Citation Nr: 21012980 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-36 740 DATE: March 8, 2021 ORDER For the period prior to October 25, 2016, an increased 70 percent rating for the Veteran's posttraumatic stress disorder (PTSD) is granted. Prior to October 25, 2016, a total disability rating based on individual unemployability (TDIU) is granted. VETERAN’S CONTENTIONS The Veteran contends that he is entitled to a rating in excess of 30 percent for his PTSD effective May 24, 2013, the date he filed his claim. See May 2013 Statement in Support of Claim and April 2017 Notice of Disagreement. In support of his argument asserting entitlement to a higher rating and an earlier effective date, the Veteran reported that his service-connected PTSD caused significant distress and impairment in social, occupational, or other important areas of functioning. See December 2014 Notice of Disagreement. Specifically, the Veteran stated that he had a sleep impairment and that lightening scares him more than the average person. Id. Additionally, the Veteran also stated that his PTSD began to affect his full-time employment around December 2014. See November 2016 VA 27-0820 Report of General Information. The Veteran reported that he was often triggered at work and was confrontational with his co-workers. See October 2016 VA Examination. While the Veteran worked at a dock, the Veteran also reported that his sleep impairment would put the safety of others at risk due to his fatigue. Id. FINDINGS OF FACT 1. Beginning May 24, 2013, the Veteran’s PTSD was productive of deficiencies in the areas of family relations, work, judgment, thinking, and mood. 2. The Veteran has never been married and is not currently dating. See June 2014 VA Examination. The Veteran reported that he does not have contact with his two adult children. Id. The Veteran reported that he had poor emotional regulation and poor interpersonal skills with the mother of his children. See September 2016 VA Treatment Note. The Veteran testified that he did not communicate with his parents often from 2013 to 2016. See November 2020 Board Hearing Transcript pg. 7. 3. The Veteran reported that his PTSD began to affect his work in December 2014. See November 2016 VA 27-0820 Report of General Information. The Veteran stated that at work he was irritable and confrontational with others. See October 2016 VA Examination. The Veteran reported that he had a conflict at work, and he was told that he needed therapy. Id. After moving to Florida in December 2014, the Veteran reported that he had problems with keeping a job due to sleep and mood problems. Id. Due to fatigue as a result of the Veteran’s sleep impairment, the Veteran reported that he left his job at the dock because it was putting others’ safety at risk. Id. 4. The Veteran additionally endorsed irritable behavior, exaggerated startle response, hypervigilance, and reckless behavior. See June 2014 VA Examination. The Veteran reported being in roughly six to seven fights and alcohol was involved in approximately four of those fights. Id. However, the Veteran’s alcohol dependence is in remission, but he still endorsed that he still had difficulties getting along with people. Id; November 2020 Board Hearing Trans. pg. 9. 5. The Veteran additionally reported problems with concentration. See June 2014 VA Examination. The Veteran endorsed that recurrent dreams and a sleep impairment. Id. Specifically, the Veteran reported that he slept three to four hours per night. Id. 6. The Veteran endorsed that he experienced depression, anxiety, persistent negative emotions, and persistent and exaggerated negative beliefs. See June 2014 VA Examination. The Veteran also reported a reduced appetite and decreased interest in activities such as fishing, hiking and jogging. Id. 7. The June 2014 examiner reported that the Veteran’s PTSD symptoms included a depressed mood, anxiety, and a chronic sleep impairment. 8. The Veteran’s PTSD prevents him from securing and maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. Beginning May 24, 2013, the criteria for an increased rating of 70 percent for the Veteran’s PTSD disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU are met prior to October 25, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to April 1991, December 2003 to March 2005, and January 2006 to April 2007. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from a October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At the hearing, the Veteran confirmed that he is not seeking a rating higher than 70 percent for his PTSD. See also December 2016 Correspondence. 1. An increased 70 percent rating for the Veteran's PTSD is granted, effective May 24, 2013. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). By way of history, from May 24, 2013 to October 24, 2016, the Veteran’s PTSD disorder is rated as 30 percent disabling and beginning October 25, 2016 its rated as 70 percent disabling under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411. The relevant rating criteria are set forth below. Under the general rating formula for mental disorders, 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 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for 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. A 70 percent rating is assigned for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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. 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. