Citation Nr: 21009707 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-19 008 DATE: February 23, 2021 ORDER Entitlement to a 70 percent disability rating, but no higher, since February 24, 2017 and a 50 percent disability rating prior to then, for service-connected posttraumatic stress disorder (PTSD), is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from February 24, 2017. FINDINGS OF FACT 1. Since February 24, 2017, the severity, frequency, and duration of the Veteran’s symptoms more closely approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. 2. Prior to February 24, 2017, the severity, frequency, and duration of the Veteran’s symptoms more closely approximated occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. 3. Since February 24, 2017 the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. Since February 24, 2017, the criteria for a disability rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 2. Prior to February 24, 2017, the criteria for a disability rating of 50 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. Since February 24, 2017, the criteria for a total disability based on individual unemployability are met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1966 to June 1969, with service in Vietnam. In February 2018, the Veteran testified at a Travel Board Hearing in St. Petersburg, Florida before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This appeal was previously before the Board in March 2020 when it was remanded to obtain a VA examination. The examination having been provided; the Board finds substantial compliance with the remand directive. Stegall v. West, 11 Vet. App. 268 (1998). As such, the appeal is ready for appellate review. Of note, in August 2020, the Agency of Original Jurisdiction (AOJ) issued a rating decision granting a 70 percent disability rating for the Veteran’s PTSD, effective April 24, 2020, and granted TDIU, effective April 24, 2020. However, as that decision did not address the period on appeal prior to April 24, 2020, those issues remain on appeal and are decided herein. 1. Entitlement to a 70 percent disability rating, but no higher, since February 24, 2017 and a 50 percent disability rating prior to then, for service-connected posttraumatic stress disorder (PTSD), is granted. Disability evaluations are 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders. In pertinent part, a 50 percent 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 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 worklike setting); and 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 process 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. 38 C.F.R. § 4.130, DC 9411. In evaluating symptoms and signs to determine their effect on the level of occupational and social impairment in order to arrive at an appropriate disability rating, the Board will look to their severity, frequency and duration; consider their impact as a whole; and make a quantitative assessment accordingly. See Bankhead v. Shulkin, 10 Vet. App. 26; see also Vazquez-Claudio, 713 F.3d at 115-17; see generally Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990); Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board notes that in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court of Appeals for Veterans Claims (Court) held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, which meets the criteria for a 70 percent disability rating under 38 C.F.R. § 4.130. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted above, the AOJ increased the Veteran’s PTSD rating from 50 percent disabling to 70 percent disabling, effective April 24, 2020. The Board finds that the Veteran’s PTSD symptomology show that a 70 percent disability rating is warranted from February 24, 2017, when the medical evidence shows that the Veteran’s PTSD symptomology included suicidal ideation. Turning to the probative evidence of record, in April 2020, the Veteran was afforded a VA PTSD examination. The examiner noted the Veteran’s occupational and social impairment was deficient in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran’s symptoms were reported as: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; suicidal ideation; and neglect of personal appearance and hygiene. Recent treatment records report that he has difficulty with sleep, nightmares, and experiences daytime sleepiness. His mood was assessed as both anxious and depressive; his affect was congruent with both situation and topic; there was no assessed intent or plan of harm to self or others; his speech was spontaneous and effective; his thought appeared linear, concrete and future-oriented. See Mental Health Program Individual Note, February 2020. In the February 2018 Hearing, the Veteran testified that he constantly experiences nightmares and flashbacks. He described seeing and hearing things from his time in Vietnam; he testified that he experiences hypervigilance. He denied having thoughts of hurting himself or others. The Veteran attended a telehealth PTSD evaluation in February 2017. The examiner reported the Veteran’s complaints of nightmares, sleep disturbances, and avoidance. The examiner noted that the Veteran “reported occasional SI [suicidal ideation] in which he wonders if he would be better off dead, with vague method…and noted his SI is related to his distress stemming from nightmares.” The Veteran’s mental status during the examination was noted as: adequate appearance/grooming; fair eye contact; WNL [within normal limits] orientation; WNL attention/concentration; WNL memory; WNL speech; thought processes somewhat circumstantial; observed mood: irritable and dysphoric; affect: flat; judgment and insight: fair; delusions/hallucinations: did not evidence. The Veteran attended a VA PTSD examination in April 2014. The examiner noted the Veteran’s occupational and social impairment 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 examiner noted that the previous examination in July 2012 showed “impairment more in the severe range.” The PTSD symptoms were reported as suspiciousness; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the Veteran was well groomed, was able to sit still in interview chair, occasionally smiled and laughed appropriately; had logical, coherent, and goal-directed thought, and his speech was non-pressured. The Veteran’s representative submitted a Statement in Support of Claim in November 2012. He noted that the Veteran’s PTSD symptoms continued to worsen and described them as “more frequent altercations that have neared violence,” as well diminished concentration and short-tempered. He described the Veteran as lethargic and unmotivated to even get out of bed. He stated that the Veteran “finds himself growing more and more apprehensive of going out in public particularly where there are any crowds. He no longer does his own shopping…” The same representative submitted the Notice of Disagreement and noted that the Veteran could not handle stressful situations well; he nearly punched an emergency room doctor while seeking treatment; and that his wife is his only friend. In the July 2012 VA PTSD examination, the examiner noted the Veteran’s occupational and social impairment as reduced reliability and productivity. The Veteran’s PTSD symptoms were reported as depressed mood; anxiety; chronic sleep impairment; mild memory loss; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks. The Veteran attended a VA Initial PTSD examination in September 2010. The examiner diagnosed the Veteran with PTSD, mild, chronic. Under Frequency, Severity and Duration of PTSD Symptoms Found, the examiner reported, “Veteran