Citation Nr: 21010517 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-20 027 DATE: February 25, 2021 ORDER 1. An increased rating of 70 percent for service-connected posttraumatic stress disorder (PTSD) with depression from April 26, 2010 until April 27, 2017 (not including from July 20, 2010 until September 1, 2010, when the Veteran was in receipt of a 100 percent disability rating), is granted. 2. A total disability rating based on individual unemployability (TDIU) from April 26, 2010 until April 27, 2017 (not including from July 20, 2010, until September 1, 2010 when the Veteran was in receipt of a 100 percent disability rating), is granted. FINDINGS OF FACT 1. Giving the Veteran the benefit of the doubt, from April 26, 2010 until April 27, 2017 (not including from July 20, 2010 until September 1, 2010 where the Veteran already has a 100 percent disability rating), the Veteran’s PTSD/depression symptoms most closely approximate occupational and social impairment with deficiencies in most areas. An increase in the Veteran’s disability was factually ascertainable within one year prior to his August 17, 2010 increased rating claim (as of April 26, 2010). 2. Giving the Veteran the benefit of the doubt, from April 26, 2010, until April 27, 2017, (not including from July 20, 2010 until September 1, 2010 where the Veteran already has a 100 percent disability rating), the Veteran’s service-connected PTSD/depression precluded him from being able to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. From April 26, 2010, until April 27, 2017, (not including from July 20, 2010 until September 1, 2010 when the Veteran was in receipt of a 100 percent disability rating), the criteria for an increased rating of 70 percent for service-connected PTSD/depression have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. 2. From April 26, 2010, until April 27, 2017, (not including from July 20, 2010 until September 1, 2010 when the Veteran was in receipt of a 100 percent disability rating), the criteria for a schedular TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to January 1972. This matter originally came before the Board of Veterans’ Appeals (Board) from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a September 2013 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter has previously been remanded by the Board for further development, most recently in February 2020. This matter is again before the Board. 1. An increased rating of 70 percent for service-connected PTSD with depression from April 26, 2010 until April 27, 2017 (not including from July 20, 2010 until September 1, 2010 when the Veteran was in receipt of a 100 percent disability rating), is granted. The Veteran believes that an increased rating for service-connected PTSD with depression prior to April 27, 2017 is warranted. See November 2020 Appellate Brief. The General Rating Formula for Mental Disorders (including PTSD) provides for a 70 percent rating 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 work like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent disability rating is provided for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a claim for an increased rating, the benefit of the doubt goes to the veteran. See 38 C.F.R. § 4.3. When there is a doubt as to which of two evaluations should be assigned, the higher evaluation is used if the disability more nearly approximates the criteria required for that rating. See 38 C.F.R. § 4.7. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In September 2010, the Veteran reported that his PTSD/depression had worsened. See September 2010 Statement in Support of Claim. A September 2010 PTSD/depression examination found that the Veteran did not have any social relationships but did talk to one of his brothers every three months or so. He stayed in his room most of the time and either watched TV or did nothing. He never talked to anyone about service and had become increasingly detached from others over the past few years. He used to be outgoing, enjoyed getting out with others, and liked people, but not anymore. He only got two hours of sleep five to six nights each week due to nightmares. When he would wake up in the morning, he felt tired as if he had gotten no rest and was irritable. The Veteran had panic attacks four to five times per week, which occurred especially when the Veteran was around crowds, but also occurred without crowds. When panic attacks occurred, the Veteran felt like he would explode, that something bad would happen if he did not get away, and he had to stay away from people to cope. It took about two hours of being alone to resolve the situation. The Veteran also reported that loud noises caused him to fall to the ground and that he would have been ready to shoot everyone if he had his gun with him. The Veteran reported that he was not employable because he was like a bomb waiting to go off all the time. See September 2010 VA Examination. Medical records from September 2010 showed that loud noises bothered the Veteran, that the Veteran had nightmares, that the Veteran had a long-time girlfriend, and that the Veteran had flashbacks of service. See September 2019 CAPRI. Medical records from 2011 showed sleep problems. See September 2019 CAPRI. Medical