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Here, the June 2014 VA examiner concluded that the symptoms associated with the Veteran’s PTSD were not severe enough to either interfere with occupational and social function or to require continuous medication, but that determination is not binding on the Board. As previously detailed in the Findings of Fact section, the Veteran’s PTSD disorder results in irritability, work impairment, an inability to maintain family relationships, chronic sleep impairment, and a depressed mood. See VA Examinations dated June 2014 and October 2016. When evaluating the medical evidence of record coupled with the Veteran’s lay statements, the Board finds that the record demonstrates that the Veteran’s PTSD is more severe than as determined by the VA examiner, as it impairs his family relations, his work, his mood, his thinking, and his judgment. As the Veteran experiences impairment in his ability to work, the Board finds by analogy that the Veteran would also experience impairment in the area of school, were he to attend school. Therefore, the Board finds that an increased 70 percent rating is warranted. In support of this determination, the Board references post-service treatment records, the VA examinations, and the Veteran’s lay statements which show that his PTSD is productive of symptoms associated with a 70 percent rating. See September 2016 VA Treatment Records and June 2014 VA Examination. Specifically, the Veteran reported that he does not communicate with his children and that he felt detached from others. See June 2014 VA Examination. The Veteran also reported that he felt depressed, anxious, and experienced hypervigilance. Id. The Veteran stated that he no longer hunted, fished, or jogged. Id. Moreover, the Veteran stated that beginning in December 2014, his impairment and irritability impacted his ability to work, as detailed in the Findings of Fact section above. Further, the Veteran also had symptoms that are not listed with a specific rating, specifically, sleep disturbances. The Board finds that the severity, frequency, and duration of the Veteran’s unlisted symptom of sleep disturbances more closely approximate the symptoms contemplated by a 70 percent rating, which correlate to sleep disturbances that are more severe, more frequent, and longer in duration. During his June 2014 VA examination, the Veteran stated that he averaged three to four hours of sleep per night and he endorsed recurrent distressing dreams. In sum, the Veteran’s unlisted symptom of sleep disturbances are similar in severity and frequency to those symptoms contemplated by a 70 percent rating. As noted above, the Board finds that the Veteran withdrew the issue of entitlement to a rating in excess of 70 percent for his PTSD. See December 2016 Correspondence. Based on the foregoing, the Board finds that the severity of the Veteran’s PTSD disorder symptoms warrants a 70 percent evaluation effective May 24, 2013.  2. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); see Friscia v. Brown, 7 Vet. App. 294 (1994); Beaty v. Brown, 6 Vet. App. 532 (1994); Moore v. Derwinski, 1 Vet. App. 356 (1991). However, VA may not take into account the individual veteran’s age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, this disability shall be ratable at 60 percent or more, and that, 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). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment—defined as when a veteran’s earned annual income does not exceed the poverty threshold for one person, or on a facts-found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)—shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). At the outset, the Board finds that the Veteran first met the schedular requirement for a TDIU as of October 25, 2016. Since that date, he has been in receipt of a combined 90 percent disability rating. Regarding the Veteran’s education, training, and occupational history, the record reflects that: (1) the Veteran obtained a high school diploma; and (2) he worked as an explosive technician, a spare, and in sales for a bank. See December 2016 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Moving beyond the Veteran’s education, training, and occupational history, the record contains evidence indicative of the impact of the Veteran’s service-connected PTSD on his ability to obtain and maintain substantially-gainful employment. Specifically, the Veteran stated that beginning in December 2014, his impairment and irritability impacted his ability to work, as detailed in the Findings of Fact section above. From December 2014 to September 2016, the Veteran did not maintain a job for more than one year. See December 2016 VA 21-4192 Request for Employment Information in Connection with Claim for Disability. Based on the Veteran’s lay reports and employment records, the Board finds that the Veteran was unable to maintain substantially gainful employment throughout the period on appeal, excepting the periods when the Veteran was employed full time. In light of the occupational effects of the Veteran’s service-connected PTSD—and resolving all reasonable doubt in the Veteran’s favor—the Board finds that the Veteran is precluded from obtaining and maintaining substantially gainful employment. As such, entitlement to a TDIU is warranted prior to October 25, 2016. See 38 C.F.R. § 4.16(a). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Foster 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.