Citation Nr: 21010136 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 12-28 636 DATE: February 24, 2021 ORDER Prior to April 14, 2014, an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. From April 14, 2014, a rating of 70 percent, but not higher, for PTSD is granted. From April 14, 2014, but not earlier, a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to April 14, 2014, the Veteran’s PTSD approximated no worse than occupational and social impairment with reduced reliability and productivity. 2. From April 14, 2014, the Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in most areas. Total occupational and social impairment has not been shown. 3. From April 14, 2014, the Veteran’s service-connected PTSD prevents him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to April 14, 2014, the criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. From April 14, 2014, the criteria for a rating of 70 percent. but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9411. 3. From April 14, 2014, but not earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to August 1971. The case is on appeal from August 2011 and June 2016 rating decisions. In April 2014, the Veteran testified at a Board hearing. In May 2014, the claim came before the Board and was remanded for further development. The Veteran’s claim for service connection for PTSD was initially granted by the Regional Office (RO) in the August 2011 rating decision and he was awarded a 30 percent initial rating. The November 2014 rating decision increased his initial psychiatric rating to 50 percent. The January 2016 rating decision increased the rating to 70 percent effective January 7, 2016. Thereafter, the November 2017 rating decision assigned an effective date of November 6, 2015 for the 70 percent rating. The increased rating matters remain in appellate status as the maximum psychiatric rating has not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Prior to November 5, 2015, an initial rating in excess of 50 percent for PTSD. 2. From November 6, 2015, a rating of 70 percent, but not higher, for PTSD. As noted above, the Veteran’s initial claim for service connection for PTSD was granted in the August 2011 rating decision and he was awarded a 30 percent rating effective May 3, 2005. After several increases, the Veteran’s current PTSD ratings are 50 percent from May 3, 2005 to November 5, 2015, and 70 percent thereafter. Thus, the Board will review both appeal periods for any applicable increases. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s PTSD has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9411. A 30 percent rating 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 for PTSD where 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; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Global Assessment of Functioning (GAF) scores are referenced in the records; however, the Board will not consider GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities). 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.” See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Facts Following the Veteran’s May 2005 claim, an October 2008 medical opinion was submitted in which the examiner indicated the Veteran does not possess any transferable skills necessary to perform sedentary work. She stated the Veteran has difficulty sleeping, intrusive thoughts, flashbacks, irritability and impaired concentration. She indicated the Veteran has symptoms of anxiety, memory loss, depression and is hypervigilant with an exaggerates startle response. The examiner noted a GAF score of 45; however, as noted above, GAF scores will not be considered by the Board in determining the severity of the Veteran’s PTSD. See Golden, 29 Vet. App. at 221. A July 2009 lay statement was submitted by the Veteran’s ex-spouse. She indicated the Veteran had long-standing depression, obsessive tendencies and trouble sleeping. The Veteran was afforded a July 2011 VA examination in which he was diagnosed with PTSD and depressive disorder. He denied suicidal and homicidal ideation. The examiner indicated the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He reported the Veteran remains fairly active, but there are moments when his PTSD symptoms cause mild to moderate impairment. The examiner found the Veteran’s memory is impaired with trouble recalling remote memories, as well as current appointments and dates. The examiner noted symptoms of avoidance, sleep trouble, hypervigilance, depression, concentration problems, irritability and fatigue. Following the August 2011 rating decision which granted the 30 percent rating, the Veteran submitted a May 2012 notice of disagreement (NOD) in which he reported his rating should be increased and that he meets the requirements for a 50 percent rating. Thereafter, the Veteran was afforded an April 2014 Board hearing in which he testified that his psychiatric symptoms have worsened since the prior 2011 VA examination. He stated he experiences severe sleep impairment, as well as increased depression and memory problems. He reported he has short and long term memory loss and trouble remembering dates and appointments. The claim was remanded by the Board in May 2014 for further development, including a VA examination. The Veteran was afforded a July 2014 VA examination for his PTSD which showed an increase in severity for his psychiatric symptoms. The examiner determined his PTSD causes occupational and social impairment with reduced reliability and productivity. The examiner indicated the Veteran is divorced and has two adult children, has two siblings with whom he keeps in touch and that he likes to golf with his brother. The Veteran reported that he tends to isolate himself, including taking hunting trips by himself. The examiner reported the Veteran worked for 33 years as a machine operator and union representative, and most of the time worked during the overnight shift to avoid co-workers. He stated the Veteran experiences symptoms of