Citation Nr: 21010250 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-24 549 DATE: February 24, 2021 ORDER Entitlement to an initial evaluation of 70 percent for posttraumatic stress disorder (PTSD) for the period prior to April 25, 2019 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) for the period prior to April 25, 2019 is granted. FINDINGS OF FACT 1. For the period of appeal prior to April 25, 2019 the Veteran's PTSD was productive of a disability picture that more nearly approximates that of occupational and a social impairment with deficiencies in most areas. 2. For the period of appeal prior to April 25, 2019 the Veteran was unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to April 25, 2019, the criteria for an evaluation of 70 percent for the Veteran’s PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. Prior to April 25, 2019, the criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the US Navy from November 1960 to May 1980. He received the Bronze Star with Combat “V” and Combat Distinguishing Device and Combat Action Ribbon, among other decorations for this service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision from a Regional Office (RO) for the Department of Veterans Affairs (VA). The Veteran originally requested a hearing before a Veterans Law Judge for this appeal but submitted a written withdrawal of his request for a hearing in December 2020. During the course of the appeal, the RO increased the Veteran's disability rating for his PTSD from 30 percent to 70 percent, and granted TDIU, both effective on April 25, 2019. Although, a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, such a claimant may "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law" via "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition." AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). The Veteran, through his attorney, stated that they would find the appeal fully satisfied with a 70 percent rating for the Veteran's PTSD and a grant of TDIU, both effective on the date of the claim, August 30, 2016. See December 2020 Correspondence. Accordingly, as the Veteran has explicitly indicated that he is satisfied with a 70 percent rating effective April 25, 2019, the issue of entitlement to a higher than 70 percent rating from April 25, 2019, is not on appeal and will not be further addressed. See AB v. Brown, 6 Vet. App. 35 (1993). Rather, the issues on appeal as noted on the title page above is entitlement to a rating in excess of 30 percent and to a TDIU for the period prior to April 25, 2019. 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period prior to April 25, 2019. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400 (o)(2). PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). A 30 percent evaluation is warranted where there is 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 conversation normal). This may be due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9411. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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. Id. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. The list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." As mentioned above, the Veteran was granted service connection for PTSD in a January 2017 rating decision, rated at 30 percent effective August 30, 2016, under the provisions of Diagnostic Code 9411. The Veteran asserts that rating does not accurately depict the severity of his condition. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating in excess of 30 percent prior to April 25, 2019 for his PTSD. After careful review, and for the reasons set forth below, the Board finds that, for the period on appeal prior to April 25, 2019, an increased evaluation of 70 percent for the Veteran's service-connected PTSD, is warranted. Throughout the entire period on appeal, the evidence of record reflects that the Veteran's psychiatric symptoms included the following: depressed mood; irritability; chronic sleep impairment; nightmares; flashbacks; avoidance; social isolation; anxiety; hypervigilance; exaggerated startle response; impaired impulse control; and impaired judgment. In August 2016, the Veteran submitted a statement from Mental Health Professionals, LLC. Dr. A.R.S.W. stated that the Veteran secluded himself to living in a boat with his wife and a dog companion as the environment and small space provided calm and comfort to the aftermath of frequent nightmares that triggers vigorous tremors that have decreased his limited social engagement with friends and family. The Veteran show the following symptoms during his diagnostic interview with Dr. A.R.S.W.: irritability, intense fear, chronic symptoms of depression and anxiety, emotional instability-impairment of social and occupational functioning, hypervigilance, avoidance of past traumatic events, places, and people, sleep disturbance, frequent nightmares, high stress, feeling of guilt, skin rash, and occasional poor cognition functioning. A June 2016 private report notes the Veteran experienced symptoms such as restless leg syndrome, nightmares, insomnia, and skin rash. When the Veteran is under stress or relieve the traumatic events, he reported mainly of vigorous tremors, digestive irritability, and nightmares of his own death which impairs his daily routine for at least 2-3 days at a time. An August 2016 letter from Dr. F.H.D., states that the Veteran has not responded to usual treatments for his PTSD and that he is self-medicating with alcohol. Dr. FHD added that the tremors condition, vision loss and PTSD, the Veteran should be considered disabled. The Veteran stated in August 2016 “I have nightmares of suffocating in diesel fuel. I suffer from claustrophobia. I have panic attacks where I fell that I am suffocating and have to get out. The nightmares are the worst.” Private records from September 2016 shows the Veteran was prescribed Prazosin but that worsen his PTSD symptoms and that he has a long standing history of medicating himself at night with multiple alcohol drinks in order to control his nightmares. The Veteran was afforded a VA initial PTSD examination in December 2016. The Veteran reported that he has marry three times, has been with his current wife for 11 years, he does not communicate with his 2 children from first marriage, has a dog that will wake him during nightmares, has a one long-term close friend. His wife reported to the VA examiner that the Veteran gets claustrophobic, “sometimes physical contact is too much for him”, that he yells and flails in his sleep weekly and she has to tell him things that he does not remember. The Veteran reported having intrusive thoughts, does not eat as much as he used to and denied significant issues with anger or irritability. The VA examiner summarized the Veteran’s level of occupational and social impairment as 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. In his July 2017 Supplemental Statement to Notice of Disagreement, the Veteran, through his attorney, stated that he has no friends who he sees on a regular basis, does not trust anyone other than his wife, has had no contact with either of his two children in approximately 10 years, avoids leaving his home as much as possible because he cannot tolerate the stress of being in the presence of other people and has a strained relationship with his wife as a result of his inability to control his anger and irritability, even when they are alone in their own home. Furthermore, he stated that he has impaired impulse control and unprovoked irritability with periods of violence, that he cannot tolerate the stress of adapting to being away from home or the presence of other as this increases his irritability to the point he becomes verbally or even physically aggressive