Citation Nr: 21012662 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 19-02 314 DATE: March 4, 2021 ORDER From May 19, 2017, entitlement to an increased evaluation of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) is granted, subject to the law and regulations governing the payment of monetary benefits. From May 19, 2017, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From May 19, 2017, the Veteran’s symptoms of PTSD are characterized by occupational and social impairment with deficiencies in most areas. 2. From May 19, 2017, the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From May 19, 2017, the criteria for entitlement to an increased evaluation of 70 percent, but not greater, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From May 19, 2017, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from February 2003 to July 2009. He is a Veteran of the Gulf War Era. He served in Iraq from October 2004 to October 2005 and from August 2007 to November 2008. He received the Combat Infantry Badge in addition to other commendations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2019 at which time the Board denied entitlement to an increased rating in excess of 50 percent for the Veteran’s service-connected PTSD. In September 2020, the parties filed a Joint Motion for Partial Remand (JMPR) which was granted by the United States Court of Appeals for Veterans Claims (Court) on September 29, 2020. Finally, the Board notes that the Board previously remanded issues of entitlement to a rating in excess of 10 percent for lumbar strain, entitlement to service connection for a respiratory disorder, and entitlement to TDIU in its prior decision, and following the issuance of a supplemental statement of the case as to those claims, the Veteran timely opted into the higher-level review lane of the Appeals Modernization Act (AMA) in July 2020. Despite the fact that the issue of entitlement to TDIU was among those issues, the Board finds that such action does not preclude it from addressing the issue as an included claim within the Veteran’s claim for increased rating under the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), and the Board has therefore added it as an additional matter for current appellate review. 1. Entitlement to an increased evaluation in excess of 50 percent for PTSD Increased Rating Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). In relevant part, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped form of 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; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating. 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; associated 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); inability to establish and maintain effective relationships, a 70 percent rating. 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, a 100 percent rating. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase 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). Analysis The Veteran filed a claim for service connection for PTSD on August 10, 2015. A December 2015 rating decision granted service connection with an evaluation of 30 percent effective July 31, 2014, one year prior to the date of claim. On May 19, 2017, the Veteran filed a VA Form 21-526EZ seeking an increased rating for his service-connected PTSD. In a December 2018 rating decision, a Decision Review Officer granted an increased rating for the Veteran’s PTSD to 50 percent disabling, effective May 19, 2017. The Veteran seeks an evaluation in excess of 50 percent for PTSD. As noted above, in September 2019, the Board previously denied the Veteran’s claim of entitlement to an increased rating in excess of 50 percent. In September 2020, the parties filed a Joint Motion for Partial Remand (JMPR) requesting that the Court vacate that portion of the September 2019 decision that denied the Veteran’s claim of entitlement to an increased rating for PTSD, rated as 50 percent disabling. The parties agreed that the Board failed to provide an adequate statement of reasons or bases as to why an increased rating in excess of 50 percent for PTSD was not warranted. Thompson v. Gober, 14 Vet. App. 187, 188 (2000). The Board did not adequately address relevant evidence as to the Veteran’s level of occupational and social impairment due to PTSD. Specifically, the Board failed to adequately address whether the Veteran’s symptomatology was of similar severity, frequency, or duration to those symptoms contemplated by the criteria for an increased rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Court granted the parties’ JMPR on September 29, 2020. Pursuant to the Court’s remand, the Board will begin its analysis by reexamining the evidence of record. The Board notes that while certain symptoms must be present in order to establish the diagnosis of PTSD, it is not the symptoms but their effects that determines the level of impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Board must address the severity, frequency, and duration of the Veteran’s symptoms. On May 19, 2017, in addition to filing a claim for an increased rating for PTSD, the Veteran filed a VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability, stating that his PTSD symptoms made him “unable to cope with being away from family and deal with stressors of the job and unable to deal with anger issues and stress triggers such as loud sharp noises like impacts, radio