Citation Nr: 21008479 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-15 659 DATE: February 17, 2021 ORDER Prior to July 11, 2019, entitlement to an initial disability rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. From July 11, 2019, entitlement to a disability rating of 70 percent, but no higher, for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. From July 11, 2019, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Prior to July 11, 2019, the Veteran’s service-connected PTSD symptoms have more nearly approximated occupational and social impairment with reduced reliability and productivity; symptoms of occupational and social impairment, with deficiencies in most areas, have not been demonstrated. 2. From July 11, 2019, the Veteran’s service-connected PTSD symptoms have more nearly approximated occupational and social impairment, with deficiencies in most areas; symptoms of total occupational and social impairment have not been demonstrated. 3. From July 11, 2019, the Veteran’s service-connected PTSD precludes him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial rating of 50 percent, but no higher, for PTSD, prior to July 11, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. 2. Resolving all reasonable doubt in favor of the Veteran, from July 11, 2019, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. 3. From July 11, 2019, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities (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 on active duty from February 1974 to September 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claim for entitlement to an increased rating for posttraumatic stress disorder (PTSD) was denied by the Board in an October 2018 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Remand (JMR) filed by the Veteran and VA’s Office of the General Counsel and remanded the matter for action consistent with the terms of the JMR. This case was most recently before the Board in November 2019 when it was remanded for additional development. It has returned for adjudication. During the pendency of the appeal regarding his posttraumatic stress disorder disability rating, the evidence suggested that the disability impaired the Veteran’s ability to work. Thus, the issue of TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) The Veteran contends that an increased rating is warranted for his service-connected PTSD. 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. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is currently rated 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Mental disorders, including PTSD, are rated pursuant to the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 30 percent evaluation is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent evaluation is warranted when there is 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is indicated where there is 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. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). 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. See 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. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s PTSD warrants an initial disability rating of 50 percent prior to July 11, 2019 and a 70 percent disability rating thereafter. Prior to July 11, 2019 Turning to the evidence of record, the Veteran submitted a letter dated in July 2013 from his private physician, Dr. E.H., noting that the Veteran was treated for PTSD. At that time, the Veteran was married for 32 years and was employed as an automotive instructor for the previous 8 years. He endorsed nightmares 1 or 2 times per week which would cause him to wake in a panic and sweat for at least 60 minutes. He also had flashbacks and panic attacks 1 to 3 times per month, lasting at least 1 hour. The Veteran indicated he had intrusive thoughts, startled easily, was hypervigilant, and did not socialize. His recent memory was described as “severely impaired” and his working memory was 20 percent impaired. He was angry, sad, and fearful more than half of the time. The Veteran further had auditory and visual hallucinations and illusions weekly and stated that he agitated easily. Dr. E.H. found that the Veteran was “unable to sustain social relationships” and was “mildly compromised in his ability to sustain work relationships.” The Veteran was afforded a VA examination in August 2014. At that time, the examiner found the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran reported that he did not have a relationship with either of his 2 sisters. He was married for 24 years and had 2 grown children. He was employed teaching mechanics at a community college for the previous 10 years and was working full-time. He indicated he enjoyed his job, as it kept him very busy and keeps him in touch with military personnel, who frequently enrolled in his course. The Veteran began mental health treatment in 2013 and was prescribed medication for control of his symptoms. He denied violent behavior, panic attacks, suicidal thoughts, or suicide attempts. The Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work and a worklike setting. The examiner noted that the Veteran was appropriately dressed and groomed and he was pleasant and cooperative. His mood was depressed with a restricted affect. His speech was normal and his thoughts were organized and logical. There was no evidence of psychosis and he denied suicidal and homicidal thoughts. The Veteran had recurrent recollections when triggered but noted that his nightmares stopped with his medication. He did not socialize often and was hypervigilant. While he was able to focus, it took a great deal of effort and he had to reread things. He was getting about 5 hours of sleep at night without medications but was able to get up to 8 hours with his medication. The Veteran submitted his treatment records from Dr. E.H. including records from August 2014. At that time, the Veteran had high anxiety and endorsed occasional flashbacks and visual hallucinations. The Veteran submitted an additional correspondence from Dr. E.H. dated in March 2016. At that time, the Veteran was married for 35 years and was still employed. He continued to have nightmares at least 1 time a month and had flashbacks and panic attacks 1 to 2 times per week. The Veteran had intrusive thoughts, startled easily, was hypervigilant, and did not socialize. His recent memory was described as “moderately impaired” and his working memory was 50 percent impaired. He noted that he was angry, sad, and fearful about half of the time. He was depressed with low energy and little interest in things and he angered and agitated easily. Dr. E.H. stated that the Veteran’s PTSD rendered him unable to sustain social relationships and made him moderately compromised in his ability to sustain work relationships. After a review of the above, the Board finds that prior to July 11, 2019, the Veteran’s PTSD symptomatology is more closely approximated by the criteria for a 50 percent disability rating. Notably, the record indicates that throughout this period, Veteran endorsed panic