depression, anxiety, chronic sleep impairment, impaired short and long term memory, 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, and suicidal ideation. While the Veteran has suicidal thoughts, he reported he does not intend to act on these thoughts. The Veteran was afforded a January 2016 VA examination in which the examiner stated he has occupational and social impairment with deficiencies in most areas. He reported the Veteran has worsening symptoms, many of which were noted previously. He indicated the Veteran suffers from suspiciousness, chronic sleep impairment, flattened affect, difficulty with work and social relationships, suicidal ideation and an intermittent inability to perform activities of daily living, including the maintenance of minimal personal hygiene. The Veteran underwent an April 2016 VA examination in which the examiner similarly indicated he suffers from occupational and social impairment with deficiencies in most areas. He stated the Veteran’s PTSD causes detachment, diminished interest, as well as near-continuous panic or depression, impairment of short-term and long-term memory, an inability to establish and maintain effective relationships and obsession rituals which interfere with routine activities. The examiner noted he further experiences chronic fatigue, isolation and low energy due to his “fairly severe” PTSD. Additionally, the Veteran submitted a March 2018 statement in which he indicated he has major problems with social relationships due to his PTSD. He stated he stopped working in 2006 due to an inability to exercise proper judgment at work based on his PTSD. He reported he could not accept change in the workplace and had panic attacks around his co-workers and thus, was forced to stop working. Analysis After a careful review of the evidence, the Board finds that an increased rating to 70 percent for the Veteran’s PTSD is warranted from April 14, 2014, the date of the Board hearing. From this date, the Veteran’s PTSD symptoms most closely approximate occupational and social impairment with deficiencies in most areas and a 70 percent rating. See 38 C.F.R. § 4.7. The medical and lay evidence supports that the Veteran’s PTSD symptoms worsened in April 2014, to include suicidal thoughts, as shown in the July 2014 and January 2016 VA examinations. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (noting the importance of suicidal ideation in the criteria for a 70 percent rating). However, prior to April 14, 2014, the Board determines an initial rating in excess of 50 percent for his PTSD is not warranted. Moreover, the criteria for a 100 percent PTSD rating is not supported at any point during the appeal period. Prior to April 14, 2014, the evidence shows that the Veteran’s PTSD approximated at most occupational and social impairment with reduced reliability and productivity and the current 50 percent rating. The October 2008 and July 2011 medical opinions indicated symptoms of difficulty sleeping, intrusive thoughts, irritability, anxiety, depression and impaired concentration. The Board notes the Veteran denied suicidal ideation during this period. Additionally, the July 2011 VA examiner stated the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This conclusion supports a less severe disability. Thus, the evidence overall shows that an initial rating in excess of 50 percent is not warranted prior to April 14, 2014. From the April 2014 Board hearing, the Veteran’s psychiatric symptoms increased in severity and approximate occupational and social impairment with deficiencies in most areas and a 70 percent rating. Following the Board hearing, the Veteran was afforded a July 2014 VA examination, along with two other later VA examinations, which confirm more severe symptoms. The examiners indicated additional psychiatric symptoms, such as difficulty in establishing and maintaining relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, suicidal ideation and an intermittent inability to perform activities of daily living, including the maintenance of minimal personal hygiene. Therefore, based on the examination results, and when affording all reasonable doubt in the Veteran’s favor, the Board finds a 70 percent rating is warranted from April 14, 2014, the date of the hearing. See 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 and not necessarily when the evidence is created). The Board notes the April 2014 Board hearing is the earliest date a factually ascertainable increase occurred. While an increased rating to 70 percent is warranted from April 14, 2014, a further increase to 100 percent for total occupational and social impairment is not warranted at any time during the appeal period. The Board acknowledges the severity of the Veteran’s PTSD symptoms. However, the evidence does not support that his PTSD causes total social impairment. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a persistent threat of danger to others, gross impairment in thought processes or communication, not knowing one’s own name, the names of close relatives, or one’s occupation, as well as hallucinations, delusions and illogical, obscure, or irrelevant speech. The Board finds the Veteran has not exhibited such symptoms. Furthermore, the evidence shows the Veteran was married for 28 years, has three siblings with whom he keeps in touch, two children with whom he has good relationships, and that he partakes in hobbies, such as hunting and golfing. As such, total social impairment, which is required for a 100 percent rating, is not shown. Therefore, after resolving reasonable doubt in the Veteran’s favor, the Board finds his PTSD symptoms warrant a rating of 70 percent, but not higher, from April 14, 2014. However, an initial rating in excess of 50 percent for PTSD is not warranted prior to April 14, 2014 and a 100 percent rating is not supported during the appeal period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The preponderance of the evidence is against further rating increases above those already assigned. 