has never been severely disabled by his PTSD symptoms. They were worse when he first returned home. Now he experiences hypervigilance, startle response, nightmares, sleep disturbance, and some social avoidance. He has some psychic numbing. He believes he experiences hallucinations of seeing/hearing rockets coming toward the house.” Under Examination Results the Veteran was reported as clean, neatly groomed, appropriately dressed; unremarkable psychomotor activity; unremarkable speech; cooperative, friendly attitude toward examiner; normal affect; attention intact; oriented to person, time, and place; unremarkable thought process; unremarkable thought content; no delusions; for judgment - understands outcome of behavior; for insight – understands that he has a problem; average intelligence; sleep impaired (described as trouble sleeping because of flashbacks of rocket attacks); no hallucinations; no inappropriate behavior; interprets proverbs correctly; no obsessive/ritualistic behavior; no panic attacks; no homicidal thoughts; no suicidal thoughts; good impulse control; able to maintain personal hygiene; and no problems with activities of daily living. His remote, recent, and immediate memory was assessed as normal. In analyzing the probative evidence of record as outlined above, the Board finds that the frequency, severity, and duration of the Veteran’s PTSD symptoms most closely approximates the 70 percent disability rating since February 2017. The Board notes that the evidence shows the Veteran has had suicidal ideation and disturbances of mood and motivation, as well as an inability to establish and maintain effective relationships and some impaired impulse control. The Board notes that the severe symptomology of suicidal ideation in itself shows occupational and social impairment, with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, the Board finds that the Veteran’s PTSD symptoms do not approximate a total disability rating as the medical and lay evidence of record does not show such symptoms as: gross impairment in thought process 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. The Board observes that the Veteran has intermittently complained of seeing or hearing things from Vietnam, however, the evidence does not show persistent delusions or hallucination. In addition, although the records show that the Veteran has expressed suicidal ideation, it has been intermittent and not persistent. 38 C.F.R. § 4.130, DC 9411. Prior to February 2017, the probative medical evidence of record shows that the frequency, severity, and duration of the Veteran’s PTSD symptoms most closely approximates the 50 percent disability rating as his symptoms were noted as impairment of memory; disturbances of motivation and mood, described as depression and lethargy, and difficulty in establishing and maintaining effective work and social relationships, noted as keeping to himself and relying on his spouse; he was described as “generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” During this period, the evidence does not show symptoms as such 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); and inability to establish and maintain effective relationships. Indeed, the Veteran described his marriage and his relationships with his grown children as good, noted that he nearly became violent only when provoked in an emergency room setting, and reported no other symptoms to meet the criteria of a 70 percent disability rating in his VA examinations or treatment records. Accordingly, the Board finds that the Veteran’s PTSD symptoms warrant a 70 percent disability rating, but no higher, since February 24, 2017 and a 50 percent disability rating, but no higher, prior to then. 38 C.F.R. § 4.130, DC 9411. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from February 24, 2017. The Veteran asserts that his service-connected disabilities have prevented him from gainful employment. In his June 2019 Application for Increased Compensation Based on Unemployability, the Veteran reported that he was self-employed doing maintenance at Suburban Adult Services. In his Notice of Disagreement, the Veteran stated that due to service-connected disabilities, primarily PTSD, he is not able to work. Of note, the Veteran was granted TDIU in an August 2020 Rating Decision, effective April 24, 2020. As seen below, the Board finds that a TDIU is warranted from February 24, 2017. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions as well as those of private medical professionals or vocational experts are not dispositive. However, the observations of these professionals may provide probative evidence as to a veteran's ability to obtain and maintain employment consistent with his or her education and experience. Since February 24, 2017, the Veteran is service-connected for PTSD at 70 percent disabling, and Diabetes Mellitus, type II at 20 percent disabling. As such, the Veteran meets the schedular criteria for entitlement to TDIU. Of note, prior to February 24, 2017, the Veteran’s service-connected disabilities do not meet the schedular criteria for TDIU. 38 C.F.R. § 4.16. The Board observes that the Veteran has a High School education, has not had a job for longer than five years, and was primarily self-employed, as he “has preferred to work for himself.” He related that in past jobs he, “couldn’t get along with other people…so I quit.” See Psychological Assessment, February 2017. In the April 2020 examination, the examiner concluded that his PTSD symptoms “have had recurring negative impact on his functioning.” The examiner noted the Veteran’s deficiencies in task completion, social interaction and conflict and ability to learn new skills. He noted the Veteran’s disrupted focus and hypervigilance would cause him trouble in completing tasks with multiple steps or analytical reasoning. He noted that there would likely be reliability and performance issues due to the Veteran’s fatigue and difficulty with concentration due to his disrupted sleep. The Board notes that in his recent PTSD examinations, the examiners have described his occupational functioning as limited or poor due to his decreased ability to concentrate and his poor social interactions, as evidenced by his short-temper or hot-headedness. Based on the foregoing, the Board finds that the probative evidence of record shows that the combination of the Veteran’s service-connected PTSD and Diabetes Mellitus symptoms preclude him from securing or following gainful employment since February 24, 2017. Accordingly, a TDIU is warranted since then. Regarding the period on appeal prior to February 24, 2017, while the Board does not doubt that the Veteran’s disabilities had an effect on his employability, the weight of the evidence does not support his contention that his service-connected disabilities were of such severity to preclude his participation in any form of substantially gainful employment based on his occupational background and level of education. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (for a veteran to prevail on a claim for TDIU, it is necessary that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability). In the April 2014 VA examination, the Veteran reported that he “considers himself retired from working. He last worked full-time as a maintenance supervisor where he worked for 5 years. [He] spends his time now restoring older model cars and repairing radios.” The Veteran did not relate that his service-connected disabilities required him to retire or prevented him from working, nor does the probative medical evidence of record show this. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.