records from 2013 showed that the Veteran had little interest or pleasure in doing things and felt down, depressed, or hopeless. See September 2019 CAPRI. In 2014, the Veteran reported that the last job he had was with VA sterilizing medical instruments in a hospital as part of a work therapy program in 2010. He apparently upset people while there. He had to leave work often because he could not cope with all the people. Since around September 2009 or 2010, the Veteran did not go around people and just stayed in his room. He only left to pay a bill or to get food. Most of the time, he ate meals at home. He did not like getting meals away from home because he was not able to watch what was going on around him, he was not able to be alert, there would be too many people around, and he would feel uncomfortable. He only got two hours of sleep at night, in part due to nightmares. In the mornings, he would go outside for a walk if there were not too many people around. He had nothing to do with his family and had alienated them. He was not an easy guy to be around. He was very touchy, and his temper was somewhat out of control. He would lose his temper very quickly. He had poor impulse control and had gotten into fights. He would give a quick greeting to his neighbors, but then would go straight to his room. People wanted to associate with him, but he would not let them. The Veteran had extremely low periods of depression where he felt like life was not worth living. He could not function in society anymore. His PTSD/depression worsened with age. He did not have a life because he avoided everything. His temper and problems with being around people stopped him from working. See January 2014 Hearing Transcript. An August 2015 PTSD/depression examination showed the Veteran’s report that he usually spent all day in his apartment watching TV, except to get food and groceries. He had no friends to visit and no friends came to visit. He had a long-time girlfriend whom he could talk with. They would hang out at each other’s homes. He was estranged from his family. The Veteran reported that he had not sought sustained mental health treatment since around September 2010 because it did not work for him. He had not been seen for further treatment since one visit in October 2010. He only slept about 2 hours per night, and when he did not take medication, he did not sleep at all. Despite that fact, he was not consistently taking the medication. The Veteran had anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, and difficulty adapting to stressful situations like work or a work-like setting. The Veteran only had slanted logic when it came to his belief that he should have had a 100 percent disability rating for his PTSD/depression because he felt that treatment did not work for him. The Veteran also had intense or prolonged psychological distress at exposure to things which resembled past traumatic events, avoided reminders that brought back distressing memories, had markedly diminished interest or participation in significant activities, felt detached or estranged from others, had irritable behavior, had hypervigilance, and had an exaggerated startle response. His symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. See August 2015 C&P Exam. Medical records from 2015 showed that the Veteran had no friends or family to take him home, had anxiety, and had depression. See September 2019 CAPRI. A March 2016 PTSD/depression examination found that some of the Veteran’s PTSD symptoms may have caused mild occupational impairment. Such symptoms included fatigue due to sleep disturbance, flashbacks/intrusive thoughts about service, social isolation, irritability, and easy anger. See March 2016 C&P Exam. Medical records from 2016 showed that the Veteran had no family in the area. See September 2019 CAPRI. Medical records from 2017 showed that the Veteran had ongoing depression; struggled with intrusive ideation, anxiety, and depression; and had not received any mental health care for 2 years. The Veteran had little interest or pleasure in doing things; felt down, depressed, and hopeless; tried hard to avoid thinking about service; and tried hard to avoid situations which reminded him of service. The Veteran was constantly on guard, watchful, or easily startled. He felt numb or detached from others, activities, or surroundings. See September 2019 CAPRI. Based on the evidence of record, the Board gives the Veteran the benefit of the doubt and finds that the Veteran’s PTSD/depression symptoms most closely approximated a 70 percent disability rating. First, the Veteran reported that he experienced low moments where he felt like life was not worth living. The Board finds these akin to passive suicidal ideations. Suicidal ideations alone may warrant a 70 percent disability rating. See Bankhead v. Shulkin, 29 Vet. App. 10, 20-21 (2017). Second, the Veteran had impaired impulse control. He was easily irritable, lost his temper quickly, always felt like a bomb waiting to go off, and had gotten into fights. Third, the Veteran had difficulty in adapting to stressful situations as shown by examination. Finally, the Veteran had the inability to establish any effective relationships and had the inability to maintain effective relationships, other