Citation Nr: 21011342 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-10 324 DATE: March 1, 2021 ORDER For the initial rating period from September 10, 2009 to March 5, 2015, an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. For the appeal period beginning March 6, 2015, a maximum, 100 percent rating for PTSD is granted. For the appeal period from September 10, 2009 to March 5, 2015, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the initial rating period from September 10, 2009 to March 5, 2015, the Veteran’s PTSD symptomatology did not more closely approximate total occupational and social impairment. 2. For the appeal period beginning March 6, 2015, the Veteran’s PTSD symptomatology more closely approximated total occupational and social impairment. 3. For the initial rating period from September 10, 2009 to March 5, 2015, the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the initial rating period from September 10, 2009 to March 5, 2015, the criteria for an initial rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.130, DC 9411. 2. For the appeal period beginning March 6, 2015, the criteria for a 100 percent total rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.130, DC 9411. 3. For the initial rating period from September 10, 2009 to March 5, 2015, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1965 to March 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before an Acting Veterans Law Judge (AVLJ) in January 2015. In March 2017, the Board sent a notification letter to the Veteran explaining that the AVLJ who presided over the hearing was no longer available to participate in the appeal and offered the Veteran 30 days to request a hearing before a different VLJ. In a June 2017 response, the Veteran elected not to go forward with an additional hearing and expressed his desire to have his case decided based on the evidence currently of record. The Board remanded the appeal in November 2015 and July 2017 for additional development, and adjudicated the claim in an April 2018 decision, awarding entitlement to an initial disability rating of 70 percent, but no higher, prior to February 11, 2016, and 30 percent thereafter. The Veteran appealed the April 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s decision in part, finding the Board inappropriately relied upon the listing of PTSD symptoms associated with the next-higher rating criteria as a basis for denial, and failed to consider potentially favorable evidence including the Veteran’s and spouse’s testimonies regarding hygiene, estrangement and separation from family, and lack of friends. Additionally, the JMPR found the Board did not adequately address whether the duty to assist was satisfied regarding treatment records of Detroit Vet Center and whether the issue of TDIU was reasonably raised by the record. According to the Court’s JMPR, the Board remanded the issues in January 2020. 1. For the initial rating period from September 10, 2009 to March 5, 2015, an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. 2. For the appeal period beginning March 6, 2015, a total rating for PTSD is granted. The Veteran disagrees with his initial PTSD rating and asserts his symptoms have affected his entire social life and majorly impacts his employment. See May 2011 VA 21-4138, Statement in Support of Claim; March 2012 VA Form 9. Additionally, during the January 2015 Board hearing, the Veteran testified his symptoms are worse as he cannot stand to be around people and at home, his wife is in one part of the house, and he is in his “little room” and “that is just the way [they] survive.” See January 2015 Board Hearing Transcript, pg. 22. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran is in receipt of an initial 70 percent rating for PTSD prior to February 11, 2016, and 30 percent thereafter. He is rated under DC 9411, and the period on appeal is from September 10, 2009, the effective date of service connection. Under DC 9411, a 70 percent rating is assigned where PTSD produces 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 a work-like setting); and inability to establish and maintain effective relationships. A total disability rating is assigned where PTSD is productive of total occupational and social impairment, 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; memory loss for names of close relatives, own occupation, or own name. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a holistic analysis that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, cause the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Initially, the Board notes that throughout the appeal period, or from September 10, 2009, the Veteran’s diagnoses are depressive disorder, chronic PTSD, PTSD with depression, and cannabis use disorder secondary to PTSD. See February 2010 VA Mental Disorders Examination; March 2010 VA Initial Evaluation for PTSD; March 2015 VA Dr. D.C. VA Clinical Opinion; February 2016, September 2017 VA Review PTSD DBQs; August 2018 VA BHIP Recovery Plan of Care; December 2020 Dr. M.C. Private Opinion. The record does not adequately distinguish the symptomatology of these disorders from his service-connected disability, and therefore they will be considered as part of his PTSD. Mittleider v. West, 11 Vet. App. 181 (1998). After a review of the medical and lay evidence, the Board finds that the criteria for an initial rating in excess of 70 percent are not met prior to March 6, 2015; however, a total rating for PTSD is granted from March 6, 2015. The evidence shows that before March 6, 2015, the Veteran’s PTSD produced deficiencies in most areas due to such symptoms as: suicidal ideation (admitted to suicidal ideations without a plan in the 1980s, 2010, and 2014), unprovoked irritability with periods of violence (frequent altercations with co-workers, “told off a meter maid,” argued with a police officer, angry outbursts at church and VA group meetings, along with verbal fights), depressed mood, anxiety, anger, chronic sleep impairment, nightmares, avoidance, panic attacks, memory loss, hypervigilance, isolation from friends and family (spends time in bunker watching war movies with an unsecured loaded weapon at his side), impaired impulse control and judgment, suspiciousness, difficulty establishing and maintaining effective work and social relationships (not getting along with family or friends, not working, difficulty leaving his “bunker,” being in public, interacting with others), and difficulty in adapting to stressful circumstances including work or a worklike setting. Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (“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 with deficiencies in most areas.”). See September 2009 VA Behavioral CareTeam Consult Response; February 2010 VA Mental Disorders (Except PTSD and Eating Disorders) Examination; March 2010 VA Initial PTSD Examination; May 2011 VA 21-4138, Statement in Support of Claim; January 2010, September 2011, October 2012 Psychiatric Progress Notes; October 2010, August 2012, February 2015 VA Vet Center Progress Notes; December 2014 S.W. Statement. The Board further finds that prior to March 6, 2015, the Veteran’s symptoms, do not more nearly approximate a rating of 100 percent as they are not of such a severity or frequency to result in total occupational and social impairment. In this regard, there is no medical or lay evidence in the record of gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); or disorientation to time or place. The Veteran has never reported memory loss of the severity contemplated by a 100 percent rating. The Veteran’s social history does demonstrate a pattern of isolating himself from family, altercations with co-workers and church members, a loss of interest, periods of impulsive behavior, poor judgment including substance abuse and violent behavior; however, notably, the Veteran reported enjoying therapy groups, attending family gatherings (albeit only 2-3 hours), having a close relationship with his pastor and caring for his wife during an illness. See May 2012, October 2012 VA Psychiatric Progress Notes; February 2010 VA Mental Disorders (Except PTSD and Eating Disorders) Examination; March 2010 VA Initial PTSD Examination; April 2013 VA Vet Center Progress Note. As to occupational impairment, the record demonstrates unemployment since December 2008 due to retirement from construction work. See December 2020 VA 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The record further indicates assistance with his son’s construction company by picking up or dropping off items; however, the Board recognizes this employment to be marginal. The Veteran reported that he retired due to poor sleep, nightmares, arguments on the job, and reaching the age of retirement. See May 2011 VA 21-4138, Statement in Support of Claim; February 2010 VA PTSD Program Initial Assessment; March 2010 VA Initial PTSD Examination; June 2016 VA Neuropsychology Consult. The Board finds that after March 6, 2015, the evidence shows the Veteran’s symptoms more nearly approximate a rating of 100 percent as the Veteran’s PTSD produced total occupational and social impairment due to symptoms such as: gross impairment in thought processes or communication (concentration difficulties, word-finding problems, and slowed thinking, unable to name medications); grossly inappropriate behavior (cursing others out, angry outbursts at church and with daughter, verbally abusive to spouse requiring time apart); persistent danger of hurting self or others (the need for locked/loaded weapon within arm’s reach, urges to hurt himself and others, to include homicidal and suicidal ideations “all the time”); intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) (wife assists Veteran with “wash[ing] up,” dressing, and performs all household chores); disorientation to time or place (the Veteran drives and forgets where he is going and becomes lost); memory loss for names of close relatives, own occupation, or own name (unable to