran appealed the October 2019 Board decision to the Court. In July 2020, the Court granted a July 2020 Joint Motion for Partial Remand (JMPR) to vacate the Board’s October 2019 decision because it failed to provide adequate reasons and bases for its determinations and remanded the case to the Board for further development and proceedings consistent and pursuant to 38 U.S.C. § 7252(a). 1. Entitlement to a disability rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD), is granted. The Veteran is seeking a higher disability rating for his service-connected PTSD. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating because he experiences hallucinations and delusions. See, e.g., July 2020 JMPR. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that the Veteran’s PTSD is currently evaluated Diagnostic Code 9411; a code rated according to the General Rating Formula for Mental Disorders. Here, the Veteran has been assigned a 50 percent disability rating for the period on appeal. Pursuant to the rating formula, a 50 percent disability 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. A 70 percent disability 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. A 100 percent disability 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; and memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the evidence of record, in a February 2006 VA treatment record, the Veteran reported living with his girlfriend. He had been married eleven times and was estranged from his oldest child. He was close to his siblings. On examination, the Veteran was oriented but reported a lot of anxiety and irritability. He denied hallucinations but reports that he saw his father in the room where his mother had died. He also sometimes heard noises at night that others do not hear, probably related to his hypervigilance. The Veteran’s mood was anxious, and there was no history of delusions or mania. In April 2006, the Veteran submitted a statement asserting that his disability had worsened. He was experiencing anxiety attacks and sleepless nights. In February 2007, the Veteran was afforded a VA PTSD examination. The Veteran reported having a high school education and working as a truck driver since 1975. The Veteran reported an explosive temper and violent potential. He also reported hypervigilance, anger control problems, anxiety attacks, nightmares, and flashbacks. The Veteran was able to engage in normal range of ADL’s without interruption. He was well oriented, and thought process was logical and he exhibited good social skills. He indicated a history of manic episodes and auditory hallucinations. He also indicated homicidal but not suicidal ideation. In an April 2008 third party correspondence, the Veteran voiced homicidal intent in a DAV office. In February 2010, the Veteran was afforded a VA mental health examination. He reported that his current relationship has lasted eight years. He also reported irritability, insomnia, hypervigilance, nightmares, avoidance, and emotional distance. The Veteran’s symptoms were noted to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. He was found to have mild PTSD. The Veteran was found to be functioning well and have close relationships with family. He also was able to continue his longer-term employment and the conditions at work did not increased his PTSD symptoms because he is generally able to work independently. In his January 2011 Board hearing, the Veteran asserted that he has a temper, depression, and that he doesn’t trust anyone. In a February 2012 VA PTSD examination, the Veteran was found to have occupational and social impairment due to mild or transient symptoms. The Veteran reported being married for eight years and good family relations. The Veteran reported not working since 2011. He stopped working due to problems with his liver. The Veteran reported anxiety, panic attacks that occur weekly, and chronic sleep impairment. He also reported hypervigilance, lack of motivation, intrusive thoughts, and avoidance symptoms. He also reported occasionally hearing someone talking indistinctly or seeing a shadow out of the corner of his eye. The Veteran also complained of memory loss. Basic repetition and recall were intact. In an April 2012 VA treatment record, the Veteran denied suicidal and homicidal ideation, and reported good relationships with family and normal number of friends. The Veteran reported that his biggest problem is his anger. On examination, his symptoms included, recurrent intrusive imagines, flashbacks, avoidance, restricted range of affect, irritability and outbursts of anger, hypervigilance, difficulty concentrating, and psychomotor agitation. The Veteran was neatly groomed and cooperative. He speech was spontaneous but normal, and his thought process was coherent, logical, and goal directed. There was no evidence of auditory, visual, or other hallucinations, delusions, or illusions. The Veteran also denied suicidal or homicidal ideation. In a March 2013 Correspondence. The Veteran reported nightmares and seeing ghosts when walking into a room and seeing people that others do not see. In an October 2014 VA psychiatric examination, the Veteran was found good relationships. The Veteran’s hygiene was good, and he maintained good eye contact. No psychomotor agitation was observed. The Veteran’s speech was normal, and the Veteran denied suicidal or homicidal ideation and hallucinations. Mood was euthymic overall with period of anger. In a September 2015 VA mental disorders examination, the Veteran reported that going to new places or to a movie, he typically has to excuse himself and go to the lobby once or twice during the show, to calm himself down due to all the people, especially the feeling of so many behind him he can’t keep an eye on. He also described good family relationships. He