Citation Nr: 21012889 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-19 103 DATE: March 5, 2021 ORDER A 70 percent rating for PTSD from January 3, 2017 is granted, subject to the law and regulations governing the award of monetary benefits. A rating in excess of 70 percent for PTSD is denied. A total disability rating based on individual unemployability (TDIU) is granted, effective January 3, 2017, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. From January 3, 2017, the date of receipt of the Veteran’s claim for increased compensation for PTSD, the Veteran’s symptoms and overall impairment caused by his PTSD more nearly approximated occupational and social impairment with deficiency in most areas, but total occupational and social impairment has not been shown during the course of the appeal. 2. The Veteran was shown to be unable to obtain or maintain substantially gainful employment as of January 3, 2017. CONCLUSIONS OF LAW 1. From January 3, 2017, the criteria for a rating of 70 percent for PTSD, but no higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Diagnostic Code 9411. 2. The criteria for a TDIU were met January 3, 2017. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1967 to March 1968. The Board finds that the issue of entitlement to TDIU has been raised by the record; see Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, on VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated that he was unable to obtain substantially gainful employment, in part, because of his service-connected PTSD and hearing loss. See VA Form 21-8940, received in January 2017. These matters were most recently before the Board in November 2019. At that time, the Board remanded the appeal, in part, to have the Agency of Original Jurisdiction (AOJ) schedule the Veteran for a VA examination to determine the nature and severity of his PTSD. VA examined the Veteran in December 2019. A copy of the examination report is of record. Thus, the requested development has been accomplished and the matter has returned to the Board for further appellate consideration. By a July 2020 rating acton, the Regional Office (RO) granted an initial 70 percent rating to the Veteran’s PTSD and entitlement to TDIU. Each award was assigned an effective date of December 9, 2019, the date of a VA examination report reflecting an increase in severity of the Veteran’s PTSD and when he met the schedular criteria for a TDIU rating. i.) Entitlement to a rating in excess of 50 percent for PTSD for the period prior to December 9, 2019, and in excess of 70 percent therefrom. All psychiatric disabilities are evaluated under a general rating formula for mental disorders under VA’s Schedule for Rating Disabilities. 38 C.F.R. section 4.130, Diagnostic Code (Code) 9411. Under the general rating formula, a 50 percent rating is assigned when a psychiatric disability causes 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when a psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. Id. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court’s interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F. 3d 1318, 1326 (Fed. Cir. 2004). More recently, in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the Federal Circuit stated that “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.” Although the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of [occupational and social] impairment.” Id. The Board finds that the evidence is at least in equipoise and will resolve reasonable doubt in the Veteran’s favor and award a 70 percent rating for his PTSD for the period from January 3, 2017, the date VA received the Veteran’s claim for increased compensation for this disability. The Board finds that the weight of the evidence is against an award in excess of 70 percent for PTSD for the period from January 3, 2017. For the period from January 3, 2017, the Board finds that the Veteran’s PTSD symptoms more nearly approximated the frequency, severity, and duration of symptoms ratable at the 70 percent disability evaluation. In this regard, the evidence of records for the prescribed period contains conflicting evidence as to the Veteran’s reports of suicidal ideation, criteria that is commensurate with a 70 percent rating under the applicable rating criteria. 38C.F.R. §4.130, Diagnostic Code 9411. For example, just prior to the beginning of the appeal period, the Veteran reported that he experienced suicidal ideation two (2) to three (3) times a month. See December 2016 statement, submitted by the Veteran to VA. Conversely, when examined by VA in February 2017, the Veteran denied having had any suicidal ideation. See PTSD Disability Benefits Questionnaire, signed in February 2017, at page (pg.) 5)). Yet, when interviewed via telephone by R. G., a Certified Rehabilitation Counselor, just over a month later in March 2017, the Veteran reported having experienced suicidal ideation two (2) to three (3) times a month. Notably, the United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). In addition, for the prescribed period, the evidence of record, notably the February 2017 VA examination report and report, authored by R. G., show that the Veteran exhibited some symptoms of a higher rating, such as impaired impulse control, irritability, suicidal ideations, and difficulty controlling his anger. As such, and with resolution of doubt in the Veteran’s favor, the Board finds that a disability rating of 70 percent is granted for PTSD from January 3, 2017. The Board must now determine if a disability rating in excess of 70 percent is warranted for PTSD for the period from January 3, 2017. In this regard, the Board notes that in accordance with Mauerhan and Vazquez-Claudio, the Board recognizes that the Veteran’s PTSD produces a wide range of symptoms; however, there has been no evidence of total occupation and total social impairment to warrant a 100 percent rating. Specifically, the Veteran reported that he remained married to his wife of 50 years, and that they had just returned from a vacation together. The Veteran reported that he self-isolated but that was primarily a result of his hearing difficulties, not his PTSD. None of the evidence of record, shows that the Veteran’s PTSD causes “total” occupational and “total” social impairment, which is required by the 100 percent criteria. 38 C.F.R. § 4.130. This is not to minimize the impact of the Veteran’s PTSD, but a 70 percent rating is indicative of significant impairment. For example, a 70 percent rating contemplates the inability to establish and maintain effective relationships. Here the Veteran has maintained a relationship for more than 50 years which suggests some level of social engagement greater than total social impairment. Accordingly, a 70 percent rating is granted for PTSD for the period from January 3, 2017, but a rating in excess thereof is denied. ii.) Entitlement to a TDIU for the period prior to December 9, 2019. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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). Here, the Veteran was initially awarded TDIU from the date his 70 percent rating was assigned for PTSD. Here, this decision grants the 70 percent rating from the date the Veteran’s claim for a TDIU was received, January 3, 2017. As such, the Board concludes that TDIU should be assigned as of the date of receipt of the claim, January 3, 2017. To that end, the claim is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.