recall grandchildren’s names or recognize nephew). See March 2015 Dr. D.G. VA Opinion; January 2015 Board Hearing Transcript, pgs. 25-26, 34, 36-37, 38-39, 40, 46-48; April 2016, November 2016, March 2017 VA Psychiatric Progress Notes; June 2016 VA Neuropsychology Consult; August 2016 Veteran’s Statement; August 2016 Spouse’s Statement; December 2020 Dr. M.C. Private Opinion. The Veteran’s social history does demonstrate a pattern of isolation (dropping out of church choir and cutting back attendance at men’s meetings due to cognitive distortions such as “leery of strangers” and “danger could be anywhere” and the need to stay in his “bunker” to control his anger), the reporting of emotional detachment from his family, poor short-term memory and concentration, becoming irritated for no reason and verbally abusive to spouse and others, the urge to hurt himself and others all the time. As to occupational impairment, the record demonstrates the Veteran reported near-complete isolation for management of anger and outbursts, diminished cognitive functioning, and memory loss. See April 2016, November 2016, March 2017 VA Psychiatric Progress Notes; June 2016 VA Neuropsychology Consult; August 2016 Veteran’s Statement; December 2020 Dr. M.C. Private Opinion. The February 2016 VA examiner found the Veteran exhibited persistent and exaggerated negative beliefs and emotional state, hypervigilance, exaggerated startle response, depressed mood, anxiety, and chronic sleep impairment, but found mild and transient symptoms decreasing work efficiency and ability to perform occupational tasks. The September 2017 VA examiner indicated the Veteran’s symptoms exhibited depressed mood, anxiety, and chronic sleep impairment with additional symptoms of persistent negative emotional state marked diminished interest or participation in activities, feelings of detachment or estrangement from others, irritable behavior, and angry outbursts (verbal or physical aggression), hypervigilance, exaggerated startle response, concentration problems and found the Veteran 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. However, the Veteran’s treating VA psychiatrist, Dr. D.C., opined the Veteran’s ongoing readjustment struggles have led to major disruptions in his life-employment, social, and family. He indicated the Veteran would require counseling for the rest of his natural life and should consider psychiatric intervention and long-term PTSD inpatient programs. See March 2015 VA Dr. D.C. VA Clinical Opinion. Further, the December 2020 private opinion report states the Veteran’s extremely poor interpersonal communication, with periods of violence, threatening behavior, irritability, anger indicate a complete dysfunction in occupational and social settings. In sum, a higher, 100 percent rating is not warranted, before March 6, 2015, as the evidence of record does not support a finding that the Veteran exhibits the level of cognitive, occupational, and social impairment that renders him totally occupationally and socially impaired as a result of the type of symptoms listed in the general rating schedule or symptoms of a similar degree. The Board has also considered the frequency, severity, and duration of the Veteran’s psychiatric symptoms. As such, the preponderance of the evidence shows that the Veteran’s psychiatric symptomatology does not more closely approximate the criteria for a 100 percent disability rating under the general rating schedule for psychiatric disorders. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. However, from March 6, 2015, given the evidence and affording the Veteran the benefit of the doubt, the Board finds total social and occupational impairment due to PTSD, and a 100 percent rating is warranted. Accordingly, an initial rating in excess of 70 percent for PTSD prior to March 6, 2015 is denied, and thereafter a total 100 percent rating for PTSD is granted. 3. For the appeal period from September 10, 2009 to March 5, 2015, entitlement to TDIU is granted. The issue of entitlement to a TDIU is part and parcel of the increased rating claim on appeal, notwithstanding that the Veteran did not submit an application for a TDIU until December 2020. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also May 2011 VA 21-4138, Statement in Support of Claim; December 2020 VA 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran asserts his service-connected disabilities precluded him from securing and following a substantially gainful occupation. See December 2020 VA 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Board agrees. A total disability rating 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 the result of service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. As decided herein, the Veteran is now receipt of a total schedular rating for PTSD beginning March 6, 2015. Assignment of a total schedular rating does not automatically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) (2012) by having an “additional” disability of 60 