Citation Nr: 21013447 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-00 777 DATE: March 9, 2021 ORDER From September 8, 2003, to October 18, 2010, entitlement to a 70 percent initial evaluation, but no higher, for service-connected PTSD is granted, subject to the laws and regulations governing payment of monetary benefits. From September 8, 2003, to October 18, 2010, entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. Affording the Veteran the benefit-of-the-doubt, the most probative evidence dated from September 8, 2003, to October 18, 2010, reflects that the Veteran’s service-connected PTSD is manifested by severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas, such as social relations, work, and mood, without total social impairment. 2. The most probative evidence reflects that the Veteran’s service-connected PTSD rendered him incapable of securing and maintaining a substantially gainful occupation from September 8, 2003, to October 18, 2010. CONCLUSIONS OF LAW 1. From September 8, 2003, to October 18, 2010, the criteria for a 70 percent initial evaluation, but not in excess thereof, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. From September 8, 2003, to October 18, 2010, 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 served on active duty in the United States Marine Corps from June 1968 to July 1968. The extended procedural history of the Veteran’s appealed issues stems from a claim received by the Department of Veterans Affairs (VA) on September 8, 2003. Most recently, the Board of Veteran’s Appeals (Board) denied the issues on appeal, among other actions, in an October 2019 decision. The Veteran appealed the Board’s denials of these issues to the Court of Appeals for Veteran’s Claims (Court). In a September 2020 Order, the Court endorsed an undated Joint Motion for Partial Remand (JMPR) executed by an attorney representing the Veteran and VA’s office of General Counsel which vacated the portions of the October 2019 Board decision that denied the issues on appeal and remanded them back to the Board with guidance and instructions. The Veteran’s appealed issues have been returned to the Board for further appellate consideration From September 8, 2003, to October 18, 2010, entitlement to a 70 percent initial evaluation, but no higher, for service-connected PTSD is granted, subject to the laws and regulations governing payment of monetary benefits. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent evaluation is warranted when there is 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; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when 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; 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Analysis At the outset, the Board observes that the Veteran was not provided a VA psychiatric examination in connection with his September 2003 initial claim for nearly 13 years. This fact paired with the retroactive nature of the eventual allowance of service connection for PTSD creates a unique situation where the Board must evaluate the service-connected disability with scant contemporaneous medical evidence and retrospective lay statements. During a psychiatric evaluation in March 2010 at an outpatient clinic, the Veteran reported a history of substance abuse and indicated he had been in drug rehabilitation inpatient facilities four times. He indicated the onset of his psychiatric difficulties had occurred following a 1991 motor vehicle accident, and the examiner noted that the Veteran has been totally disabled since that time. The Veteran also indicated he was estranged from his son and noted several occasions of suicidal ideations, including the occasional thought of shooting himself and possibly his wife. There was no specific time frame referenced with these comments and the examining healthcare provider notes these thoughts had occurred in the past but were not ongoing. During the evaluation, the examiner observed the Veteran was neatly dressed, with good interpersonal skills. He also appeared oriented, with his speech goal-directed with affect full range and appropriate for the content of his speech. The examiner advised the Veteran continue with cognitive behavioral therapy and medication management. In April 2010, the Veteran’s treating psychiatrist noted the Veteran appeared to be “somewhat more depressed.” The Veteran was also observed to be oriented and relevant, cooperative, and helpful, with his cognitive functions all intact. Suicidal ideation was noted, but as with the earlier assessment no specific time frames were noted and the examining healthcare provider noted the thoughts had occurred at some point in the past but were not ongoing. In June 2010, the Veteran was also observed to be oriented, with his speech content and processes normal. He was characterized as pleasant and goal-directed with no evidence of psychotic processes and with no evidence of suicidal ideation. In August 2010, the Veteran continued to experience significant sleep difficulties and noted the presence of nightmares and sweating on an almost nightly basis. The examiner observed the Veteran’s speech was at a slower rate and volume; his affect was mostly dysphoric; his judgment was possibly impaired; and his insight was possibly limited. The next evidence of psychiatric symptoms is dated in October 2010, when the Veteran fired a gun at his wife in their kitchen. This evidence serves that the basis for the 70 percent initial evaluation assigned from October 18, 2010, and thus, it is outside the appeal period pertinent to the matter at hand. As agreed by the parties in the Court-endorse JMPR, the above recounts substantial evidence of suicidal ideation and possible homicidal ideation, although whether such occurred during the timeframe for consideration (from September 8, 2003, to October 18, 2010) is unclear. Nonetheless, further evidence dated outside the appeal period for consideration lends credence to the fact that these episodes occurred during this critical period. With this in mind, in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held that the language of the general rating formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." Such is the case here. If the Board finds that the positive and negative evidence relating to a Veteran's claim are in "approximate balance," then the placement of the risk of nonpersuasion on the VA dictates a finding in favor of the claimant. Ortiz v. Principi, 274 F.3d 1361 (2001). See also, Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Here there is positive evidence in support of the claim and negative evidence against it. Given this, the Board finds that the evidence is in a state of "equipoise." As such, affording