toward others and he avoids leaving his home and being around others as much as possible. The Veteran was afforded a second VA examination for his service-connected PTSD in March 2018. The VA examiner did not find a diagnosis for a mental disorder. The VA examiner noted that the Veteran denied having any friends at present and denied maintaining contact with military or childhood peers, that he reported residing in a “senior community and they have activities”, indicated that he “tried” to engage at first, but “It didn't work out” and that he described his primarily social network as presently consisting of his wife and sister. The examiner noted that the Veteran denied current treatment or history of consistent treatment engagement and that a review of record noted occasional one-time evaluations for the purpose of his C&P claim, but no subsequent follow-up. The Veteran endorsed intrusive thoughts, nightmares, irritability/anger. The VA examiner noted that “[a]lthough the Veteran is assessed to not presently meet full DSM-5 criteria for a personality disorder, he did report a pattern of behavior, inner experience, cognition, difficulties with impulse control, and problematic interpersonal functioning that strongly suggests the presence of maladaptive personality traits. In April 2019 the Veteran submitted a private examination for PTSD. The VA examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The Veteran reported a violent temper and that he isolates most of the day on his screen porch away from his wife. “People irritates me and pissed me off … I just want to be alone… not interact with anyone.” The private examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideations, impaired impulse control, neglect of personal appearance and hygiene. The private examiner opined that the Veteran has had severe difficulty in adapting to stressful circumstances which would include work type settings from August 2016 to the present. In light of the foregoing evidence, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran’s PTSD more nearly approximates an evaluation of 70 percent during the entire period on appeal. The treatment records and psychiatric examinations discussed above reveal that the Veteran's PTSD has been manifested by depressed mood; irritability; chronic sleep impairment; nightmares; flashbacks; avoidance; social isolation; anxiety; hypervigilance; exaggerated startle response; impaired impulse control; and impaired judgment. Some of these symptoms are specifically included in the 70 percent rating criteria under Diagnostic Code 9411 and more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking, and mood. The March 2018 VA examiner classified the Veteran's occupational and social impairment as decrease work efficiency and ability to perform occupational tasks due to mild and transient symptoms. Although this correlates to the 30 percent rating criteria, the Veteran's symptoms, are closely approximated by the 70 percent criteria. In particular, the April 2019 private examiner opined that the Veteran has had severe difficulty in adapting to stressful circumstances which would include work type settings from August 2016 to the present. In sum, the evidence shows that the impact of the Veteran’s symptoms more closely resembles the symptoms listed for a 70 percent rating rather than a 50 percent rating. Therefore, the Board finds that the Veteran's adjustment disorder is closely approximated by the criteria for an initial 70 percent evaluation for the entire appeal period. A review of the record reflects that a rating in excess of 70 percent is not warranted for this period. There is no evidence of total social or occupational impairment that more nearly approximates a 100 percent disability rating, including due to 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; and memory loss for names of close relatives, own occupation, or own name, based on review of treatment records, VA and private examination reports, or the Veteran's lay statements. Objective examinations did not demonstrate he had inappropriate dress and grooming. There is no question the Veteran has severe symptoms; however, these symptoms have never been shown to be so frequent or disabling that the rise to the level of total occupational or social impairment, which is a level of severity so disabling that some of the examples of symptoms include not knowing one's own name or posing a persistent threat of danger to self or others. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) for the period prior to April 25, 2019. A total disability evaluation based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Generally, a total rating for compensation 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 a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran’s service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran’s service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Moore, supra. Factual Background & Analysis The Veteran is currently in receipt of a TDIU effective April 25, 2019. He contends he is entitled to a TDIU prior to that date, as he has not been able to work due to his service-connected disabilities since 2005. The Veteran completed a VA Form 21-8940 in July 2017. The Veteran reported he last worked fulltime in May 2005; his last employment was as a bus driver from March 2005 to May 2005 and previous to that he worked as a crane operator from May 1989 to February 2005. He reported having two years of college education and no additional education or training before he became too disabled to work. The Veteran’s record shows several VA and private examinations throughout the period at issue which provided insight as to how his service-connected disabilities would affect his employment. The June 2016 private examiner found the Veteran’s symptomatology is a negative impact on his life. The December 2016 VA psychiatric examiner noted the Veteran reported that he became a crane operator when he was tired of managing people and he could be by himself in his job as a crane operator. The March 2018 VA examiner opined the Veteran's subclinical psychological symptomology will impact his ability to function in an occupational environment minimally. The Veteran has stated, through his attorney, that he had been unable to follow a substantial gainful occupation since at least August 2005 due to his PTSD symptoms, his inability to control his anger in the presence of supervisors and coworkers or maintain regular attendance. See July 2017 Supplemental Statement to Notice of Disagreement. As previously mentioned, total ratings may be assigned in the first instance by the Board or the RO when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. See 38 C.F.R. § 4.16(a) (2016). Prior to April 25, 2019, service connection was in effect for PTSD at 70 percent, left arm shrapnel wound at 10 percent, tinnitus at 10 percent, bilateral hearing loss, residuals fracture right hand, and scar at noncompensable. As such, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16(a), are satisfied for that period of time. The evidence of record also reasonably establishes that prior to April 25, 2019, the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, particularly his PTSD. See 38 C.F.R. §§ 3.340, 4.16(a). Specifically, he clearly suffered from severe irritability and anger issues which impacted his ability to work with others and caused him to live in virtual social isolation. Accordingly, the Board concludes that the evidence supports a finding that prior to April 25, 2019, the Veteran's service-connected PTSD precluded him from securing or following substantially gainful employment, and that the criteria for establishing entitlement to TDIU are met. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.