chatter, and crashing of the box cars.” The Veteran was afforded a VA examination in June 2017. The examiner found that the Veteran’s symptoms did not meet the criteria for a diagnosis of PTSD and diagnosed “other specified trauma or stressor-related disorder.” The examiner noted that the Veteran was last employed for three years as a conductor with a railroad, until May 2015. He stated the noise in the train yard was too much for him to tolerate. Prior to that employment, the Veteran reported that he had difficulty finding a job. The Veteran reported that he completed requirements in 2009 to qualify for consideration for a law enforcement job. He applied to nine police departments but was told he had not been back from a combat zone in Iraq long enough to have adjusted to civilian life. He was not offered a job. After he left the railroad job, the Veteran continued to have difficulty obtaining a job. He applied to 157 jobs and received three interviews. In the interviews he was asked about his time in Iraq and the Veteran believes that formed the basis of him being ruled out as an applicant. With the first interview, he was given an internship in December 2015 but after seven weeks he was not hired. With the second interview, he was told the position he was hired did not exist. With the third interview, he was told his manner of speech was too fast and precise to connect with Veterans as a job recruiter. The examiner noted that a June 2012 mental health note indicated that the Veteran was referred for evaluation for PTSD on the recommendation of his attorney because the Veteran’s ex-wife, during a custody dispute, stated that he was a violent person because he has PTSD. His PTSD screen was negative. The Veteran stated that he was diagnosed with ADD as a child and reported “incomplete thoughts during discussions and can’t multi-task” which he attributed to residuals of ADD. He reported poor short-term memory. He reported depressed mood of 7 or 8 on a scale of 1-10. He stated that he sleeps 2-4 hours per night and it takes him 4-4.5 hours most nights to go to sleep. The Veteran reported violent dreams when he would “literally start swinging fists in my sleep.” He stated that he has come close to hitting his fiancé and children in his sleep. Symptoms noted by the examiner included persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; exaggerated startle response; sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep); suspiciousness; and chronic sleep impairment. The Veteran reported that he has not spoken to his parents since he and his second wife divorced and stated that “I don’t think my parents believe in PTSD.” He stated that “My entire family stopped talking to me.” In a March 2018 VA mental health counseling record, the clinician noted that the Veteran had no support from extended family and stated “My entire family has dumped me.” In May 2018, the Veteran’s representative submitted statements by the Veteran and his fiancé, along with his argument that the Veteran’s symptoms described therein and in other evidence of record indicates that the Veteran’s symptoms more closely approximate a higher rating (at the time rated 30 percent disabling). The Veteran stated that “Most days are exhausting.” He stated that he sleeps between two and six hours a night. “It’s a constant struggle to get through the darkness.” “I would love to be able to get up and go about a normal work day like everyone else, but my PTSD makes that impossible.” “Sometimes I think it would have been better if I hadn’t made it back, and had died with my friends over there.” The Veteran stated that when he goes to bed at night, all of the negative thoughts he has during the day rush to his mind and he “cannot shut it off.” Sometimes ‘he breaks down into tears for no reason.” The Veteran stated that he has nightmares and sometimes becomes violent in his sleep. The Veteran stated that he is angry all the time and the smallest things set him off for the entire day. He stated that his fiancé says he is “a trigger just waiting to be pulled.” He used to work for the railroad but stated that the loud noises and radio sounds would bring him back to combat and he had to leave that job. He finds himself in tears daily; sometimes due to a motivational video or pictures and other times it’s remembering his dead buddy in Iraq. He reported that he gets agitated just by someone standing too close to him in the supermarket. He stated that phone rings sound like a mortar alarm and his heart races. His fiancé helps him when he is in public and starts to panic because he encountered a trigger. When he needs to fill out paperwork and can’t handle the stress, she is there for him. He stated that when he was going to school he got into arguments often in class. The Veteran stated he has a few acquaintances but no really good friends. Making and keeping friends is difficult. He has a hard time communicating because he tends to go off topic, the other person becomes confused, and he gets agitated. His family no longer talks to him and called him irrational and delusional after he left his second wife. He is no longer invited to family functions and holidays. He stated that he can be irrational and easily agitated and his family doesn’t understand why. The Veteran’s fiancé stated that they have been together for four years. She stated that every day is a struggle to avoid his triggers or to find a way to