attacks more than weekly, impairment of short-term memory, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. However, he continued to be employed as a teacher and was in a long-term marriage. Indeed, the Veteran even reported that he enjoyed his employment because he was able to connect with other military personnel, weighing against finding an inability to establish social relationships. Further, while there is some evidence that the Veteran struggled with adapting to stressful circumstances and hypervigilance, there is no evidence that the Veteran was unable to function independently, that he was violent, or that he neglected his personal appearance and hygiene during this period. Overall, the Board finds that the Veteran’s symptoms are more nearly approximated by occupational and social impairment with reduced reliability and productivity. Accordingly, a 50 percent disability rating, but no higher, is warranted for the Veteran’s service-connected PTSD prior to July 11, 2019. From July 11, 2019 Correspondence dated on July 11, 2019 from Dr. E.H. noted that the Veteran had been married for 41 years and continued to teach automotive mechanics. He had nightmares at least 1 to 2 times per week and had flashbacks and panic attacks 2 to 3 times per week. The Veteran had intrusive thoughts, startled easily, was hypervigilant, and did not socialize with family or friends. His recent memory was described as “severely impaired” and his working memory was 80 percent impaired. He noted that he was angry, sad, and fearful 90 percent of the time. He had auditory and visual hallucinations and illusions. The Veteran was depressed most of the time with low energy and little interest in things. He angered and agitated easily, notably feeling helpless and suicidal at times. Dr. E.H. stated that the Veteran’s PTSD rendered him unable to sustain social relationships and barely able to sustain work relationships. Dr. E.H. considered the Veteran “permanently and totally disabled and unemployable.” Dr. E.H. completed a Disability Benefits Questionnaire in August 2019 wherein he found the Veteran’s PTSD caused total occupational and social impairment. Dr. E.H. stated that the Veteran had been married 35 years and stopped working in July 2019 related to his PTSD symptoms becoming overwhelming at work. The Veteran’s symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and persistent delusions or hallucinations. Dr. E.H. found the Veteran capable of managing his financial affairs. The Veteran submitted buddy statements dated in September 2020 from his spouse and others who noted that he was constantly repeating himself, had trouble with his memory, and was compulsive about his routine. The Veteran’s spouse specifically noted that the Veteran’s symptoms had worsened to the point that he stopped working the previous year. He was regularly paranoid and angry. A statement from the Veteran indicated that he was taking medication to prevent hallucinations and to help him sleep. He continued to endorse anger and depression that he noted was minimized with the medication. The Veteran stated that his wife helped to keep him grounded when things got to be too much. After a review of the record, the Board finds that the symptoms of the Veteran’s service-connected PTSD are more nearly approximated by the criteria for a 70 percent disability rating from July 11, 2019. From this time, the Veteran’s private treatment records indicate an increase in symptomatology, including worsening memory, increased depression, and the onset of suicidal ideation. The Veteran ended his employment in July 2019 related to his symptomatology and the buddy statements note that the Veteran was increasingly compulsive, paranoid, and angry. As such, the Board finds the Veteran’s symptoms are more nearly approximated by occupational and social impairment with deficiencies in most areas. However, while Dr. E.H. noted that the Veteran had persistent delusions and hallucinations, at no time during the appeal period was the Veteran noted to be in persistent danger of hurting himself or others, disoriented to time or place, or unable to maintain minimal personal hygiene. The Veteran even continued to maintain his spouse who he identified as keeping him “grounded” when things got to be too much. Such weighs against finding total social impairment during this time. The Board acknowledges the Veteran’s contention regarding his prescribed treatment for PTSD that minimizes his symptoms. While the Veteran believes the Board should not consider the ameliorative effects of medication when evaluating his PTSD, the plain language of the criteria for a 10 percent rating under the General Formula specifically contemplates the effects of medication. Consequently, Jones v. Shinseki, 26 Vet. App. 56 (2012) does not apply, and the Board’s evaluation of the Veteran’s PTSD may consider the level of disability after relief from medication. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). Accordingly, from July 11, 2019, resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that the symptoms of the Veteran’s PTSD have more nearly approximated the criteria for a 70 percent rating. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall 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. 38 C.F.R. § 4.16(a). In determining whether a Veteran is entitled to a total disability rating based on individual unemployability, neither the Veteran’s nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran’s education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). After application of the above increased rating for service-connected PTSD, the Veteran meets the schedular criteria for a TDIU from July 11, 2019. From this time, he has a combined disability rating of 80 percent, as his PTSD is rated 70 percent disabling, tinnitus is rated 10 percent disabling, and a right foot disability is rated 10 percent disabling. The Board notes that prior to this time, the Veteran was employed full time. Additionally, there is no evidence indicating that his teaching position was marginal or that he worked in a protected environment. 38 C.F.R. § 4.16. As such, the Board will consider entitlement to a TDIU from July 11, 2019. As noted above, from July 11, 2019, the Veteran’s PTSD is found to result in occupational and social impairment with deficiencies in most areas, including work and family relations. The Veteran was specifically found to have difficulty adapting in stressful circumstances and to have increased paranoia and anger and his spouse noticed worsening symptoms in 2019. The Veteran himself noted that his symptomatology made it difficult for him to continue to work in his position as a teacher. Further, Dr. E.H. found that the Veteran was unable to work related to his PTSD symptomatology on the August 2019 DBQ. The Board finds Dr. E.H.’s opinion highly probative as to the Veteran’s ability to work and concludes that TDIU compensation is warranted from July 11, 2019. See 38 C.F.R. § 4.16. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Connor, Lindsey 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.