Citation Nr: 21010406 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-13 522 DATE: February 24, 2021 ORDER A disability rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD) effective February 21, 2011 is granted. An initial disability rating greater than 50 percent prior to February 21, 2011 for PTSD is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted effective August 1, 2010. FINDINGS OF FACT 1. Prior to February 21, 2011, the Veteran’s PTSD was manifested by symptoms of irritability, sleeping difficulties, hypervigilance, impaired impulse control, and depressed mood that resulted in occupational and social impairment, with reduced reliability and productivity. However, during this period, symptoms of occupational and social impairment deficiency in most areas such as work, school, family, relations, judgment, thinking, and mood were not demonstrated. 2. For the period beginning February 21, 2011, the Veteran’s service-connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas such as family relations, and mood, due to such symptoms as depression, impaired impulse control, sleep impairment and difficulty in adapting to stressful circumstances including work or work like settings as well as an inability to establish and maintain effective relationships. Total occupational and social impairment was not shown. 3. Resolving all reasonable doubt in the Veteran’s favor, he has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities since August 1, 2010. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, and no higher, for the Veteran’s PTSD effective February 21, 2011 have been 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. The criteria for an initial disability rating greater than 50 percent for the Veteran’s PTSD prior to February 21, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The criteria for a TDIU have been met since August 1, 2010. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from May 1968 to December 1969 and is in receipt of the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which, in pertinent part, granted service connection for anxiety disorder and assigned an initial 10 percent rating, effective February 9, 2009. The Veteran disagreed with this decision and perfected this appeal. Subsequently, by rating decision dated in October 2016 rating decision, the RO increased the initial rating for the Veteran’s service-connected psychiatric disability, recharacterized as PTSD, to 50 percent effective February 9, 2009, and to 70 percent from June 6, 2016. In June 2019, the Board denied higher disability ratings for the Veteran’s PTSD, both prior to and beginning June 6, 2016, and also denied a TDIU.  The Veteran appealed the Board’s June 2019 decision to the United States Court of Appeals for Veterans Claims (Court).  In July 2020, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion), in which both parties to the Joint Motion requested that the Court vacate and remand the Board’s June 2019 decision regarding the denial of an initial disability rating higher than 50 percent for the Veteran’s PTSD prior to June 6, 2016 and the denial of a TDIU. The June 2019 Board decision denying a disability rating higher than 70 percent beginning June 6, 2016 was not disturbed. With regard to the TDIU issue, while the Veteran did not perfect an appeal of an April 2012 rating decision which denied a TDIU, a review of the record shows that the Veteran last worked full-time in August 2010 due, at least in part, to his service-connected disabilities. As such, the Board has taken jurisdiction of this issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel of his claim for a higher rating for his PTSD. 1. A disability rating of 70 percent, and no higher, for PTSD effective February 21, 2011 is granted; an initial disability rating greater than 50 percent prior to February 21, 2011 for PTSD is denied. Disability ratings are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities.  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 service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  In rating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993).  Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3. As above, the Veteran’s PTSD disability rating has been staged, meaning from February 9, 2009 to June 5, 2016, it is rated as 50 percent disabling; and from June 6, 2016 to the present, it is rated as 70 percent disabling. However, the only time period presently before the Board is from February 9, 2009 to June 5, 2016. The Veteran’s PTSD is rated under DC 9411.  Pursuant to DC 9411, a 50 percent rating is assigned 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; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  A 70 percent rating is assigned when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships.  A 100 percent rating is assigned if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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.  38 C.F.R. § 4.71a, DC 9434, General Rating Formula for Mental Disorders.  The nomenclature employed in the portion of VA’s Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV).  38 C.F.R. § 4.130.  DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between 0 and 100, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. VA changed its regulations and requires the use of DSM-5, effective August 4, 2014.  Among the changes, DSM-5 eliminates the use of the GAF score in the evaluation of psychiatric disorders.  The change was made applicable to cases certified to the Board on or after August 4, 2014, and is not applicable to cases certified to the Board prior to that date.  As this case was certified to the Board after August 4, 2014, GAF scores will not be used in the evaluation of the psychiatric disorder.  Symptoms listed in VA’s general rating formula for mental disorders 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.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered.  In addition, the rating must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.  Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but a rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126.  