Citation Nr: 21008381 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 11-12 389 DATE: February 16, 2021 ORDER For the period prior to February 7, 2017 a disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. For the period from February 7, 2017 to April 7, 2017, an increased 70 percent rating for PTSD is granted. For the period from April 7, 2017 to December 7, 2019 a disability rating in excess of 70 percent for PTSD is denied. For the period from February 7, 2017 to April 7, 2017 a total disability rating based on individual unemployability (TDIU) is granted. REMANDED ISSUE The issue of entitlement to an extra-schedular TDIU prior to February 7, 2017 is remanded. FINDINGS OF FACT 1. Prior to February 7, 2017, the Veteran’s PTSD was productive of deficiencies in the areas of work, thinking, and mood. 2. For the period from February 7, 2017 to December 7, 2019, the Veteran’s PTSD was productive of occupational and social impairment with deficiencies in most areas, including work, thinking, mood, judgment, and family relations. 3. The Veteran’s PTSD did not result in total occupational and social impairment prior to December 7, 2019. 4. The Veteran did not meet the schedular criteria for consideration of the assignment of a TDIU prior to February 7, 2017. 5. Since February 7, 2017, the Veteran’s service-connected PTSD has rendered him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. For the period prior to February 7, 2017, the criteria for a rating in excess of 50 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. For the period from February 7, 2017 to April 7, 2017, the criteria for an increased 70 percent rating for PTSD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. 3. For the period from April 7, 2017 to December 7, 2019, the criteria for a disability rating in excess of 70 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement a TDIU are met, effective February 7, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.19. VETERAN CONTENTIONS The Veteran, through his representative, contends that his PTSD manifested as 70 percent disabling before the period on appeal until June 30, 2011 because prior to leaving the workforce he experienced persistent hallucinations, homicidal thoughts, and suicidal thoughts. Through his representative, the Veteran also contends that while his immediate reason for leaving his job in 2011 was a non-service-connected pulmonary embolism, his condition was pulmonary embolism condition was not permanently disabling, and he could have reentered the workforce but for his worsening PTSD symptomatology. The Veteran contends that during his employment at the railroad everything was a struggle. He contends that it was difficult to follow instructions and to be around people while “fighting [his] Vietnam demons”; the other person on the two-man crew did not understand him because of his outbursts. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty, during the Vietnam Era, from December 1969 to December 1971. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in June 2014, when it was remanded for further development, and August 2018, at which time the Board granted a 50 percent rating for the period prior to January 15, 2013 and a continued 50 percent rating for the period thereafter for the Veteran’s PTSD. At that time, the Board denied the Veteran’s claim of entitlement to a TDIU. The Veteran appealed the August 2018 Board decision to the Court of Appeals for Veterans Claims (CAVC), which resulted in a February 2019 Joint Motion for Partial Remand (JMPR) by the parties. Thereafter, the appeal returned to the Board in February 2020 and was remanded to obtain a new VA examination in response the Veteran’s report of his worsening PTSD symptoms. The Veteran was afforded a new VA examination. Accordingly, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The ensuing August 2020 rating decision granted a 70 percent rating for PTSD effective April 7, 2017, entitlement to a TDIU with the same effective date, and a 100 percent rating for PTSD effective December 7, 2019. As the 100 percent disability rating is the maximum benefit to which the Veteran in this case is entitled, the Board in this decision limits its analysis to his entitlement to higher ratings for the period prior to December 7, 2019, including his entitlement to a TDIU rating. See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In January 2013, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who has since retired from the Board; a transcript is of record. The Board offered the Veteran an opportunity to appear at another hearing before a VLJ who would participate in the final decision but, in a May 2018 response, the Veteran waived his right to another hearing and requested that the Board consider his case on the evidence of record. Disability Ratings As a preliminary matter, the Board has reviewed all evidence in the claims file with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. To warrant a higher disability rating under 38 C.F.R. § 4.130, the evidence must show or most closely approximate: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, 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 worklike setting); inability to establish and maintain effective relationships (70 percent). total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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 (100 percent). The list of symptoms under the rating criteria are examples of symptoms that would warrant the rating, but are not exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran is service connected for PTSD with major depressive disorder and alcohol abuse. His PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. During the pendency of the appeal, the RO increased his rating to 50 percent effective February 20, 2009; 70 percent effective April 7, 2017; and 100 percent effective December 7, 2019. The increased rating, although 100 percent, represents a partial grant because it does not encompass the entire period on appeal. See Ab v. Brown, 6 Vet. App. 35, 38 (1993). Thus, a determination regarding whether the Veteran is entitled to higher ratings between February 20, 2009, the date of the increased rating claim, and December 7, 2019, the effective date of his 100 percent rating, is warranted. 1. Entitlement to an increased 70 percent rating prior to April 7, 2017 In light of the record as a whole, the Board finds that the Veteran is entitled to an increased 70 percent disability rating for PTSD effective February 7, 2017, but not prior to that date. Prior to February 7, 2017, the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity due to trouble sleeping; difficulty concentrating; and a persistent depressed mood, hypervigilance, and lack of motivation. The Veteran worked in the same job for over 35 years and left full-time employment in 2011 due to a pulmonary embolism, but prior to leaving his job, he preferred to work the nightshift with less people. See 7/1/2014 CAPRI, 10/19/2015 C&P Examination, 3/31/2020 C&P Examination, Railroad Retirement Board Service and Compensation Report. Although the Veteran admitted to having suicidal and homicidal thoughts in the past, particularly related to one of his son’s death in a motor vehicle accident, the record reflects a lack of suicidal or homicidal thoughts or intent from October 2007 to December 2019 when the Veteran ascribed to suicidal ideation without plan or intent. See e.g., 10/31/2007 VA Examination, 7/1/2014 CAPRI, 12/27/2019 Medical Treatment Record (Hines), 12/23/2019 Medical Treatment Record-Non-Government Facility in 2007. Additionally, while there is evidence of auditory hallucinations in August 2009 and April 2012, the Veteran denies hallucinations of any kind throughout the remainder of the record. See 7/1/2014 CAPRI, 12/29/2015 CAPRI, 12/23/2019 Medical Treatment Record, 4/02/2020 CAPRI, 3/31/2020 C&P Examination. Finally, although the Veteran is a self-described “clean fanatic”, there is no evidence that his cleaning habits during this period interfered with routine activities. While consistently irritable throughout the record, the Veteran’s irritability was not shown to be associated with violence. Prior to February 7, 2017, the Veteran’s PTSD did not impact his hygiene and, while his disability made it difficult to establish and maintain effective relationships, it did not preclude the establishment of effective relationships. He was able to maintain a marriage for over 35 years, albeit with difficulty, and, prior to February 7, 2017, he joined a motorcycle club, took piano lessons, engaged with neighbors occasionally, took vacations, and met with Veterans group members for monthly meals. See e.g., 12/27/2019 Medical Treatment Record (Hines). Until February 7, 2017, the Veteran’s PTSD more closely approximated a 50 percent disability rating. The evidence of record began to show occupational and social impairment with deficiencies in most areas as of February 7, 2017. In January 2017 the Veteran was seen by his regular mental health provider for follow-up on his PTSD, and the provider noted his PTSD was unchanged. However, three months later (on April 7, 2017), the Veteran reported feeling poorly for two months and having experienced increased nightmares (occurring four times per week). 12/27/2019 Medical Treatment Record (Hines). During that visit, the Veteran’s regular medical provider opined that the Veteran’s PTSD was declining with more problems sleeping and more problems with focus. Id. Because the record reflects that the start of the Veteran’s increased PTSD symptoms occurred two months prior to the therapy visit which recorded those symptoms, it stands to reason that February 7, 2017 should be the effective date of his increased disability rating. Considering the record in its entirety, the Board finds that the Veteran is entitled to a 70 percent disability rating for PTSD prior to the already established April 7, 2017 effective date, but no earlier than February 7, 2017. 2. Entitlement to disability rating of 100 percent for PTSD prior to December 7, 2019 Between February 7, 2017 and December 7, 2019, the Veteran presented with deficiencies in most areas, but thereafter presented with total occupational and social impairment. Although the Veteran was unable to work prior to December 7, 2019, he continued to maintain some meaningful social relationships, despite considerable impairment in some of those relationships. For example, clinical notes dated in November 2019 show that the Veteran reported that he continued to attend a Veterans Group near his home, and that he attended a birthday party several weeks earlier. Although his social contacts were limited, they are not representative of total social impairment. Comparatively, during a December 7, 2019 telemedicine interview with a private physician, the Veteran presented as agitated but with good impulse control, with depressed mood and restricted affect. 