Citation Nr: 21007877 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-62 366 DATE: February 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran’s service-connected PTSD prior to January 1, 2020 is granted. Entitlement to a disability rating of 100 percent for service-connected PTSD beginning January 1, 2020 is granted. REMANDED Entitlement to a disability rating in excess of 70 percent for service-connected post-traumatic stress disorder (PTSD) prior to January 1, 2020 is remanded. FINDINGS OF FACT 1. Beginning January 1, 2020, the Veteran’s PTSD manifested by total and occupational social impairment. 2. Prior to January 1, 2020, it is reasonably shown that the Veteran’s service-connected disability precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 100 percent for service-connected PTSD beginning January 1, 2020 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 PTSD alone prior to January 1, 2020 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 August 2002 to July 2005 with service in Iraq from March 2003 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 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. 1. Entitlement to a disability rating of 100 percent for service-connected PTSD beginning January 1, 2020. The Veteran’s PTSD is rated at 30 percent disabling from August 1, 2005 to November 5, 2012 and 70 percent disabling beginning November 5, 2012. The Veteran contends that his PTSD is more disabling than the rating indicates and warrants a 100 percent schedular rating throughout the appeal period. The Veteran’s 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 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 9411. The symptoms listed in 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). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). 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 the 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. During the December 2020 Board hearing, the Veteran testified that his PTSD symptoms have worsened since service and he feels that “every day.” He stated that he used to be “full of hope,” but is now divorced and has memory issues. The Veteran also testified that he deals with severe depression daily, struggles with sleeping, has panic attacks, nightmares, and anxiety, and cannot deal with crowds, which leads him to isolate. He stated that he lives by himself, has no social life, is alone 98 percent of the time, and sometimes dreams of not waking up one day. In December 2020, a private physician interviewed the Veteran and concluded that the Veteran’s PTSD causes total occupational and social impairment. The private physician noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, and intermittent inability to perform activities of daily living. The private physician opined that it is more likely than not that his PTSD and secondary depression have rendered him to be totally occupationally and social impaired and unemployable since the early months of 2020. The Board notes that the December 2020 opinion regarding the Veteran’s claim for an increased rating for PTSD is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data, and the Board finds the opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given the above medical and lay evidence and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s disability more closely approximates the picture contemplated by a 100 percent rating, beginning January 1, 2020. The December 2020 private physician’s opinion, coupled with the Veteran’s testimony, demonstrates that the Veteran’s PTSD symptoms have worsened to the point of total occupational and social impairment since the beginning of 2020. Therefore, a disability rating of 100 percent for the Veteran’s PTSD is granted beginning January 1, 2020. 2. Entitlement to a TDIU due to the Veteran’s service-connected PTSD prior to January 1, 2020. 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). The Veteran asserts that his service-connected PTSD alone causes him to be unable to secure or follow a substantially gainful occupation. See VA Form 21-8940, August 2014. As the Veteran has a 70 percent disability rating for his service-connected PTSD, effective November 5, 2012 to January 1, 2020, 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 in January 2014. See VA Form 21-8940, August 2014. The Veteran noted that he left his last employment due to his disability but tried to obtain employment in April 2014. The Veteran reported three years of college education. During the December 2020 hearing, the Veteran testified that he drove for Lyft a few hours a day about four or five months ago and once worked part-time for his father. In a January 2015 VA examination, the Veteran reported that he is presently unemployed and his last employment was with his father’s company for four to six months until he quit because he was not allowed to take time off to attend his weekly appointments at the VA. He also reported that his longest employment was off and on with a furniture installing company for four to five years until the company ran out of work in 2010. The examiner concluded that if the Veteran relapses with substance use, his ability to work will be greatly affected. The examiner further stated that the Veteran’s PTSD symptoms of social isolation and emotional detachment, for example, make it difficult for him to take direction from a supervisor and interact with the public. In January 2016, a mental residual functional capacity questionnaire was conducted where the examiner noted marked restriction of activities of daily living, marked degree of difficulty in maintaining social functioning, and frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely and appropriate manner. The examiner also noted that the Veteran has marked limitations in his ability to understand, carry out, and remember instructions, respond appropriately to customary work pressures, perform simple tasks, perform repetitive tasks, and complete work related activities in a normal workday or workweek. In December 2020, a private physician interviewed the Veteran and noted that the Veteran was gainfully employed full-time during the period of 2010 to 2017. In 2017, the Veteran lost his job and worked erratically during the period of 2017 to 2019. The private physician noted that the Veteran worked part-time as a Lyft driver in January 2019 but has not worked at all since the beginning of 2020. 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. As the Board granted a 100 percent disability rating for the Veteran’s PTSD beginning January 1, 2020 in this decision, the relevant time period for the award of TDIU is the period prior to January 1, 2020. In sum, the Board finds that entitlement to a TDIU based on the Veteran’s service-connected PTSD alone is warranted prior to January 1, 2020. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 70 percent for service-connected post-traumatic stress disorder (PTSD) prior to January 1, 2020 is remanded. It appears that the record does not contain updated medical treatment records. Because the treatment records may have significant probative value, VA must attempt to retrieve any missing or updated records before the Board can properly adjudicate the Veteran’s claim for a rating in excess of 70 percent for PTSD prior to January 1, 2020. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Afford the Veteran a VA psychiatric examination to determine the nature, extent and severity of his PTSD prior to January 1, 2020. 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.