Evidence relevant to the level of severity of the Veteran’s PTSD from February 9, 2009 to June 5, 2016 includes VA psychiatric examination reports dated in May 2009 and January 2014 as well as VA and private treatment records dated through June 2016. The May 2009 VA psychiatric examination report shows that the Veteran was diagnosed with anxiety disorder (subclinical PTSD) as well as adjustment disorder. At that time, it was noted that the Veteran had been married twice and, together with his current wife, had 6 children and 14 grandchildren. It was also noted that the Veteran worked full-time at an aluminum plant, both operating machinery and working as a supervisor. The Veteran reported that his psychiatric symptoms began two years earlier, following the onset of medical problems, particularly eye disabilities. His psychiatric symptoms included depression, social withdrawal, sleep impairment, and poor appetite, with periods of symptoms lasting up to one week. The Veteran’s wife reported that his mood would change and would become angry quickly. He denied symptoms of mania or psychosis. The Veteran described his relationship with his wife as “good” and reported that he and his wife got along well with all 6 of their children. He reported spending time with his family often, to include grandchildren. He also reported having relationships through his work and would regularly go fishing or to basketball games, and reported no trouble forming and maintaining friendships. His hobbies included fishing and being outdoors. No history of suicide attempts or history of assaultive behavior were noted. The Veteran reported generally good functioning with close family relationships, friendships, and successfully working for 29 years in an aluminum plant. Psychiatric examination showed that the Veteran was neatly groomed; psychomotor activity was normal; speech was unremarkable; attitude was cooperative; affect was normal; mood was depressed; attention was intact; orientation was intact to all spheres; though process was normal; judgement was good; intelligence average; and insight good. A sleep impairment was noted as he had difficulty falling asleep. Five hours of sleep per night were reported. No hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, or homicidal/suicidal thoughts were noted. No episodes of violence were noted. Recent and immediate memory was noted as mildly impaired. The Veteran reported missing one day of work in the last 12-months due to medical appointments. The examiner evaluated the Veteran’s occupational and social impairment as an occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning. The examiner noted that the Veteran had good functioning with occasional decreases in work performance and social interactions during periods of stress with a quick return to baseline following these periods. VA treatment records dated from August through October 2010 show mild and moderate depression. A February 2011 private psychological assessment report from Dr. W.C. shows diagnoses of PTSD, major depressive disorder, dysthymic disorder, and generalized anxiety disorder. At that time, the Veteran reported experiencing anxiety and depression which limited him socially and caused conflict with his family. The Veteran reported being married for 24 years and was satisfied with the relationship but also reported that emotional issues did interfere with their relationship. He reported having three adult children from a previous marriage. He considered his family a source of help. The Veteran reported that he had worked for 30 year at an aluminum plant and was forced to retire due to macular degeneration (eye condition) as he was unable to view the computer screens. The Veteran reported some stress from demands at his job but never received a warning, reprimand, or suspension. When he was working, he was usually on time and a did what was expected of him. The Veteran avoided and made significant attempts to avoid thoughts, feelings, or conversations associated with combat experiences. He had symptoms of hyperarousal, difficulty concentrating, irritability, outburst of anger, hypervigilance, and exaggerated startle response. Depression was manifested with frequent sadness, depressed mood, loss on interest in pleasure and hobbies. No suicidal ideations were reported. Significantly, Dr. W.C. noted that the Veteran’s level of impairment of functioning was “severe” as the Veteran’s psychiatric symptoms interfered with his work, household chores and duties, relationships with friends, fun, and leisure activities, relationships with his family, sex life, general satisfaction with life in the past month, and overall level of functioning in all areas of his life. Significantly, in a November 2012 VA treatment record, it was noted that the Veteran had experienced “thoughts of taking [his] life” in the “past few months.” The January 2014 VA psychiatric examination report shows that the Veteran was assessed occupational and social impairment with occasional decreased in work efficiently and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior; self-care and conversation. The Veteran described his marriage as stable and supportive but with some challenges. He reported that he was highly involved in the lives of his children including spending time at grandchildren’s events. The Veteran reported that money problems caused stress with him and his spouse. Symptoms were noted by the examiner as depressed mood; anxiety; chronic sleep impairment; and impaired impulse control, such as unprovoked irritability with periods of violence. Upon review of the above evidence, the Board finds that a disability rating of 70 percent, and no higher, is warranted beginning February 21, 2011, the date of the private psychiatric examination report first showing a “severe” level of impairment in functioning due to psychiatric symptoms. At that time, the Veteran reported experiencing anxiety and depression which limited him socially and caused conflict with his family. Also, while the record shows that the Veteran stopped working due to his macular degeneration, the February 2011 private psychiatric examination report also shows that the Veteran’s concentration was “significantly” impaired, suggesting that the Veteran’s psychiatric disability resulted in significant occupational impairment. Furthermore, the November 2012 VA treatment record showing that the Veteran had experienced “thoughts of taking [his] life” in the “past few months” is indicative of serious symptomatology. Significantly, as noted in the July 2020 Joint Motion, the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.” See Bankhead, v. Shulkin, 29 Vet. App. 10, 19 (2017). As for the potential for a disability rating higher than 50 percent prior to February 21, 2011, the Board finds that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher