Citation Nr: 21007657 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-42 670 DATE: February 10, 2021 ORDER A rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability (TDIU) prior to June 23, 2019, is granted. FINDINGS OF FACT 1. For the entire period of the appeal, the competent and probative evidence is at least in equipoise as to whether the Veteran’s psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities precluded substantially gainful employment prior to June 23, 2019. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for PTSD for the entire period of the appeal have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for the grant of TDIU prior to June 23, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to August 1998. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a Board videoconference. A transcript of the hearing has been associated with the virtual file. The Veterans Law Judge who held the hearing is no longer at the Board; thus, the Veteran was provided the opportunity for another hearing. The Board notified him by letter that if he did not respond within 30 days, it would be assumed he did not want another hearing. The Veteran did not respond to the Board’s letter. This case was previously before the Board in October 2018, on which occasion the issues of an increased rating for PTSD and TDIU were remanded. Inasmuch as there has been substantial compliance with the October 2018 Board Remand’s directives with the necessary examination that is adequate for the reasons discussed below, there is no need for additional remands to ensure compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In July 2019, the RO granted a 70 percent rating for PTSD effective June 23, 2019. In August 2020, the RO granted TDIU effective June 23, 2019. As the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, the issue of an increased rating greater than 50 percent prior to June 23, 2019, and greater than 70 percent thereafter remains on appeal. Similarly, the issue of a TDIU prior to June 23, 2019, remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating 1. Entitlement to a rating in excess of 50 percent prior to June 23, 2019, and in excess of 70 percent thereafter for PTSD. The Veteran contends that he is entitled to a rating in excess of 50 percent prior to June 23, 2019, and in excess of 70 percent thereafter for PTSD, evaluated under DC 9411. See October 2020, Appellate brief; May 2018, Hearing transcript; May 2014, NOD. Psychiatric disabilities are rated based on the General rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that “the presence of all, most, or even some, of the enumerated symptoms” is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, “VA must engage in a holistic analysis” of the severity, frequency, and duration of the signs and symptoms of the veteran’s mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula, a 50 percent rating are as follows: 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. The criteria for a 70 percent rating are as follows: 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; obsessive 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 worklike setting); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The criteria for a 100 percent rating are as follows: 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, own name. 38 C.F.R. § 4.130. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating 70 percent, but no higher, for service-connected PTSD is warranted prior to June 23, 2019. The Veteran contends that he suffers from the following psychiatric symptoms: auditory hallucinations (voices telling him to kill people), depression, anxiety, anxiety attacks that sometimes compel him to hide in the closet, night sweats, nightmares, insomnia, and memory loss with occasional blackouts. During the Board hearing in May 2018, the Veteran’s wife stated that the Veteran has shared thoughts of suicide stating he no longer wanted to be a problem to the family. His wife also reported the Veteran has angry outbursts, is irritable, yells a lot, has a strained relationship with his children, is hypervigilant, and avoids crowds (even at family functions). The Veteran reported taking prescription psychiatric medication, but the symptoms persist. See May 2018, Hearing transcript; May 2014, NOD. Private treatment records indicate the Veteran’s PTSD symptoms include poor concentration, poor memory, low tolerance to stress, irritability, insomnia, withdrawing from crowds, depression, anxiety, difficulty completing tasks, quick temper, forgetfulness, flashbacks, intrusive thinking, nightmares, night terrors, night sweats, non-trusting, suspicious of others, and bothered by noise. The Veteran also complained of olfactory hallucinations (smelling burning flesh). See October 2013, Private treatment records. A March 2013 VA examination report attributed the following psychiatric symptoms to PTSD: suicidal ideation, recurrent memories of war, night sweats, irritability, depressed mood, mood swings, chronic sleep impairment, mild memory loss, and difficulty adapting to stressful circumstances. The Veteran also reported occasionally hearing voices and experiencing black outs. The clinician noted the Veteran has been married for 14 years, has two minor children (ages 13 and 8), and was last employed as a security escort until late 2008 when he could no longer work. Based on the examination, the VA clinician opined that the Veteran’s psychiatric symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. March 2013, VA examination. In April 2014, a VA examiner diagnosed Other Specified Personality Disorder (Histrionic and Narcissistic). The examiner failed to consider the Veteran’s lay statements regarding his symptoms or medical and lay evidence of record. The Board, accordingly, accords little probative weight to the April 2014 VA examination. