Citation Nr: 21012542 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 19-00 770 DATE: March 4, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for service-connected PTSD is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s PTSD and associated acquired psychological disabilities have been productive of social and occupational impairment with deficiencies in most areas throughout the period on appeal. 2. The Veteran’s service-connected PTSD prevented him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 70 percent for service-connected PTSD are not met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.303, 4.130. 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1943 to March 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in November 2015 and the appellant is his surviving spouse. The appellant testified before the undersigned at a January 2021 hearing and a transcript is associated with the claims file. 1. Entitlement to an evaluation in excess of 70 percent for service-connected PTSD is denied. Prior to his death, the Veteran contended that he is entitled to an evaluation in excess of the currently assigned 70 percent rating for his PTSD due to an inability to work. See December 2014 Claim. VA Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula For Mental Disorders, to include PTSD, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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 70 percent evaluation 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; 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’“ Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. 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. 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating the level of disability, it is also necessary to evaluate such from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Symptomatology attributed to a nonservice-connected disability cannot be differentiated from symptomatology attributed to a service-connected disability unless medical evidence does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In the absence of such medical evidence, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis After review of the entire record, the Board finds that the severity, frequency, and duration of the Veteran’s PTSD and other psychological symptoms at the time of his December 2014 claim for an increase and until his death show his disability was productive of social and occupational impairment with deficiencies in most areas. At the hearing before the undersigned, the appellant testified the Veteran had absenteeism from work due to memory impairments, depression, inability to follow instructions, inability to complete tasks, and poor motivation. See January 2021 Hearing Transcript. The appellant reported the Veteran had a significant impairment in communicating with others, he neglected personal hygiene, experienced violent nightmares, and would socially isolate from others. The appellant reported that the Veteran’s memory impairments, along with his PTSD and resultant anxiety, led the Veteran to retire from his sole occupation as an upholsterer. The Veteran was assessed with dementia due to multiple etiologies but without behavioral disturbances in June 2012 and this disability is not service connected. See June 2012 Medical Record. The Veteran was examined most recently by VA in March 2015. The March 2015 VA examiner found the Veteran’s symptoms to be at a level manifesting an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. This assessment is consistent with a prior examination in January 2014. See January 2014 VA Examination. The March 2015 VA examination shows impairments in social and occupational functioning due to PTSD as manifested by symptoms of chronic passive suicidal ideation, neglect of personal appearance and hygiene, impairment of short and long-term memory, agitation, poor motivation, and decreased efficiency due to insomnia. The examiner listed several memory impairments as differentiated from the Veteran’s PTSD, which were attributed to his major neuro-cognitive disorder, but the examiner also listed other memory impairments and inability to orient to place or time as symptoms of the Veteran’s service-connected PTSD. See March 2015 VA examination. The examiner noted moderate to serious impairment in occupational functioning in sedentary or physical employment due to symptoms of PTSD. The Veteran’s non-service-connected dementia was productive of a profound impairment in memory and cognition and was described as severe and significantly disabling, while the Veteran’s service-connected PTSD was found to be moderate in severity and productive of occupational and social impairment with deficiencies in most areas. The Veteran’s affect was congruent with his mood on examination in March 2015 and his insight and judgment were grossly intact. Here, the Veteran undoubtedly had severe symptoms of PTSD that were compounded by a non-service-connected major neurocognitive disorder. The March 2015 examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss and memory loss affecting short and long-term memory, disturbances of mood and motivation, difficulties establishing and maintaining effective relationships and in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene. The Board finds that the Veteran exhibited occupational and social impairment with deficiencies in most areas, including in his ability to function independently. The level of impairment associated with the Veteran’s PTSD most closely corresponds to that of a 70 percent disability compensation rating. Although the Veteran’s symptoms of PTSD and the resultant impairments were severe, these difficulties are reflected by the 70 percent evaluation. In this respect, the Veteran was able to maintain a supportive relationship with his wife, had appropriate and congruent affect and mood when examined in March 2015, and he had grossly intact judgment and insight prior to his death. The Board also notes the lack of other indicia of total occupational and social impairment as reflected by the criteria listed above. Accordingly, the Veteran’s claim for an evaluation in excess of 70 percent for service-connected PTSD is denied. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. The Veteran contends his PTSD resulted in his inability to obtain substantial gainful activity; he met the schedular threshold criteria required for a TDIU under 38 C.F.R. § 4.16(a) from June 22, 2009. The Veteran filed a claim for TDIU in December 2014. See December 2014 Claim. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is unable, by reason of their service-connected disabilities, to secure or follow a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. This involves consideration of two components: an economic component involving an occupation outside of a protected environment earning more than marginal income, and a non-economic component involving the Veteran’s ability to secure and follow such employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). VA may consider the Veteran’s level of education, special training, and previous work experience in making this determination, but may not consider age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). The Board finds that the Veteran is entitled to a TDIU beginning on the date of his December 2014 claim. An earlier effective date is not warranted because the Veteran did not become so disabled as to be unable to obtain or maintain substantial gainful activity within the one year prior to his December 2014 claim for increase. See 38 C.F.R. § 3.400. The Veteran’s December 2014 VA Form 21-8940 shows he last worked in November 1987. As noted above, the Veteran worked as an upholsterer from discharge to his retirement, his surviving spouse reported he did not complete high school and had no other education. The appellant submitted a January 2021 assessment from J.S., a vocational rehabilitation consultant, that found the Veteran would have been precluded from substantial gainful activity due to symptoms of PTSD. See January 2021 Opinion. J.S. provided rationale in support of their opinion, noting the Veteran’s psychological and behavioral limitations and his education would render him unable to perform the unskilled occupational work for which he was qualified. The Board finds this opinion consistent with the appellant’s January 2021 testimony and the March 2015 VA examination. Based on the above and giving any reasonable benefit of the doubt to the Veteran, the preponderance of the credible and competent evidence, including the Veteran’s lay statements and the appellant’s January 2021 testimony, indicate that the Veteran is entitled to a finding for TDIU. Giving the Veteran the benefit of the doubt, the evidence his impairments from PTSD precluded him from obtaining or maintaining a substantially gainful occupation consistent with his education and occupational experience. Entitlement to an award for TDIU effective December 19, 2014, is granted. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.