the Veteran the benefit of the doubt, the Board concludes that the most probative evidence concerning the severity and functional impairment resulting from the Veteran's psychiatric symptoms most nearly approximates the criteria for a 70 initial evaluation for service-connected PTSD from September 8, 2003, to October 18, 2010. However, while the Veteran's PTSD does result in significant disability, the Board finds that the criteria for a 100 percent schedular evaluation are not met at any time during the appeal period for consideration. For instance, symptoms typically associated with a 100 percent evaluation for PTSD are not demonstrated. For example, there was no evidence of gross impairment in thought processes or intermittent inability of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene). Further, as stated above, the criteria for a 100 percent schedular evaluation are PTSD symptoms resulting in total occupational and social impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); Cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). As will be discussed below, the Board has concluded that the Veteran’s service-connected PTSD, which is his only service-connected disability, results in total occupational impairment from September 8, 2003, to October 18, 2010; however, there is no evidence of total social impairment during the same time period. To this point, it is obvious that the Veteran’s relationship with his family and friends were strained during this period; however, there is no evidence that the Veteran was incapable of social interactions with others during this time. The scant medical evidence shows that the Veteran was pleasant to examining medical professionals during his psychiatric treatments, maintaining eye contact and conversing pleasantly. To the extent that social interactions with others was strained, this is compensated for in the 70 percent initial evaluation which the Board has found to be appropriate. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board concludes that the Veteran's PTSD symptomatology most nearly approximates the criteria for a 70 percent initial evaluation, but no higher, from September 8, 2003, to October 18, 2010. 38 U.S.C. § 5107. Entitlement to a TDIU from September 8, 2003, to October 18, 2010, is granted. TDIU 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 or as a result of two or more disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Analysis The Veteran and his private attorney aver that his service-connected PTSD rendered him unable to participate in a substantially gainful occupation from September 8, 2003, to October 18, 2010. For the following reasons, the Board concludes that the most probative evidence bolsters this assertion, and thus, a TDIU is warranted from September 8, 2003, to October 18, 2010. The Veteran completed high school and attended college for two years. He has at various times served as a manager of a warehouse and drug counselor. He later worked as a parole officer for five years immediately prior to a motor vehicle accident (MVA) that left him permanently disabled. The record indicates the Veteran last worked in March 1991, prior to injuring his lower spine and right leg in the previously-mentioned MVA. In January 1992, a state disability evaluation unit noted that he had been on long-term benefits as a result of health conditions stemming from his MVA. During the same January 1992 evaluation, he was diagnosed with PTSD and the examiner noted the Veteran had symptoms of anxiety and major depression and organic mental disorder, as well as mild-to-moderate dementia. The examiner also noted the Veteran had difficulty traveling alone because of a problem with walking and forgetfulness; he was using a cane at the time of the evaluation. Through the course of the evaluation, the examiner observed a myriad of orthopedic and neurological traumas to the Veteran’s lower back, shoulder and leg owing to his MVA. The stated purpose of that evaluation was to assess his post-MVA disabilities. A July 1999 disability examination provided by the Social Security Administration (SSA) reported the Veteran had severe emotional symptoms. The examiner made note of the Veteran’s MVA. During this examination, the Veteran was observed to be depressed, angry, and irritable frequently. He had difficulty giving basic information about himself, such as his birthday, and his wife indicated it was necessary for her to accompany him in order for him to answer questions and take care of other activities. The examiner also noted a history of angry and aggressive behavior and recommended psychiatric treatment, observing that mental disorder symptoms likely had decreased the claimant’s earning capacity. Parenthetically, the Board observes that the SSA’s determination of disability due to a psychiatric disability is not dispositive in the matter before the Board; however, such may be considered as evidence in furtherance of the Veteran’s appeal. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The question before the Board is whether the Veteran’s sole service-connected disability (PTSD) rendered him incapable of securing and maintaining a substantially gainful occupation from September 8, 2003, to October 18, 2010. To this point, as noted by the Board in the October 2019 decision, it appears that the physical residuals of the Veteran’s 1991 MVA significantly reduced his ability to continue participating in his former occupations. Nonetheless, the Board may not consider the impact of these disabilities in analyzing the present matter; rather, the Board must decide whether the evidence shows that the Veteran’s PTSD caused his unemployability. To the above point, there is ample evidence that the Veteran’s service-connected PTSD manifested in unprovoked irritability and violence during this period, as well as his difficulty adapting to stressful situations. Keeping in mind the severity of the Veteran’s service-connected PTSD at this time, which included suicidal and possible homicidal ideation, the Board concludes that, notwithstanding the effects of the Veteran’s 1991 MVA residuals, his service-connected PTSD, acting alone, resulted in the Veteran’s inability to secure and maintain a substantially gainful occupation in line with his educational and occupational histories. In sum, the evidence of record reflects that the Veteran's service-connected PTSD rendered the Veteran unable to secure or follow a substantially gainful occupation from September 8, 2003, to October 18, 2010. There is no adequate or probative medical evidence to the contrary. The criteria for TDIU are met from September 8, 2003, to October 18, 2010. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.