reported that as long as his stays in his bubble he is okay, but he does still experience anger problems. His symptoms were chronic sleep impairment, anxiety, suspiciousness, and difficulty in establishing and maintaining effective work relationships. In a September 2016 private opinion, following a thorough review of the record, the Veteran was found to have PTSD symptoms, including dissociative episodes, nightmares, homicidal and suicidal ideation, inappropriate behavior, anger outbursts, social withdrawal, auditory and visual hallucinations, intrusive memories, panic attacks, hypervigilance, and anxiety. In January 2018, the Veteran was afforded a VA PTSD examination. The Veteran was found to have depressed mood, anxiety, disturbances of motivation and mood, and chronic sleep impairment. He denied having any symptoms of delusions or hallucinations and he was cooperative, maintained good eye contact, and exhibited no inappropriate behavior. The Veteran denied having any current suicidal or homicidal ideation, plan, or intent. The Veteran appeared able to maintain personal hygiene and basic activities of daily living. The Veteran was well-oriented to all three spheres. The Veteran’s short- and long-term memory appeared to be without gross deficits. In a March 2019 buddy statement, the Veteran’s buddy asserted that the Veteran’s health problems would make it so that the Veteran would have to return home often when he would leave home. He also doesn’t associate with a lot of people over the past nine years. See also August 2019 Buddy Statement. Considering the evidence, and the entirely of the record, the Board grants an increased disability rating of 70 percent for PTSD. Giving the Veteran the benefit of the doubt, the Board finds that the record supports occupational and social impairment, with deficiencies in most areas, for the pendency of the appeal. The Veteran experienced active suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood. The evidence of record is at the least in relative equipoise as to whether the Veteran’s symptoms have been consistent throughout the appeals period and whether the suffered disruptions to his social life, work life, and mood due to his PTSD. Thus, throughout the period on appeal serious psychiatric symptoms were recorded such as those contemplated by a 70 percent rating. The Board next finds that the Veteran’s PTSD does not more nearly approximate a 100 percent disability evaluation under Diagnostic Code 9411. Specifically, the weight of the lay and medical evidence shows that the Veteran’s PTSD symptoms do not demonstrate total social impairment. The Veteran has remained married and reported good relationships with family. Although the Veteran has been found to have some social isolation, decreased motivation, and occasional delusions and hallucinations at no time during the appeal period have any examiners indicated that the Veteran’s PTSD resulted in total social impairment, to include gross impairment of thought process, persistent danger of hurting himself and others, or persistent delusions or hallucinations. Moreover, the Veteran specifically requested a 70 percent disability rating for PTSD. See October 2019 Court Appellate Br. For these reasons, and giving the Veteran the benefit of the doubt, the Board finds that a disability rating of 70 percent, and no higher, is warranted for the Veteran’s service-connected PTSD. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). 2. Entitlement to a TDIU due to service-connected disabilities is granted. The Veteran is seeking a TDIU. Specifically, he contends that he is unable to obtain and maintain gainful employment due to his service-connected disabilities. See, e.g., July 2020 JMPR. 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. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). In the case, the Veteran has herein been granted a disability rating of 70 percent for PTSD, effective January 24, 2006. The Veteran has also been granted service connection for hepatitis B with liver cirrhosis rated at 30 percent disabling, effective March 2006; tinnitus rated at 10 percent disabling, effective July 2007; diabetes mellitus type II rated as 10 percent disabling, effective April 2010; post-concussion headaches rated at 30 percent disabling, effective January 2011; traumatic brain injury rated as 10 percent disabling, effective January 2011; CAD rated as 30 percent disabling, effective August 2018, 60 percent effective October 2019, and 100 percent effective March 2020; and has noncompensable ratings for shell fragment wound scar rated, effective May 2000, for hearing loss effective July 2007. The Veteran is also service connected for left knee joint osteoarthritis rated at 10 percent; right knee joint osteoarthritis rated at 10 percent; atrial fibrillation rated at 10 percent; diabetic neuropathy, right upper extremity, rated at 40 percent; diabetic neuropathy, left upper extremity, rated at 30 percent; diabetic neuropathy, left lower extremity, rated at 20 percent; diabetic neuropathy, right lower extremity, rated at 20 percent; diabetic peripheral neuropathy, right lower extremity, rated at 20 percent; and, diabetic peripheral neuropathy, left lower extremity, rated at 20 percent, effective October 2019. As such, during this appeal, the Veteran meets the criteria for consideration for entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). Turning to the evidence of record, a February 2006 VA treatment record shows the Veteran employed as a gasoline transporter. No significant deficits in the Veteran’s regular activities of daily living or self-expression, self-concept, stress management, coping skills, organizing a task, or following instructions and maintain self-control were noted. In February 2007, the Veteran was afforded a VA PTSD