Citation Nr: 21013195 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-25 811 DATE: March 8, 2021 ORDER Entitlement to an evaluation of 70 percent for post-traumatic stress disorder (PTSD), but no higher, prior to July 11, 2019 is warranted. Entitlement to an evaluation of 100 percent for post-traumatic stress disorder (PTSD) from September 28, 2020 is warranted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 11, 2019 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) since July 11, 2019 is dismissed. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, prior to July 11, 2019, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas; it was not manifested by total occupational and social impairment. 2. Resolving all doubt in the Veteran’s favor, since September 28, 2020, the Veteran's PTSD has manifested by total occupational and social impairment. 3. Resolving all doubt in the Veteran’s favor Prior to July 11, 2019, the evidence indicates that the Veteran was unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 4. With the action on the increased rating issue taken, the TDIU issue is moot as of July 11, 2019. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 70 percent for post-traumatic stress disorder (PTSD) prior to July 11, 2019 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for an evaluation of 100 percent for post-traumatic stress disorder (PTSD) from September 28, 2020 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. Prior to July 11, 2019, the criteria for entitlement to a TDIU were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 4. The claim for TDIU for the period after July 11, 2019 is dismissed. 38 U.S.C. § 7105; 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 June 1991 to September 1994. In a September 2013 rating decision, service connection for PTSD was granted with a 50 percent evaluation effective August 12, 2002. The Veteran timely filed a Notice of Disagreement (NOD) asserting entitlement to a higher initial evaluation as well as raising the issue of entitlement to a TDIU based on the severity of his PTSD. These issues were remanded by the Board for further development in a September 2018 decision. In a December 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 100 percent evaluation from July 11, 2019 and a 70 percent evaluation from September 28, 2020. Entitlement to a TDIU was denied. Because a 100 percent evaluation is considered a full grant of the benefits sought, the period from July 11, 2019 to September 28, 2020 is not on appeal with regards to entitlement to an increased evaluation for PTSD. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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 Veteran is appealing the original assignment of a disability evaluation following an award of service connection for PTSD. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD has been rated as 50 percent disabling prior to July 11, 2019 and 70 percent disabling since September 28, 2020 under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Codes 9411-9440. The rating schedule provides that rating of 50 percent requires occupational and social impairment, with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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. The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as 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; and memory loss for names of close relatives, own occupation, or own name. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Entitlement to an evaluation in excess of 50 percent prior to July 11, 2019 and in excess of 70 percent from September 28, 2020 for post-traumatic stress disorder (PTSD) Turning to the record, the Veteran received treatment from a private psychiatrist who prescribed various psychiatric medications including Wellbutrin, Klonopin, and Trazadone beginning in October 2002. His private psychiatrist recommended medical leave for 30 days from work at that time. He diagnosed the Veteran with PTSD and chronic depression. During the October 2002 private evaluation, the Veteran reported nightmares, panic attacks, flashbacks, auditory and visual hallucinations, poor memory, and low energy. The psychiatrist noted that he cannot sustain social relationships and has trouble with work relationships. The Veteran maintained ongoing treatment with his private psychiatrist whereby he underwent psychotherapy as well as various medication regiments to include anti-depressants and anti-psychotic medications. During a March 2003 Decision Review Officer (DRO) hearing, the Veteran stated that he only slept a few hours per day, carried his gun with him at all times, and experienced nightmares, hallucinations, and anger. He reported that he had not returned to work since taking medical leave in October 2002 pursuant to instruction from his private psychiatrist. Beginning in March 2008, the Veteran began receiving some mental health treatment from the VA. He reported that his moods were typically irritable and dysphoric. He stated that he experienced nightmares, panic attacks and suicidal ideation. Ongoing reports were consistent with reports of nightmares, panic attacks, occasional suicidal thoughts and hallucinations, and depression. A VA treatment record from October 2008 indicated some improvement in that the Veteran reported doing fairly well and denied suicidal or homicidal thoughts or hallucinations. A treatment records from his treating private psychiatrist dated February 2009 indicate that the Veteran had nightmares and flashbacks every night and panic attacks three times per week. He reported that the Veteran had intrusive thoughts, hypervigilance, memory impairment, auditory and visual hallucinations, depression, anger, and suicidal thoughts. He stated that due to his PTSD, the Veteran is unable to sustain social or work relationships and he considers him to be permanently and totally disabled and unemployable. The Veteran underwent a VA examination for PTSD in June 2012. The examiner made a diagnosis of malingering (of cognitive and psychiatric symptoms) and stated that the Veteran demonstrated clear and unmistakable evidence of intentional feigning of cognitive deficits and exaggeration/malingering of psychiatric symptoms on multiple symptom validity evaluation procedures. He noted that the presence of malingering behavior does not preclude the existence of a true psychiatric condition or associated cognitive issues but does obviate any ability by the examiner to reasonably determine the severity, extent or functional impact of any claimed psychiatric symptoms or stressors. The Veteran underwent another VA examination for PTSD in June 2013 whereby the examiner confirmed the Veteran’s diagnosis of PTSD. The examiner noted occupational and social impairment with deficiencies in most areas, such as work, school family relations, judgment, thinking and/or mood. The Veteran reported symptoms to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory impairment, difficulty in understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, anhedonia, social isolation, negative ruminations, and problems with focus and concentration. The examiner noted that the Veteran should follow-up with a mental health clinician to receive further treatment. In a December 2018 VA treatment record, the Veteran reported an increase in anxiety and paranoia with his PTSD and that he felt like he was being followed at that time. He denied any suicidal or homicidal ideations. The Veteran was afforded another VA examination for PTSD in July 2019. The examiner stated that the Veteran’s symptoms of PTSD and depression are chronic and severe. He noted panic attacks nearly every day with hypervigilance