Citation Nr: 21010861 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 20-03 062 DATE: February 25, 2021 ORDER Entitlement to an initial 70 percent disability rating for the Veteran's post-traumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s PTSD manifests as occupational and social impairment with deficiencies in most areas, such as work, judgment, thinking or mood. 2. The Veteran’s service-connected disability prevents him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent disability rating for the Veteran’s PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. § 3.340, 3.341, 4.15, 4.16 (2020) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from June 1962 to September 1966. In November 2020, the Veteran testified before the undersigned Veterans Law Judge and a transcript is attached. The Veteran made arguments regarding the VA’s duty to notify and assist. Specifically, he argued about the inadequacies of the VA examinations and biases of the examiners. While the June 2003 VA examiner found the Veteran did not have PTSD, the symptoms described in the examination are sufficient to determine the severity of his disability. Thus, the Board will use the examination in its determination of whether an increased rating is warranted. Furthermore, while the Board also acknowledges the Veteran’s concerns regarding biased examiners, the Board finds the VA examiners accurately reported his symptoms as they documented many of the same symptoms reported by the Veteran and reported in his private examinations. The examinations were adequate. Consequently, the Board finds the examinations, along with the other medical and lay evidence of record, provided enough information to decide his claims. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in July 2002. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s PTSD is evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130 (2020). PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2020). In an August 2018 rating decision, the AOJ granted service connection for PTSD and assigned an initial 50 percent rating, effective June 20, 2017. In a November 2019 rating decision, the AOJ assigned an initial 30 percent rating effective July 18, 2002, and a 70 percent rating effective September 15, 2014. Under the General Rating Formula for Mental Disorders, 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 rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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 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; or memory loss for names of close relatives, own occupation or own name. Symptoms listed in the 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). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The claims file contains medical and lay evidence documenting the Veteran’s PTSD symptoms. A March 2003 private record documented that the Veteran had nightmares, repeated memories of the traumatic events, and trouble concentrating. The Veteran reported having violent outbursts that he did not remember but was told about later and engaging in compulsive behavior. He would put on a 26-pound pack and go walking for miles. He was depressed and preferred to remain isolated. In June 2003 he received a VA examination. He reported similar symptoms with the addition of hypervigilance and mild memory problems. The Veteran also stated that he would excuse himself from anything having to do with children because it reminded him of his trauma. He continued to report similar symptoms in his VA and private treatment records. In March 2005 he noted he had some close friends that lived in a different town and that he attended church regularly. An April 2005 private record noted that the Veteran’s trigger responses and flashbacks were triggered by certain sounds. In private records from 2009 he reported experiencing flashbacks, poor sleep, depression, memory lapses, suicidal thoughts, distressing dreams, and feelings of detachment from others. His next VA examination was in September 2014. In addition to the symptoms previously reported, the examiner noted that the Veteran experienced anxiety; suspiciousness; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; suicidal ideation; and persistent danger of hurting self or others. The examiner found that his PTSD resulted in occupational and social impairment with deficiencies in most areas. In October 2016, E. G., a mental health nurse, submitted a statement in support of the Veteran’s claim. She stated that she has known him since 1983, and had been involved in treating veterans who have PTSD for 14 years. She described the Veteran as having a reclusive lifestyle. She stated he was suspicious, hypervigilant, and guarded around others. She stated that he ruminated about his stressors, had depression and anxiety, had insomnia and nightmares, and had poor appetite and weight loss. She stated he had chronic suicidal thoughts and previously attempted to commit suicide. She described his PTSD as severe. In June 2017 he received another VA examination. The examiner noted that the Veteran was close with his sister, brother, and a few friends. In addition to his previously reported symptoms, the examiner noted that the Veteran reported emotionally withdrawing from people, extreme feelings of guilt, and feeling that things are closing in on him. He reported attempting suicide in 2008. Upon examination, his speech was normal, his grooming was “good,” his thought processes were goal-directed and circumstantial. His mood was nervous. His insight and judgment were fair. The examiner stated that his PTSD resulted in occupational and social impairment with reduced reliability and productivity. At his most recent VA examination in September 2019, he continued to report similar symptoms but also noted he could not keep his thoughts together or handle stress. He reported that he wore the same color every day, green like he wore in service. The examiner noted that the Veteran did not present evidence of hallucinations, delusions, or current thoughts of self-harm or harming others or property. The examiner found that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas. The evidence also contains multiple lay statements from the Veteran and people close to him. Lay statements from the Veteran note that he has continually experienced nightmares, becomes easily irritated, and does not go out much. He reported that while he attended church regularly, he went to the Wednesday service to avoid being around women and children. He also recounted his suicide attempt and how he chased a co-worker with a firearm. Lay statements from his friends and family also noted the Veteran’s mood swings, easily started response, and that he avoids people. The Veteran also testified to similar symptoms at his Board hearing. The Board finds an increase in the Veteran’s initial PTSD disability rating to 70 percent is warranted. The record shows the Veteran’s consistent complaints of nightmares and intrusive thoughts. Furthermore, the Veteran reported symptoms of irritability, anger, constant hypervigilance, compulsive behavior, and inability to adapt to stressful circumstances. While the Veteran retained contact with his family and some friends, he preferred to remain isolated and had problems establishing and maintaining effective relationships. Accordingly, the Board finds the preponderance of the evidence is for the Veteran’s claim and an increase to 70 percent is granted. The Board grants a TDIU in this decision, acknowledging total occupational impairment. However, total social impairment is not present. Therefore a 100 percent rating for PTSD cannot be granted. The Board acknowledges the evidence in the record documenting the Veteran’s past suicidal intention and violent outburst, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, his more recent records have shown the Veteran has denied having suicidal intentions or plans. Additionally, while he has showed violent tendencies in the past they also have not risen to the frequency and duration to warrant a 100 percent disability rating. Though the Veteran’s behavior is concerning, the evidence suggests the Veteran’s suicidal ideation and violent tendencies are not of the frequency, severity, or duration such that they cause or contribute to total social impairment. Thus, the Board finds that the record does not show that he is a persistent danger to himself or others, such that a 100 percent rating is warranted. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). The medical and lay evidence of record does not show this level of social impairment. The evidence does not show that the Veteran is completely and utterly socially impaired, as he is able to maintain relationships with some of his family and still regularly attends church. Therefore, the Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and an increased rating to 100 percent is denied. TDIU A TDIU rating may be assigned, 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board concedes the Veteran meets the schedular rating for TDIU. The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. After service the Veteran worked as a teacher and then as an oil and land broker. The record shows that the Veteran’s PTSD caused problems for both of his jobs. The Veteran reported that when he was a teacher he got into arguments with his coworkers and supervisors. In his next job he pulled a firearm on his coworker. The Board acknowledges that at the VA examinations, the examiners have not found that the Veteran’s PTSD causes total occupational impairment. The Board notes that in April 2003 a private examiner concluded that his PTSD would interfere with his ability to retain gainful employment because he has an aversion to interpersonal interactions, suffers from paranoia, and is distrustful. The Board also notes that the Veteran experiences memory issues, poor concentration, as well as constant depression and anxiety. Furthermore, the VA examiners have consistently noted that he has difficulty establishing and maintaining effective relationships and adapting to stressful situations. Consequently, the Board finds that the preponderance of the evidence is for the Veteran’s claim and entitlement to a TDIU is warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.