examination. The Veteran reported having a high school education and working as a truck driver since 1975. He reported that he would get into fights on-the-job. The Veteran’s PTSD was found to have only a mild effect on his social functioning. In May 2008, the Texas department of assistive and rehabilitative services determined that the Veteran is not available for vocational rehabilitation services because his medical and psychological records determined that he was unstable. In his August 2008 VA Form 9, the Veteran asserted that his lost his job because of his explosive temper and is unable to obtain another form of employment. He has been through more jobs than he can count. In February 2010, the Veteran was afforded a VA mental health examination. He reported that his current relationship has lasted eight years. The Veteran works with horses, goes hog hunting and likes to fly kites. The examiner noted that the Veteran’s record shows depression in July 2009. He also lost his previous job in June 2008 due to an altercation with a woman in traffic. The Veteran’s symptoms were noted to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran was found to be functioning well and have close relationships with family. He also was able to continue his longer-term employment and the conditions at work did not increased his PTSD symptoms because he is generally able to work independently. The Veteran enjoyed doing things with his family. In his January 2011 Board hearing, the Veteran asserted that he is self-employed and has been for most of his life. Before that he hauled gas but was let go due to his temper. In a February 2012 VA PTSD examination, the Veteran was found to have occupational and social impairment due to mild or transient symptoms. The Veteran reported being married for eight years and good family relations. The Veteran reported not working since 2011. He stopped working due to problems with his liver. In a February 2021 VA cirrhosis and other liver conditions, the Veteran’s condition was not found to inhibit the Veteran for obtaining and maintaining sedentary employment as he has not been hospitalized for this condition in the past year. And in a February 2012 VA skin diseases examination, the Veteran reported having to miss work on multiple occasions for appointments and treatments for his condition. In an April 2012 VA treatment record, the Veteran reported that he hasn’t worked in six months due to increasing medical problems. When he did work, he had to change jobs frequently due to difficulties with coworkers. He was able to work for himself until his retirement the previous year. The Veteran also enjoyed horseback riding, he was preparing for a long horse-riding event as a fund-raiser for his church, and there were no issues with self-care. In a September 2015 VA mental health examination, the Veteran described good family relationships, and going on long motorcycle rides. He worked on his motorcycles as a hobby. He had to stop riding horses due to a back surgery. He also asserted that he cannot drive a truck due to tiredness and his liver and stomach issues. The Veteran appeared to be independent and reasonably productive. In a September 2016 private opinion, following a thorough review of the record, the Veteran was found to be unable to obtain and maintain any type of consistent occupational employment. Although the Veteran can communicate with his family, the remainder of his social interactions are somewhat limited, even though there are brief periods of remission, to include his time he spent with a motorcycle club. The majority of his days, however, are not spent in the presence of people or where he would be required to engage with people. The psychiatric noted that being able to communicate only with a motorcycle club comprised of fellow Veterans with PTSD is not a realistic and consistent way of social interaction and functioning. In a June 2018 VA headaches examination, the Veteran’s headaches were found to limit the Veteran’s ability to work in that they are occasionally incapacitating. See also March 2020 VA Headaches Examination (noting inability to concentrate on tasks). In a September 2018 VA heart conditions examination, the Veteran’s ability to work was found to be affected in that he had missed one week of work in the last year. He also had difficulty with walking, running, climbing, descending, squatting, kneeling, and lifting moderate-heavy objects due to low endurance, easy fatigability, shortness of breath, and weakness. See also March 2020 VA Heart Examination; November 2019 VA Heart Examination. In a March 2019 VA hepatitis and liver cirrhosis examination, the Veteran’s ability to work was found to be limited by fatigue and malaise. In addition, in a March 2020 VA diabetic neuropathy examination, the Veteran was found to be unable to perform any fine motor tasks with his upper extremities and cannot perform any activities requiring a sense of balance due to his lower extremities. Any job, active or sedentary, that requires such is prohibitive. The Board finds that, when reviewed together, the VA examination, treatment records, and lay statements of record demonstrate that the Veteran would be unable substantially gainful employment due to his education and inability to concentrate, stomach malaise/liver associated problems, limited fine motor skills, and psychiatric disability. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s combined service-connected disabilities, such as his PTSD, headaches, and hepatitis B with liver cirrhosis, and CAD, render him unable to secure or follow a substantially gainful physical or sedentary occupation. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Accordingly, entitlement to a TDIU is granted. 38 C.F.R. § 4.16(a). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.