prior to February 21, 2011. Rather, the Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating. The 50 percent initial rating assigned prior to February 21, 2011 contemplates occupational and social impairment with some reduced reliability and productivity due to symptoms such as disturbances of motivation and mood. Prior to February 21, 2011 the Veteran experienced irritability, sleeping difficulties, hypervigilance, impaired impulse control, and depressed mood. No homicidal or suicidal ideations were noted. Additionally, there were no violent outbursts or inappropriate behavior noted. Moreover, prior to February 21, 2011 there was no evidence of persistent delusions, obsessional rituals that interfere with routine activities, near-continuous panic or depression, spatial disorientation, or neglect of personal appearance and hygiene that would cause occupational and social impairment with deficiencies in most areas. Furthermore, prior to February 21, 2011 the Veteran socialized normally with his wife and friends as well as maintained contact with his adult child and grandchildren. As for the potential of a disability rating higher than 70 percent from February 21, 2011 to June 5, 2016, the Board finds that the evidence does not show the symptomatology on par with the level contemplated by a 100 percent rating.  The Board has looked at all the factors and evidence identified above to determine whether the Veteran has met or more closely approximated the criteria for a maximum 100 percent rating.  However, when considering the overall evaluation of the examples which may support the 100 percent rating, the frequency, duration and severity of symptoms, the Veteran’s capacity for adjustment, and the examiner’s assessments of the Veteran’s overall psychological, social and occupational functioning, the Board must conclude that the Veteran’s PTSD has not met or more closely approximated the criteria for a 100 percent rating at any relevant time.  In this respect, the Veteran, even at his worst, can efficiently converse with the VA examiner, and can generally manage his daily activities on his own.  He is not psychotic or out of touch with reality.  Overall, his psychiatric disorder is not shown to manifest the type, extent and severity of symptoms demonstrating “total occupational and social impairment” within the meaning of the rating schedule at any point pertinent to this appeal. As such, a disability rating of 70 percent, and no higher, is warranted from February 21, 2011 to June 5, 2016. 2. A TDIU is granted effective August 1, 2010. A total disability rating may be assigned when the schedular rating is less than 100 percent where 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).   The Veteran has established service connection for PTSD, rated at 70 percent; left and right lower extremity peripheral neuropathy, rated at 40 percent each; a skin condition of the feet and groin, rated at 30 percent; diabetes mellitus, rated at 20 percent; bilateral hearing loss, rated at 10 percent; and noncompensable ratings for an eye disability, hypertension, and erectile dysfunction. His combined rating for these service-connected disabilities is 100 percent as of June 2016. Pertinent to the period on appeal beginning February 9, 2009, the Veteran’s combined rating for compensation purposes was 70 percent beginning February 9, 2009, 80 percent beginning March 29, 2013, 90 percent beginning June 6, 2016, and 100 percent beginning June 28, 2016.  38 C.F.R. § 4.25.  Therefore, he has met the threshold criteria for a TDIU since February 9, 2009.  38 C.F.R. § 4.16(a).  The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities.   In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.   As above, a review of the record shows that the Veteran last worked full-time in August 2010. In a September 2011 formal claim for a TDIU, the Veteran reported that he last worked fulltime in August 2010. He reported he had worked for an aluminum company for 1977 to 2010 and had to retire early due to diabetes mellitus and his eye disability which caused him an inability to see the computer screen. Significantly, a February 2011 private psychiatric examination report shows that the Veteran is “unable to maintain gainful employment due to macular degeneration.” While the Veteran is not specifically service connected for “macular degeneration,” the Veteran is service connected for several bilateral eye disabilities with similar symptomatology, to include ocular histoplasmosis and let eye mechanical ptosis. Also, a November 2016 VA eye examination reported noted that the Veteran’s eye disability impacted his ability to work in that he had low vision and decreased acuity and would need to use eccentric fixation and look upward. Some decreased depth perception would also be expected. Also, the February 2011 private psychiatric examination report also shows that the Veteran’s psychiatric symptoms interfered with the Veteran’s ability to work, specifically that his concentration was “significantly” impaired, suggesting that the Veteran’s psychiatric disability resulted in significant occupational impairment. Similarly, a February 2019 VA psychiatric examination report shows that the Veteran would have some difficulty to function adequately in a work environment and manage work related stressors. Moreover, June 2016 VA audio and peripheral nerve examination reports show that the Veteran’s service-connected hearing loss and peripheral neuropathy impacted the Veteran’s ability to work. Unemployability is a factual determination, not a medical one.  The Board is tasked with, first, reviewing the medical evidence to glean the Veteran’s service-connected impairment, and second, determining as a legal matter whether that impairment is sufficient to render him unable to maintain substantially gainful employment.  As above, the medical evidence shows that the Veteran’s service-connected disabilities, particularly his service-connected eye and psychiatric disabilities, significantly impact the Veteran’s ability to work. Such findings support the Veteran’s assertion that his service-connected disabilities affect his ability to secure substantially gainful employment.  Therefore, the Board finds that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities and, therefore, a TDIU is warranted effective August 1, 2010, the date he last worked full-time and met the schedular criteria for a TDIU.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.