Citation Nr: 21014257 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-06 734A DATE: March 11, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to August 13, 2013 is granted. Entitlement to an increased rating greater than 70 percent for PTSD from August 13, 2013 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior August 13, 2013 is granted. FINDINGS OF FACT 1. During the entire appeal period, the Veteran’s PTSD was manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The Veteran’s PTSD was not manifested by symptoms resulting in total occupational and social impairment. 2. Affording the Veteran the benefit of the doubt, prior to August 13, 2013 he was not able to obtain or retain substantially gainful employment due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for PTSD from August 13, 2013 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for an increased disability rating greater than 70 percent for PTSD from August 13, 2013 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 3. The criteria for entitlement to TDIU prior to August 13, 2013 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to January 1969. He appeals a March 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to an initial rating greater than 50 percent for PTSD. During the appeal period, the AOJ increased the Veteran’s rating to 70 percent and granted entitlement to TDIU, effective August 13, 2013. See February 2015 rating decision. Most recently, in August 2020, the Board of Veterans’ Appeals (Board) remanded the claim for the AOJ to issue a Supplemental Statement of the Case (SSOC) after completing the development from a February 2019 Board Remand. The appeal is now back before the Board. PTSD Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran contends his service-connected PTSD is more severe than his 50 percent initial rating prior to August 13, 2013 and 70 percent thereafter would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent rating is warranted 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, and difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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 name. Id. When evaluating a mental disorder, the rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. For PTSD, the Board must conduct a holistic analysis that considers the severity, frequency, and duration of all associated symptoms with the Veteran’s level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.126(a). Then, the Board must determine whether the Veteran’s symptomatology caused a level of impairment in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). In March 2013, a VA examiner found the Veteran’s PTSD symptoms included impairment of short and long-term memory, disturbances of motivation and mood, difficulty establishing and maintaining effective relationships, and suicidal ideation. The examiner also noted the Veteran had “irritability or outbursts of anger” such as he was “impatient [and yelled] at people for trivial things.” See March 2013 VA examination report. Later, a November 2014 VA examiner concluded the Veteran exhibited the same symptoms with the addition of difficulty adapting to stressful circumstances, impaired impulse control, neglect of personal appearance and hygiene, and the intermittent inability to perform activities of daily living (ADLs). The November 2014 VA examiner concluded the Veteran’s symptoms increased in severity since his last examination; however, the Board finds that the Veteran’s symptoms met the criteria for an initial 70 percent rating as he exhibited suicidal ideation, impaired impulse control, and difficulty adapting to stressful circumstances, such as a work setting, prior to the November 2014 VA examination. For example, the record reflects the Veteran was impulsive and exhibited impaired impulse control. See, e.g., November 2011 VA treatment records (“can be impulsive”); March 2013 VA examination report (“yells at people for trivial things”); June 2014 VA Form 21-4138 (“fits of rage”); November 2014 VA examination report (“three incidents of violent behavior with his wife, mostly pushing her”). Also, while the Veteran regularly denied suicidal ideation, the record reflects he suffered from suicidal ideation on occasion. See, e.g., March 2013 VA examination report (“most recently two years ago, usually in context of previous job stressors”); November 2014 VA examination report (“reports passive suicidal ideation”). Finally, the record reflects the Veteran’s symptoms more closely reflect difficulty adapting to stressful circumstances such as work. See November 2011 VA treatment records (“no tolerance for frustrations”); March 2013 VA examination report (has suicidal ideation “in the context of previous job stressors”); November 2014 VA examination report. Based on the foregoing evidence, the Board finds the Veteran’s symptom picture more closely approximates occupational and social impairment in most areas, including work, judgment, and mood. However, the record does not reflect the Veteran’s PTSD symptoms reach the frequency, duration, or severity required for total social and occupational impairment, the criteria required for the next highest rating, or 100 percent. For example, the November 2014 VA examiner noted the Veteran had the intermittent inability to perform ADLs. As evidence, the VA examiner noted the Veteran was “poorly groomed” and took “showers weekly now instead of daily.” See November 2014 VA examination report. Any further neglect of personal hygiene or appearance is not reflected in the record and the Veteran was found to have appropriate grooming and appearance. See, e.g., November 2011 VA treatment records (“grooming appropriate”). Additionally, both VA examiners noted the Veteran was capable of managing his financial affairs and the Veteran consistently denied “anything about [his] home, family, financial, legal or social situation” was causing problems. See, e.g., December 2017 VA treatment records. As such, the record does not reflect any inability to perform activities of ADLs reached the severity or duration to satisfy the criteria for total occupational and social impairment. Also, the Veteran contends he suffered from “delusions” and fits of rage. See June 2014 VA Form 21-4138. While the record supports a finding of impaired impulse control it does not otherwise support a finding that the Veteran suffered from delusions and hallucinations at any point in the appeal period. See, e.g.