to the point of delusion. Other symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, impairment of memory, impaired judgment, disturbances in motivation and mood, suicidal ideation, and persistent delusions or hallucinations. He reported functional impairments that impact occupational activities including emotional instability, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, chronic sleep impairment, disturbances of motivation and mood, impaired judgment, difficulty in understanding complex commands, and impaired memory. The examiner reported total occupational and social impairment. Based on this July 11, 2019 VA examination, the Veteran was granted a 100 percent evaluation effective on the date of examination in a December 2020 rating decision. The Veteran underwent another VA examination for PTSD in September 2020 whereby his diagnosis of PTSD was confirmed. The examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At this time, he reported being prescribed Trazadone and Valium. He reported symptoms including depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, inability to establish and maintain relationships, difficulty adapting to stressful circumstances, and impaired impulse control. The examiner noted no evidence of psychotic thinking but that his insight and judgment were poor. The Veteran denied suicidal or homicidal ideation. Based on this September 28, 2020 VA examination, the Veteran was assigned a 70 percent evaluation effective on the date of examination in a December 2020 rating decision. Based on a review of the record including the extensive medical evidence, prior to July 11, 2019, the Board concludes with resolution of doubt in the Veteran’s favor, that a higher evaluation of 70 percent is warranted. An examination of the findings reveal that the Veteran was diagnosed with severe PTSD and began receiving private treatment from a private psychiatrist in 2002. The Board finds the available VA and private examiners’ opinions since that time, and especially since 2008, consistently report findings of the following: depressed mood; anxiety; suspiciousness; hypervigilance; intrusive thoughts and nightmares; sleep impairment; anxiety; memory loss; some suicidal ideation; auditory and visual hallucinations; frequent panic attacks; and anger without provocation. The Board also acknowledges June 2012 examiner’s diagnosis of malingering; however, the Board finds that the Veteran has consistently reported the severity and nature of his psychiatric symptoms to his private psychiatrist as well as other VA examiners since 2002. The Board finds the medical opinions noting occupational and social impairment with deficiencies in most areas diagnosing the Veteran's ability to function in a work environment as extremely poor with a very limited ability to follow work rules or associate with others to be probative and compelling when considering the severity of the Veteran's social and occupational impairment. Further, although the Board acknowledges that the September 2020 VA examiner noted occupational and social impairment with deficiencies in most areas, the severity of symptoms and functional impact on the Veteran’s social and occupational activities were largely consistent with the July 2019 VA examination which noted total occupational and social impairment. Further, the Veteran did not report any improvement of symptoms and the Board finds it unlikely that he experienced notable improvement in social and/or occupational functioning from July 2019 to September 2020 given the Veteran’s long history of severe impairment. Therefore, based on the evidence of the record and resolving all doubt in the Veteran's favor, the Board finds that the level of severity of the Veteran's PTSD satisfy the criteria for higher disability evaluations and the Veteran's claim for an increased 70 percent rating prior to July 11, 2019 and a 100 percent rating thereafter is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) Given the increased rating to 100 percent effective July 11, 2019, the issue of a TDIU is moot as of that date. Any award of special monthly compensation warranted will be made with the effectuation of the above. The earlier period remains on appeal. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Here, the Veteran satisfies the percentage requirements. Pursuant to this decision, the Veteran is awarded a 70 percent evaluation for PTSD from August 12, 2002 to July 11, 2019. He also has a 10 percent disability rating for a left shoulder disability effective December 1998. The question is therefore whether these service-connected disabilities prevent the Veteran from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him prior to July 11, 2019. In his September 2014 Notice of Disagreement (NOD) with the initial 50 percent evaluation for PTSD, the Veteran asserted that he was unable to work due to his PTSD symptoms. The Veteran reported in his December 2020 Application for Increased Compensation Based on Unemployability that he was employed as a tire builder at Bridgestone Firestone from 1995 to 2003. He reported that he left his job due to his disabilities. The Veteran submitted a medical record from October 2002 from his private psychiatrist stating that he needed to go on medical leave for at least one month. It does not appear that the Veteran returned to work or became employed again after that time. Correspondence from his employer verified that the Veteran left his job voluntarily and received short-term disability payment beginning January 2003. As noted above, the Veteran underwent numerous VA examinations where he was consistently found to be socially and occupationally impaired in most areas. His symptoms were noted to be severe and limiting on his ability to have social interactions or function in any work-like setting. All examiners concluded that his PTSD significantly impacted his ability to work. As noted above, in a February 2009 treatment record from his treating private psychiatrist, he opined that the Veteran is unable to sustain social or work relationships and he considers him to be permanently and totally disabled and unemployable. The Board further notes that the Veteran receives benefits from the Social Security Administration (SSA). In July 2003, the Veteran’s treating private psychiatrist reported to the SSA that the Veteran “absolutely can’t work at this time” due to anxiety that is largely interpersonally focused. The SSA found that the Veteran has been disabled since October 1, 2002 due to anxiety related and mood disorders. While the Board emphasizes that it is not bound by any SSA determination regarding disability benefits when rendering its own decision on entitlement to TDIU, it does shed light on the Veteran's ability or inability to work and which disabilities significantly impact that inability. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran's private psychiatric records as well as various VA examinations, and the functional effects of the Veteran's service-connected PTSD as they relate to his level of education and prior occupational experience, the Board is persuaded that it is as likely as not that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities prior to July 11, 2019. Resolving reasonable doubt in his favor, a TDIU prior to July 11, 2019 is granted.   In arriving at this conclusion, the Board intimates no opinion, either legal or factual, as to the appropriate effective date of the award. That matter will be addressed by the AOJ when the award is effectuated. That matter would be subject to appeal if the Veteran or his representative disagree with the effective date assigned. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.