Citation Nr: 21012541 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-46 344 DATE: March 4, 2021 ORDER An initial increased disability rating of 70 percent, but no higher, for the service-connected posttraumatic stress disorder (PTSD) with persistent depressive disorder, for the entirety of the appeal period is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected PTSD, for the appeal period prior to April 21, 2020, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, throughout the entirety of the appeal period, the symptoms associated with his service-connected PTSD with persistent depressive disorder have more nearly approximate occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, for the entire appeal period, but have not resulted in total occupational or social impairment. 2. Resolving reasonable doubt in the Veteran’s favor, the evidence of record demonstrates that, for the entirety of the appeal period prior to April 21, 2020, his service-connected PTSD with peristent depressive disorder has rendered him unable to obtain or maintain a substantially gainful course of employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for the service-connected PTSD with persistent depressive disorder, for the entirety of the appeal period, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU for the period prior to April 21, 2020, have been met. 38 U.S.C. §§ 501, 1155, 5107; 38 C.F.R. §§ 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1968 to December 1969. The current appeal before the Board of Veterans’ Appeals (Board) arose from March 2016 and October 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the March 2016 decision, the RO granted service connection for PTSD and awarded a 50 percent rating, effective August 12, 2015, for this disability. In the October 2016 decision, the RO denied a TDIU. In December 2018, the Board remanded the higher rating claim for PTSD and the claim for a TDIU to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In a July 2020 rating decision, the AOJ increased the disability rating for PTSD to 70 percent, effective April 21, 2020. The AOJ also granted entitlement to a TDIU, effective April 21, 2020. As entitlement to a TDIU was not granted for the entire appeal period under consideration, the issue of entitlement to a TDIU prior to April 21, 2020, remains on appeal before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Rating for PTSD Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it is denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that his PTSD symptoms are severe enough to warrant a higher initial rating for the entire appeal period. For reasons indicated below, the Board finds that an increased rating of 70 percent, but no higher, is warranted for the entire period on appeal. The Veteran’s service-connected PTSD with persistent depressive disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is 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; memory loss for names of close relatives, own occupation, or own name. Id. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that, with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), that ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Federal Circuit held that a veteran may qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or other symptoms of similar severity, frequency, and duration. Turning to the evidence of record, VA mental health treatment records dated since September 2015 reflect the Veteran’s reports of worsening depression symptoms and ongoing sleep impairment, including nightmares. An October 2015 report noted the Veteran’s elevated chronic risk of suicide, and his chronic history of suicidal ideation. The Veteran was afforded an initial VA PTSD examination in January 2016. The examiner noted that the Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, and suicidal ideation. At the time of examination, the Veteran complained of suffering from a chronically anxious and dysphoric mood, and he displayed a restricted range of affect. He admitted to having suicidal ideation as recently as six months prior to the examination. The examiner assessed that the Veteran appeared to suffer from moderate social, emotional, and occupational impairment as a result of PTSD and depression symptoms. Subsequent VA examination in August 2016, also revealed that the Veteran lived an isolated lifestyles since divorcing his wife in 2008 and that he admitted to not speaking with his son in 13 years. He additionally reported having no close friends and that he had anger control problems toward customers while working as a self-employed plumber. He also reported having had concentration problems at work that led to difficulties meeting deadlines and noted that he had retired in 2007. The examiner noted substantially similar symptoms associated with the Veteran’s PTSD and depression as those noted in the January 2016 VA examination report. The examiner concluded that the Veteran suffered from very severe social impairment and moderate to severe occupational and emotional impairment as a result of his PTSD and depression symptoms, and that he lived an extremely isolated lifestyle, having no friends, no contact with family members, and belonging to no groups. During his July 2017 Board hearing, the Veteran asserted that his PTSD symptoms had increased in severity since his prior examination. He affirmed having significant sleep impairment, and noted the effects of his PTSD symptom on his life, having been divorced three times, having been through bankruptcy, and losing his home and ending up homeless. He additionally reported a history of being suicidal, and enduring depression symptoms for which he took daily medication. The Veteran was most recently afforded a VA examination in April 2020. In addition to PTSD symptoms noted in the prior VA examination reports, the examiner noted that the Veteran had difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner specifically remarked that the Veteran’s PTSD symptoms had been severe since 2015, and had not significantly changed since that time, as his suicidal ideation and difficulty adjusting to work were present in 2015 as well. In a June 2020 letter in support of the Veteran’s claim, provided by his treating therapist, the therapist noted that she had been involved in the Veteran’s care since 2010 and that, during that time, his PTSD and depression had interfered with his ability to engage in day-to-day activities and had contributed to symptoms of severe depression, communication difficulties, and suicidal ideations. In an additional opinion provided by a VA examiner in October 2020, the examiner opined that the Veteran’s mental health symptoms had caused him clinically significant distress and functional impairment. The clinician concluded that the Veteran was severely impaired by his PTSD, and was considered totally and permanently unemployable from a psychiatric standpoint. After considering the evidence of record under the guiding principles and regulations set