than with one or two people. A higher rating of 100 percent is not warranted because the evidence does not show total occupational and social impairment. Specifically, the Veteran had a long-time girlfriend whom he was able to talk to and for at least part of the appeal period, was able to speak to his brother every so often. The Veteran was also able to give a quick greeting to his neighbors. Additionally, the evidence does not show gross impairment in thought processes or communications. Specifically, the Veteran only had slanted logic when it came to his belief that he deserved a 100 percent disability rating for his PTSD/depression. This can hardly be considered a gross impairment of thought processes. The evidence also does not show persistent delusions or hallucinations. Other than getting into fights, the evidence does not show grossly inappropriate behavior. The evidence does not show that getting into fights, passive suicidal ideation, or any other thoughts/actions put the Veteran in persistent danger of hurting himself or others. Finally, the evidence does not show 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. Id. From a medical record dated April 26, 2010, within one year from receipt of the Veteran’s claim, it was factually ascertainable that his service-connected PTSD/depression had worsened. See Gaston v. Shinseki, 605 F. 3d 979 (2010). At that time, it was noted that his PTSD had worsened during the past few weeks. Therefore, from April 26, 2010, until April 27, 2017 (not including from July 20, 2010 until September 1, 2010 where the Veteran already has a 100 percent disability rating), a 70 percent rating is assigned for the Veteran’s service-connected PTSD/depression. 2. A TDIU from April 26, 2010 until April 27, 2017 (not including from July 20, 2010 until September 1, 2010 when the Veteran was in receipt of a 100 percent disability rating), is granted. The Veteran believes that a TDIU prior to April 27, 2017 is warranted. See November 2020 Appellate Brief. A schedular total disability evaluation for compensation purposes may be assigned when the schedular rating is less than 100 percent, 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, this disability shall be ratable at 60 percent or more, or 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. §§ 3.340, 3.341, 4.16(a). For a TDIU claim, the issue is whether a veteran’s service-connected disability or disabilities preclude the veteran 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). Marginal employment generally is deemed to exist when a veteran’s earned annual income does not exceed the poverty threshold. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As stated above, as of April 26, 2010, the Veteran had a 70 percent disability rating for PTSD/depression. Therefore, as of that date, a schedular TDIU is available if the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disability. The Veteran had a work history of being a police officer, a forklift driver, and working at Walmart. The Veteran’s highest educational degree was a GED. The Veteran was enrolled in a VA work therapy program from January 2010 to September 28, 2010, where he earned a little under $7,000.00. See September 2019 CAPRI. As this is far below the poverty threshold, the Board finds that this employment was marginal. A September 2010 PTSD/depression examination found that the Veteran did not have any social relationships. He stayed in his room most of the time and either watched TV or did nothing. He had become increasingly detached from others over the past few years. He used to be outgoing, enjoyed getting out with others, and liked people, but not anymore. He only got two hours of sleep five to six nights each week due to nightmares. When he would wake up in the morning, he felt tired as if he had gotten no rest and was irritable. The Veteran had panic attacks four to five times per week, which occurred especially when the Veteran was around crowds, but also occurred without crowds. When panic attacks occurred, the Veteran felt like he would explode, that something bad would happen if he did not get away, and he had to stay away from people to cope. It took about two hours of being alone to resolve the situation. The Veteran also reported that loud noises caused him to fall to the ground and that he would have been ready to shoot everyone if he had his gun with him. The Veteran reported that he was not employable because he was like a bomb waiting to go off all the time. The Veteran previously lost a job years ago because of his temper in 2007. See September 2010 VA Examination. Medical records from September 2010 showed that loud noises bothered the Veteran, that the Veteran had nightmares, and that the Veteran had flashbacks of service. See September 2019 CAPRI. Medical records from 2011 showed sleep problems. See September 2019 CAPRI. Medical records from 2013 showed that the Veteran had little interest or pleasure in doing things and felt down, depressed, or hopeless. See September 2019 CAPRI. In 2014, the Veteran reported that the last job he had was with VA sterilizing medical instruments in a hospital as part of a work therapy program in 2010. He apparently upset people while there. He had to leave work often because he could not