de-escalate his mood once he encounters something that triggers him. Nights are just as bad because when he actually sleeps, he often has nightmares. He talks in his sleep a lot, punches, screams, and awakens often with cold sweats. Once, he “sat up like he was ready to go on a mission.” She talks him down, and awakens him. They have to be careful about the movies they watch as some give him horrible nightmares where he screams and “punches in the air.” When they first met, every time her phone went off, it was a trigger. His mood would instantly change, and he would then look panicky and his body would go rigid. Going out in everyday life can be a struggle with all the things that trigger his moods. They shy away from group events because he is always tense and on guard. When going to the mall he studies the maps so he knows all of the exists or “hot zones” to avoid. She tries to keep constant contact with him in public by holding his hand or keeping her hand on his back to try to keep him grounded. She helps him with things like paperwork because he stresses out and panics. She stated that when he encounters something that stresses him, it is impossible to pull him out of his mood. When these moods are triggered, he remains like that for the entire day, until he sleeps. She stated that the Veteran has a hard time trusting people. He doesn’t have any communication with anyone in his family. “I am basically all he has.” In December 2018, the Veteran was afforded another VA examination. The examiner found that the Veteran’s symptoms “clearly” meet the criteria for PTSD. The Veteran reported that he was exposed to small arms fire, IEDs, rockets, and mortars while deployed to Iraq. He also witnessed the death of a friend shot by a sniper and witnessed several soldiers being killed by a suicide bomber. The examiner noted that the Veteran’s PTSD symptoms include sleep disturbance, nightmares once per week to once per month, daily intrusive thoughts related to combat experiences, fatigue, hypervigilant thoughts and behaviors, exaggerated startle response and avoidance of stimuli associated with military experiences. Other symptoms were noted as daily frustration/irritability and variable self-esteem, and reduced energy and reduced sleep. Other symptoms were noted as frequent worry about a number of life issues, inability to control the worry, and physical symptoms related to the worry (i.e., increased heart rate, shakiness, and dyspnea). The examiner noted recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s); avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., "I am bad,: "No one can be trusted,: "The world is completely dangerous,: "My whole nervous system is permanently ruined."); feelings of detachment or estrangement from others; hypervigilance; exaggerated startle response; sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep; depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran’s working memory is somewhat impaired based on his inability to recall previously presented information. The examiner found that the Veteran’s mood symptoms impact his ability to function effectively. The Veteran reported a good relationship with his fiancé with “ups and downs” and with his three children. He denied having friends and indicated that he was currently unemployed. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment with reduced reliability and productivity due to such symptoms 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; and difficulty in establishing and maintaining effective work and social relationships, warrants a 50 percent rating. 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; impairment of 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); and inability to establish and maintain effective relationships, warrants a 70 percent rating. 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, warrants a 100 percent rating. 38 C.F.R. § 4.130 The Board finds that the evidence shows the Veteran’s PTSD symptoms most closely approximate a 70 percent evaluation for PTSD, with occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, effective May 19, 2017, the date of his application for an increased rating. VA examiners noted that he has difficulty maintaining work and family relationships, and that his mood impacts his ability to function effectively. The Veteran’s work history and his efforts to find a job have been negatively impacted by his symptoms of PTSD. Despite training, he was unable to find a job in law enforcement. He was unable to continue his employment with the railroad due to noise triggers causing symptoms. He has been unable to find and maintain employment since May 2015. Unprovoked irritability has caused problems in his personal life, at work, and at school. The statements provided by the Veteran and his fiancé indicate that his PTSD symptoms affect his ability to function independently, appropriately and effectively and that he has difficultly adapting to circumstances that he finds stressful. He experiences sleep disturbances, sometimes lashing out at night physically. He has no relationship with his family, due to sometimes irrational behavior and easily agitated mood. He has difficulty communicating with others as he veers off topic (speech intermittently illogical, obscure, or irrelevant), causing others to become confused, which in turn causes him to feel agitated. The Board finds that the Veteran’s statement and his fiancé’s statement, when viewed in context with all of the evidence of record, are highly probative as to the severity, frequency, and duration of Veteran’s PTSD symptoms, and the impact on his life. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Veteran and his fiancé are competent to relate the symptoms as experienced and observed and the Board finds them credible. Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007). These statements provide insight into the everyday life of the Veteran, as it is impacted by his PTSD symptoms. Finally, the Board notes the Veteran’s statement that “Sometimes I think it would have been better if I hadn’t made it back, and had died with my friends over there” is indicative of passive suicidal ideation, a symptom addressed in the 70 percent rating criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Veteran’s symptoms do not more closely approximate total occupational and social impairment. While he has no relationship with other family members, the Veteran maintains relationships with his wife and children and enjoys some hobbies with his wife. He also volunteers occasionally. The evidence does not show 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. 2. Entitlement to a total disability rating based on individual unemployability As the Board is granting a 70 percent disability rating for PTSD, the Veteran’s combined disability rating is now 80 percent, and he meets the schedular rating for a TDIU. The Board will therefore take jurisdiction of the Veteran’s TIDU claim under Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court additionally held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more such 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. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as "one disability." It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A TDIU will be found when there is any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) as having two components: one economic and one noneconomic. The economic component was defined as an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In determining whether unemployability exists, consideration may be given to the veteran's level of education, training, and previous work experience, but may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The central inquiry for consideration is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 529 (1993). Here, as of May 19, 2017, the Veteran’s service-connected PTSD is rated 70 percent disabling, lumbosacral strain is rated 10 percent disabling, and tinnitus is rated 10 percent disabling. The combined rating is 80 percent. The Veteran therefore meets the schedular requirement of 38 C.F.R. § 4.16(a) as of May 19, 2017. The crux of the appeal is thus whether the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. A December 2020 rating decision denied entitlement to a TDIU; it included a favorable finding that the Veteran was not currently working and has not worked since May 13, 2015. The RO found that the Veteran’s service-connected lumbosacral strain impacted his ability to work but that the Veteran was capable of sedentary work. However, the RO did not address whether the Veteran’s PTSD symptoms impacted his ability to obtain and maintain substantially gainful employment. Addressing that issue, the Board notes that the Veteran reported that after he was discharged from service, he completed the requirements in 2009 to qualify for consideration for a law enforcement job. He applied to nine police departments but was told he had not been back from a combat zone in Iraq long enough to have adjusted to civilian life. The Veteran was last employed as a conductor with the Kansas City Southern Railroad for three years, which employment ended on May 13, 2015. On May 19, 2017, the Veteran filed a VA Form 21-8940 Application for Increased Compensation Based on Unemployability, stating that his PTSD symptoms made him “unable to cope with being away from family and deal with stressors of the job and unable to deal with anger issues and stress triggers such as loud sharp noises like impacts, radio chatter, and crashing of the box cars.” This led to him leaving his railroad job. Thereafter, he stated that he applied to 157 jobs and received three interviews. In the interviews they asked questions about his time in Iraq and the Veteran believes his responses formed the basis of him being ruled out as an applicant. He was not offered a job. The Veteran has difficulty interacting with others due to irritable mood and intermittently irrelevant and off-topic speech. His symptoms, including unprovoked irritability, have caused problems at his work. VA examiners noted that his mood impacts his ability to function effectively. He reported that he becomes agitated if someone stands too close to him. He stated that when a phone rings it sounds like a mortar alarm and triggers his symptoms. He is unable to complete paperwork without assistance. Given the Veteran’s psychiatric and physical limitations, and resolving all doubt in his favor, the Board finds the most competent and probative evidence of record demonstrates that from May 19, 2017, the Veteran's service-connected disabilities precluded him from being able to secure or follow a substantially gainful occupation. Entitlement to a schedular TDIU is therefore warranted, effective May 19, 2017. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.