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history). A July 2015 VA examination noted PTSD symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. See July 2015, VA examination. A June 2019 VA examination noted PTSD symptoms of irritability, depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The Veteran also reported he cannot always control himself verbally and does not tolerate “stupid” behavior. The clinician noted the Veteran is still married, has to children (ages 19 and 14) living at home, and stopped working in 2008 as a security contractor because he tends to “fly off the handle.” when he could no longer work. Based on the examination, the VA clinician opined that the Veteran’s psychiatric symptoms result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Board finds the June 2019 VA examination competent, credible, and highly probative as it properly reviewed all relevant medical records, considered the Veteran’s lay statements, and was supported by an in-person examination. See June 2019, VA examination; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the foregoing, the Board finds that a rating of 70 percent, but no higher, is warranted for PTSD because the competent and probative evidence is at least in equipoise as to whether the Veteran’s PTSD symptoms result in occupational and social impairment with deficiencies in most areas, such as family relations, judgment, thinking, and mood. See 38 C.F.R. § 4.130, DC 9411. Specifically, the Board notes evidence demonstrating PTSD symptoms of: suicidal ideations, nightmares, avoidance of crowds, depressed mood, mood swings, panic attacks where the Veteran hides in the closet, chronic sleep impairment, depression, memory loss with occasional blackouts, irritability, angry outbursts, auditory hallucinations, difficulty adapting to stressful circumstances, and difficulty establishing and maintaining effective work and social relationships. See VA examinations dated March 2013 and June 2019; May 2018, Hearing transcript; May 2014, NOD; October 2013, Private treatment record. Although the Veteran has a strained relationship with his children, he has been married for over 20 years. See May 2018, Hearing transcript. The Board, accordingly, finds that the Veteran’s psychiatric symptoms support a 70 percent rating for service-connected PTSD for the entire period on appeal. The Board has engaged in a holistic analysis of the severity, frequency, and duration of the signs and symptoms of the Veteran’s PTSD but finds that his mental health symptoms do not more nearly approximate a 100 percent rating. The Board acknowledges the Veteran suffers from auditory hallucinations (with an unspecified frequency) and memory loss; however, the majority of the Veteran’s symptoms are specifically contemplated under the rating criteria for a 70 percent (or lower) evaluation. See 38 C.F.R. § 4.130. In finding that the weight of the competent evidence does not support a finding of total occupational and social impairment, the Board has also considered as a factor that the evidence does not indicate PTSD causes gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130. Total inability to function socially and occupationally has therefore not been shown by the relevant evidence. All possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), but the Veteran could not receive a higher or separate rating for his PTSD for the period on appeal. See 38 C.F.R. § 4.130. Indeed, when a disorder is listed in the Rating Schedule, rating by analogy is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). TDIU 2. Entitlement to TDIU prior to June 23, 2019. The Veteran asserts that his service-connected disabilities prevent him from obtaining and retaining substantially gainful employment. Specifically, the Veteran contends service-connected PTSD causes him to “fly off the handle,” heightened anxiety around crowds of any number, chronic sleep impairment, and memory loss with blackouts; as a result, he is unable maintain gainful employment. See June 2019, VA examination; May 2018, Hearing transcript; November 2014, VA Form 9. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled Veteran 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 disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. For purposes of entitlement to a TDIU rating, disabilities resulting from a common etiology are considered as one disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor that places the Veteran in a different category than other Veterans with equal ratings of disability. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board has reviewed the evidence of record and finds that TDIU prior to June 23, 2019, is warranted. As the Board has granted a rating of 70 percent for PTSD for the entire period on appeal, the schedular threshold requirement for TDIU was met. See 38 C.F.R. §§ 4.16(a), 4.25. The record demonstrates that the Veteran graduated from high school and entered the military at age 18. Post-service work included work in a pizza store, a spandex company, full-time caregiver for his daughter, and security escort contractor until 2008. The Veteran stopped working because inguinal pain and difficulty getting out of bed due to PTSD. In 2002, the Veteran studied kinesiology for one-year and later took an Associate of Art degree in forestry. The Veteran stated service-connected inguinal prevents him from walking without a lot of pain, running, or lifting anything over 50 pounds. Additionally, all the medications he has taken for that disability put him in a “zombified” state. See June 2018, VA Form 21-8940; May 2018, Hearing transcript; March 2013, VA examination. Treatment records as early as 2014 indicate the Veteran was not capable of working because PTSD caused heightened anxiety around groups of people of any size, difficulty managing anger, decreased focus and concentration, and irritability. See Vocational Rehabilitation records—May 2014, February 2016, and February 2018. In light of the above, as well as evidence discussed in the Increased Rating section, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected PTSD rendered him unable to secure and maintain gainful employment prior to June 23, 2019. Resolving reasonable doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether the functional impairment due to his depression, when taken in conjunction with the Veteran’s educational background and occupational history, precluded gainful employment prior to June 23, 2019. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.