cope with all the people. Since around September 2009 or 2010, the Veteran did not go around people and just stayed in his room. He only left to pay a bill or to get food. Most of the time, he ate meals at home. He did not like getting meals away from home because he was not able to watch what was going on around him, he was not able to be alert, there would be too many people around, and he would feel uncomfortable. He only got two hours of sleep at night, in part due to nightmares. He was not an easy guy to be around. He was very touchy, and his temper was somewhat out of control. He would lose his temper very quickly. He had poor impulse control and had gotten into fights. People wanted to associate with him, but he would not let them. The Veteran had extremely low periods of depression where he felt like life was not worth living. He could not function in society anymore. His PTSD/depression worsened with age. He did not have a life because he avoided everything. His temper and problems with being around people stopped him from working. See January 2014 Hearing Transcript. An August 2015 PTSD/depression examination showed the Veteran’s report that he usually spent all day in his apartment watching TV, except to get food and groceries. He only slept about two hours per night, and when he did not take medication, he did not sleep at all. Despite that fact, he was not consistently taking the medication. The Veteran had anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, and difficulty adapting to stressful situations like work or a work-like setting. The Veteran also had intense or prolonged psychological distress at exposure to things which resembled past traumatic events, avoided reminders that brought back distressing memories, had markedly diminished interest or participation in significant activities, felt detached or estranged from others, had irritable behavior, had hypervigilance, and had an exaggerated startle response. His symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. See August 2015 C&P Exam. Medical records from 2015 showed that the Veteran had anxiety and depression. See September 2019 CAPRI. A March 2016 PTSD/depression examination found that some of the Veteran’s PTSD symptoms may have caused mild occupational impairment. Such symptoms included fatigue due to sleep disturbance, flashbacks/intrusive thoughts about service, social isolation, irritability, and easy anger. See March 2016 C&P Exam. Medical records from 2017 showed that the Veteran had ongoing depression and struggled with intrusive ideation, anxiety, and depression. The Veteran had little interest or pleasure in doing things; felt down, depressed, and hopeless; tried hard to avoid thinking about service; and tried hard to avoid situations which reminded him of service. The Veteran was constantly on guard, watchful, or easily startled. He felt numb or detached from others, activities, or surroundings. See September 2019 CAPRI. An October 2020 PTSD/depression examination found that from 2015 to 2017, the Veteran may have had some occasions when his judgment would have been   clouded by sudden irritability, which would not always have been tolerated in some work environments. The Veteran may also have had fatigue at times due to sleep trouble. The Veteran would have had problems interacting with coworkers and customers when irritable and would have had problems adapting to changes or stress-related demands at work. See October 2020 C&P Exam. Based on the evidence of record, the Board gives the Veteran the benefit of the doubt and finds that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected PTSD/depression from April 26, 2010 until April 27, 2017. Specifically, during his time at a VA work therapy program in 2010, the Veteran had to often leave work because he could not cope with people. He also upset people while there. Since then, he had rarely left his apartment for any reason. He had problems with crowds, coping with being around people, panic attacks which took two hours to resolve, anxiety, hypervigilance, suspiciousness, and an exaggerated startle response which caused him to fall to the floor when he heard loud noises. Additionally, he had problems with fatigue, depression, little interest in things, feeling like life was not worth living, and flashbacks/intrusive thoughts. The Veteran also had problems with impulse control, irritability, temper, and feeling like he was a bomb always waiting to go off. The Veteran previously lost a job due to his temper in 2007. Finally, the Veteran had difficulty adapting to stressful situations like at work. The Board notes that since the Veteran’s problems with his previous jobs, his PTSD/depression has worsened. The Board finds that the combined effect of the Veteran’s service-connected PTSD/depression symptoms precluded him from being able to secure and follow substantially gainful employment.   Therefore, a schedular TDIU is granted from April 26, 2010 until April 27, 2017 (not including from July 20, 2010 until September 1, 2010 where the Veteran already has a 100 percent disability rating), with April 26, 2010 being the date when the Veteran first met the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, 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.