forth above, the Board finds that, while the evidence indicates that the Veteran’s severe PTSD with persistent depressive disorder has increased in severity at least minimally, the evidence supports a finding that he has met the criteria for a 70 percent rating for the entirety of the appeal period. In this regard, the evidence has established that the Veteran has experienced chronic depression, noted in practically every examination and evaluation report, which can be interpreted as near-continuous depression affecting his ability to function independently, as specifically described in the June 2020 therapist letter. The evidence also described the Veteran’s continuous struggle with suicidal ideation and impaired judgment, symptoms specifically described by the criteria for a 70 percent rating. In all, the described PTSD and depression symptoms have been found to cause deficiencies in areas such as work, family relations, and judgment, as specifically contemplated in the criteria for a 70 percent rating. Significantly, however, the Board finds that the Veteran’s collective PTSD and depressive disorder symptoms are not of the frequency, severity, and duration to cause total occupational and social impairment, as required for a 100 percent rating. Mauerhan, 16 Vet. App at 442-43; Vazquez-Claudio, 713 F.3d at 116-17. Of particular importance, the evidence has not demonstrated that the Veteran has experienced impairment in thought processes or communication, from delusions or hallucination, or that he has exhibited grossly inappropriate behavior or an inability to perform activities of daily living. While he has consistently been noted to have persistent suicidal ideation, he has not been shown to be in persistent danger of hurting himself or others. He has also exhibited no evidence of disorientation to time or place, or memory loss. Accordingly, although the Board has determined that a 70 percent rating is warranted for the Veteran’s service-connected PTSD with persistent depressive disorder for the entire appeal period, the preponderance of the evidence is against finding that the Veteran is entitled to a 100 percent disability rating for this service-connected disability at any point during the appeal period. Importantly, the evidence has not shown that the symptomatology associated with this disability has resulted in total occupational and social impairment. TDIU Prior to April 21, 2020 The Veteran is currently in receipt of TDIU based on service-connected PTSD with persistent depressive disorder from April 21, 2020. The Board finds that entitlement to a TDIU is warranted for entire appeal period (to include the time period prior to April 21, 2020). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to permanently render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 U.S.C. § 501; 38 C.F.R. § 4.16(a). Where entitlement is based on a single service-connected disability, the disability must be rated 60 percent or higher. In order for claimants who have two or more service-connected disabilities to qualify for a total disability rating, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant’s disabilities must be 70 percent or greater. Id. By itself, the fact that a veteran is unemployed or has difficulty obtaining employment is not enough to establish entitlement to a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Similarly, a high disability rating is also insufficient to establish entitlement to TDIU; a high disability rating represents an acknowledgment of that a veteran’s service-connected disabilities make it difficult to obtain or maintain employment. Id. “The question is whether the veteran is capable of performing the physical and mental acts required by employment.” Id. Here, the Veteran meets the schedular criteria for a TDIU. His service-connected PTSD is now rated 70 percent disabling for entire appeal period. Service connection is also in effect for tinnitus and bilateral hearing loss, rated as 10 percent disabling and as noncompensable (0 percent), respectively, since May 6, 2016. The evidence is also clear that, taken together, the Veteran’s PTSD and depressive disorder symptoms have rendered him unable to obtain or maintain substantially gainful employment. Turning to the evidence, the Veteran’s submissions, including a June 2016 VA Form 21-8940, indicate that he last worked full-time on November 1, 1997 and that he became too disabled to work as of that date, as a result of his PTSD. He reported completing two years of college and a plumbing apprenticeship. In a July 2008 letter, a former associate of the Veteran’s noted that the Veteran had difficulty dealing with the mental demands of his job as a plumber. Specifically, he had difficulty dealing with the demands of keeping a schedule and completing work on time. He also displayed extreme problems with his temper, taking from 20 to 30 minutes to recover, after losing his temper, during which time he would speak loudly and angrily, and walk off the job. These episodes occurred at least once per week. The VA examination reports acknowledge the Veteran’s difficulty dealing with others in his employment, including due to his anger, and his difficulty with concentration. The April 2020 VA examination report specifically noted that he struggled to get along with others and frequently yelled at others. In particular, the examiner noted that the Veteran’s severe symptoms affecting his employment had not changed since 2015. In the October 2020 VA opinion, the examiner specifically opined that the Veteran’s mental health symptoms caused clinically significant distress and functional impairment and that they had been a major reason why the Veteran has been unemployable since 2016. In light of the above, the Board finds that the Veteran’s service-connected PTSD with persistent depressive disorder rendered him unable to secure and follow a substantially gainful occupation for the entirety of the appeal period prior to April 21, 2020. The April 2020 VA examination report acknowledges the Veteran’s employment difficulty extending from 2015, and the October 2020 VA opinion describes the Veteran’s clinically significant distress. Also, the statement from the Veteran’s work associate clearly indicated his difficulty keeping up with the mental demands of his job. Based on these same PTSD and depressive disorder symptoms, the AOJ had determined that the Veteran was unemployable from April 21, 2020. As the record clearly reflects, however, the symptoms have essentially remained consistent over the entire appeal period. As such, the Board finds that, the evidence is at least in equipoise as to whether the Veteran’s service-connected PTSD with persistent depressive disorder rendered him unable to follow a substantially gainful occupation prior to April 21, 2020. (CONTINUED ON NEXT PAGE) Resolving reasonable doubt in the Veteran’s favor, entitlement to a TDIU is warranted for the entirety of the appeal period prior to April 21, 2020. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.