12/23/2019 Medical Treatment Record- Non-Government Facility. During that interview the Veteran endorsed suicidal ideation without plan or intent. Id. During a March 2020 VA Examination, the examiner opined that it is more likely than not that the Veteran’s PTSD had worsened and that it is evident that he is unable to work in any environment or in any job that would require concentration, effort, and dependability. The examiner opined that even with sedentary work the Veteran would be unable to expend effort to maintain concentration because he is constantly thinking about his military service and his stressors. Suicidal and homicidal thoughts were noted, and the Veteran’s thought process showed some disturbance. The examiner further opined that Veteran’s mistrust and irritability would make him unreliable and unpredictable. Moreover, the Veteran’s PTSD is insufficiently stable. When coupled with his paranoia towards therapy and medication, the Veteran’s current symptomology does not allow for the assessment of risk toward others. Based upon the December 2019 and March 2020 assessments, it appears to the Board that the Veteran’s PTSD worsened considerably towards the latter part of the appeal period. However, the worsening was not evident or demonstrated until December 7, 2019. As the evidence did not support a finding of both total occupational and social impairment prior to that date, the Board concludes that an increased 100 percent rating is not warranted prior to December 7, 2019. 3. Entitlement to a TDIU prior to April 7, 2017, but no earlier than February 7, 2017 A TDIU may be assigned where the schedular rating is less than total, when the Veteran is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation consistent with his education, training, and work experience as a result of service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Neither the Veteran’s age nor nonservice-connected impairment may be considered. 38 C.F.R. §§ 3.341, 4.16a, 4.19. If there is only one service-connected disability, that disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Here, the Veteran did not meet the schedular rating threshold for TDIU consideration until April 7, 2017 when his combined rating became 70 percent. However, because the Board now finds that the Veteran was entitled to an increased rating of 70 percent for PTSD effective February 7, 2017, he is found to have met the schedular rating threshold as of that date. The Board also finds that the Veteran’s increased PTSD symptoms, which became evident in February 2017, namely his inability to concentrate for more than 30 minutes and nightmares increased to four times per week, left him unable to secure or maintain substantially gainful employment. Therefore, the Veteran is entitled to TDIU as of February 7, 2017, the date in which the evidence of record makes clear that his PTSD symptoms increased. REMANDED ISSUE Entitlement to an extra-schedular TDIU prior to February 7, 2017 is remanded. VA regulations require that all cases where the Veteran is unemployable by reason of service-connected disability but fail to meet the threshold percentage standards for TDIU be forwarded to the Director of Compensation Services for extra-schedular consideration. 38 C.F.R. § 4.16(b). Here, the Veteran contends that he has been unemployable since leaving his job in 2011 due to pulmonary embolism. According to the Veteran, he used his pulmonary embolism as a convenient excuse to remove himself from an environment where he felt he was losing control of reality. See December 23, 2019 Medical Treatment Record- Non-Government Facility. There is also evidence, in June 2011, of the Veteran having been at risk of suspension from work as a train conductor for falling asleep and passing a red light. See October 5, 2015 Medical Treatment Record-Government Facility. The Veteran’s history of sleep disturbances and its impact on his wakefulness while at work are significant factors in his employability as a train conductor, the only employment he has engaged in for over 30 years. Thus, because the evidence indicates that the Veteran's service-connected PTSD may have prevented obtaining or maintaining a substantially gainful occupation prior to February 7, 2017, the Board must remand for referral of the issue of entitlement to an extra-schedular TDIU to the Director of the Compensation Service for adjudication. The matter is REMANDED for the following action: Refer the issue of entitlement to an extraschedular TDIU prior to February 7, 2017, to the Director of Compensation Service for adjudication. Prior to the submission of the claim to the Director, prepare a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue of entitlement to TDIU. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z.Sloley, 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.