¸ November 2011 VA treatment records; March 2013 and November 2014 VA examination reports. As such, the record does not support a finding of “persistent delusions or hallucinations,” a factor considered for a 100 percent rating. Additionally, the Veteran reported passive suicidal ideation and impaired impulse control, but not to the extent he is a persistent danger to himself or others, as noted by the March 2013 and November 2014 VA examiners. Also, the record does not reflect he has grossly inappropriate behavior or gross impairment in thought or communication. See, e.g., November 2011 VA treatment records (good judgment, normal thought and speech, mood euthymic with affect congruent); November 2014 VA examination report (speech normal, no evidence of thought disorder, affect consistent with mood). The Veteran is consistently oriented and his memory loss is not so severe that he cannot remember his own name or hardwired information. See, e.g., November 2011 VA treatment records (“intact memory”); March 2013 VA examination report; August 2019 VA treatment records (“oriented; psychomotor retardation; memory intact”). Finally, the record reflects the Veteran’s PTSD symptoms make it difficult to establish social relationship, but he is not unable to do so. The record reflects the Veteran has a few friends and maintains relationships with family members. See, e.g., March 2013 VA examination report (“married since 1996…few other friends with whom he socializes”). For example, the Veteran’s friend of 15 years noted he meets the Veteran “frequently at a local bar.” See January 2019 J.C. statement. Another friend noted he has “been good friends” with the Veteran for over thirty years and tries to get the Veteran “out of the house to play golf and have a few beers.” See January 2019 P.R. statement. The Veteran himself reported to “golf about one to two times a week.” See October 2013 VA treatment records. Thus, the evidence reflects the Veteran does not have total social impairment. Overall, the Veteran’s symptoms are undoubtedly severe, but they do not rise to the rating criteria for total social and occupational impairment. As such, the Board grants entitlement to an increased initial rating of 70 percent, but no higher, for PTSD prior to August 13, 2013 and denies a rating greater than 70 percent from August 13, 2013. TDIU prior to August 13, 2013 The Veteran filed a formal claim for TDIU in June 2014. The AOJ granted the Veteran entitlement to TDIU, effective August 13, 2013, the date the Veteran met the schedular requirement for TDIU. However, the issue of entitlement to TDIU is raised for the entire appeal period of an increased rating claim when the Veteran’s appeal is coupled with evidence of unemployability. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). Therefore, as the issue of entitlement to TDIU has been raised and not granted in full, the period prior to August 13, 2013 will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Total disability will be considered to exist where there presently is any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. 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 the Veteran meets the schedular requirements. 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has met the schedular requirement for entitlement to TDIU as his service-connected PTSD, pursuant to the Order above, is now rated at 70 percent disabling. Therefore, the narrow issue before the Board is whether the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected PTSD prior to August 13, 2013. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board will consider the following factors: (1) the Veteran’s occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The record reflects the Veteran completed high school, attended two years of college and “flunked out” before he was drafted into the Army with a military occupational specialty (MOS) of medic. See March 2013 VA examination report; see also DD From 214. After service, the record reflects the Veteran completed four years of college and worked for the IRS as a revenue officer and tax investigator from 1972 to 1999, when he was reportedly fired. See March 2013 VA examination report; see also June 2014 VA Form 21-8940. In 2003, the Veteran worked as a guard for the Park Service and contends he quit in 2005 due to his psychiatric symptoms. Id.; see also June 2014 VA Form 21-4138. Thus, the record reflects the Veteran has the education, skill, and training to work in any number of typical unskilled labor or office positions. Further, he has the background to work in most accounting or finance fields. Physically, the Veteran is service connected for type II diabetes mellitus; however, his treatment does not require regulation of any activities and he has no complications, does not frequently meet with a provider regarding treatment, and a VA examiner found no functional impact on the Veteran’s ability to work. See July 2104 VA examination report. Thus, the record must reflect the Veteran’s service-connected PTSD prevented him from the ability to perform the type of activities required by the occupations for which he was skilled and trained. Mentally, the Veteran’s severe psychiatric symptoms are detailed above. The record reflects the Veteran was fired from his job with the IRS and quit his position with the Park Service due to psychiatric symptoms. He contends “his memory prevented him from working” at his IRS position and he received poor evaluations when a new supervisor began to monitor his work. See March 2013 VA examination report. The Veteran’s sister corroborated that the Veteran was fired as a result of him “wandering off when people [spoke] to him” and drinking too much. See January 2019 S.T. letter. For his Park Service position, the Veteran reported he “could not concentrate or pay attention” and quit. See June 2014 VA Form 21-4138. As noted above, the Veteran’s psychiatric symptoms result in memory loss and difficulty in adapting to stressful circumstances, such as work. The Board notes the AOJ has found the Veteran to be unemployable on a factual basis from August 13, 2013. The same facts are extant prior to August 13, 2013. It would be inconsistent and in violation of the reasonable doubt doctrine to find that the Veteran was not also unemployable due to his service-connected PTSD prior to August 13, 2013. In summation, the Board finds the Veteran does not have the mental ability to perform the activities required for substantial employment in his prior occupational fields. The above discussion of the severity of his psychiatric symptoms combined with his educational and occupational experience, support a conclusion that the Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected PTSD. Hence, resolving all doubt in the Veteran’s favor, entitlement to TDIU prior to August 13, 2013 is granted. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.