3. TDIU The Veteran contends his service-connected PTSD prevents all substantially gainful employment. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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 can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Facts The Veteran submitted a February 2016 application for a TDIU based on his PTSD. He reported that the date his disability affected his full-time employment was January 2006 and the date he last worked full-time was August 2006. He indicated he worked for 33 years as a machine operator and his education included obtaining a GED and one year of college. Prior to his application for a TDIU, the October 2008 medical opinion indicated the Veteran does not possess any transferable skills necessary to perform sedentary work. She stated the Veteran has symptoms of difficulty sleeping, intrusive thoughts, irritability, impaired concentration, as well as anxiety and depression. During the July 2011 VA examination, the examiner indicated the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He reported the Veteran remains fairly active, but there are moments when his PTSD symptoms cause mild to moderate impairment. The examiner found the Veteran’s memory is impaired, along with symptoms of sleep trouble, hypervigilance, depression, concentration problems and irritability. He opined the Veteran remains employable. As noted, the Veteran was afforded an April 2014 Board hearing in which he testified that his psychiatric symptoms have worsened. He stated he experiences severe sleep impairment, increased depression, memory problems, including impaired short and long term memory loss, with trouble remembering dates and appointments. Thereafter, the July 2014 VA examiner determined the Veteran’s PTSD causes occupational and social impairment with reduced reliability and productivity. The examiner indicated the Veteran is divorced and has two adult children. He noted the Veteran has two siblings with whom he keeps in touch and that he likes to golf with his brother. The examiner reported the Veteran worked for 33 years as a machine operator and union representative, and most of the time he worked during the overnight shift to avoid co-workers. He stated the Veteran experiences symptoms of depression, anxiety, mild memory loss, disturbances of motivation and mood, difficulty with relationships, difficulty adapting to stressful circumstances and suicidal ideation. The January 2016 VA examiner stated he has occupational and social impairment with deficiencies in most areas. He reported the Veteran has worsening symptoms, including suspiciousness, chronic sleep impairment, difficulty with work and social relationships, suicidal ideation and an intermittent inability to perform activities of daily living, including the maintenance of minimal personal hygiene. Following the Veteran’s February 2016 claim for a TDIU, he underwent another April 2016 VA PTSD examination in which the examiner similarly indicated he suffers from occupational and social impairment with deficiencies in most areas. He stated the Veteran’s PTSD causes avoidance, detachment and diminished interest, as well as near-continuous panic or depression, impairment of short-term and long-term memory, an inability to establish and maintain effective relationships and obsession rituals which interfere with routine activities. Additionally, the Veteran submitted a March 2018 statement in which he indicated he has major problems with social relationships due to his PTSD. He stated he stopped working in 2006 due to an inability to exercise proper judgment at work based on his PTSD. He reported he could not accept change in the workplace and had panic attacks around his co-workers, and thus, was forced to stop working. Analysis The Board finds that the evidence has reached a level of equipoise and the Veteran’s service-connected PTSD precludes him from securing or following a substantially gainful occupation, from April 14, 2014. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s PTSD was moderate throughout the appeal period and then worsened, as suggested in the April 2014 hearing, July 2014 VA examination and the subsequent VA examination reports. More severe psychiatric symptoms were indicated, including depression, anxiety, chronic sleep impairment, impaired short and long term memory, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. Moreover, the examiners found symptoms of difficulty adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and an intermittent inability to perform activities of daily living, including the maintenance of minimal personal hygiene. As such, the medical evidence supports the Veteran’s PTSD has prevented all substantially gainful employment from the April 2014 Board hearing. While the Veteran suffered severe PTSD symptoms throughout the entire appeal period, he was not prevented from all substantially gainful employment until April 14, 2014. Prior to that date, the medical evidence shows the Veteran’s PTSD was less severe and caused no worse than moderate impairment, including occupationally. Moreover, the July 2011 VA examiner indicated the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He reported the Veteran’s PTSD causes mild to moderate impairment and that the Veteran remains employable. The Board notes the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) have been met since April 14, 2014, based on the current decision, as the Veteran’s PTSD is rated as 70 percent disabling from that date. 38 C.F.R. § 4.16(a). The Veteran also meets the economic component of entitlement to a TDIU by virtue of not working during the appeal period. Ray, 31 Vet. App. at 73. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD precludes his ability to secure and maintain substantially gainful employment from April 14, 2014, but not earlier. 38 C.F.R. § 4.16(a). Accordingly, from April 14, 2014, entitlement to a TDIU is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.