percent or more (“housebound” rate)). In Bradley, the United States Court of Appeals for Veterans Claims (Court) found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. The Veteran’s only other service-connected disabilities are for ischemic heart disease, rated as 30 percent disabling, and onychomycosis, rated as noncompensable. The medical evidence discussed above shows that the Veteran’s impairment in occupational functioning is due to his PTSD disability, and not his other service-connected disabilities. In other words, the evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation solely due to his service-connected disabilities, aside from PTSD, nor has the Veteran asserted otherwise. Thus, to award a separate TDIU rating, in addition to the schedular 100 percent rating based on the Veteran’s service-connected PTSD disability would result in duplicate counting of disabilities, which is impermissible. 38 C.F.R. § 4.14 (2018). As such, the Board finds that the assignment of a total schedular rating for PTSD renders the TDIU claim moot for the appeal period beginning March 6, 2015. Sabonis v. Brown, 6 Vet. App. 426 (1994). As it pertains to the rating period from September 10, 2009 (the date of claim for service connection for PTSD) to March 5, 2015 (the day prior to the grant of a 100 percent PTSD rating), and pursuant to the Board’s decision herein, the Veteran’s service-connected compensable disabilities consisted of PTSD (70%) and ischemic cardiomyopathy. Thus, he has met the threshold schedular requirement for the award of TDIU benefits under 38 C.F.R. § 4.16(a) for the period from September 10, 2009 to March 5, 2015. Moreover, the Veteran last held substantially gainful employment in December 2008 in the construction field. See December 2020 VA 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. What remains to be determined is whether the functional impairment associated with these disabilities is of such nature and severity as to preclude substantially gainful employment. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The evidence shows that the Veteran last worked in December 2008 and he does not receive income from employment exceeding the federal poverty threshold. See December 2020 VA 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Regarding the non-economic component, the Veteran reported he completed up to 2 years of college education and worked in the field of construction from January 1995 to December 2008. See December 2020 VA 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. His past employment involved operating equipment, performing as a laborer and equipment manager all of which require the Veteran to work closely with other construction workers or supervisors. See February 2016 VA Review PTSD DBQ. The Veteran reports working in construction since leaving service but left due to poor sleep, nightmares, and arguments which led to disciplinary actions. See February 2010 VA PTSD Program Initial Assessment. The March 2010 VA examiner indicated the Veteran’s PTSD symptoms affect his ability to work as the Veteran exhibits impulsive behavior, poor judgment, anger with frequent altercations with co-workers. See March 2010 VA Initial PTSD Examination. Additionally, the March 2012 VA heart conditions examiner indicated the Veteran’s heart conditions impacted his ability to work due to chest pains and shortness of breath with heavy manual labor. Here, the probative evidence of record demonstrates that the Veteran’s PTSD and heart condition are productive limitations that precluded him from securing or following substantially gainful employment since December 2008. He does not have work experience that is readily applicable to a sedentary occupation based on the ordinary meaning of the term. Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). To the extent that the totality of the medical evidence does not weigh in favor of the claim, the ultimate determination as to entitlement to a TDIU is made by VA adjudicators, rather than medical examiners. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds the Veteran’s PTSD and heart condition combined preclude the Veteran from being able to secure or follow a substantially gainful occupation. Notably, the Veteran was a construction worker for over 20 years. The Board observes that the type of job that is consistent with the Veteran’s singular post-service employment requires physical stamina and the ability to work with others. Accordingly, as the Veteran meets the schedular criteria and as his service-connected disabilities precluded him from securing and maintaining substantially gainful employment prior to the award of a total schedular rating, a TDIU is granted from September 10, 2009 (date of initial claim for service connection for PTSD) to March 5, 2015 (the day prior to the grant of a 100 percent rating for PTSD). 38 C.F.R. § 4.16(a). Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria L. Stephens 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.