Citation Nr: 21014823 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-30 913 DATE: March 15, 2021 ORDER Entitlement to an initial rating of 70 percent and no higher for posttraumatic stress disorder (PTSD) prior to October 15, 2020 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a staged initial rating higher than 70 percent for PTSD from October 15, 2020 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from April 8, 2005 is granted subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to October 15, 2020, the Veteran’s PTSD manifested by symptoms productive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. 2. From October 15, 2020, the Veteran’s PTSD did not result in total occupational and social impairment. 3. The Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment consistent with his education and employment history from April 8, 2005. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent and no higher for PTSD prior to October 15, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a disability rating higher than 70 percent for PTSD from October 15, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for entitlement to a TDIU have been met from April 8, 2005. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 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 January 1970 to January 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2018. A transcript of that hearing is of record. These matters were remanded by the Board several times, most recently in September 2020. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). A December 2020 rating decision assigned a 70 percent rating for PTSD effective October 15, 2020, and granted entitlement to a TDIU effective October 15, 2020. The Board recognizes that the Veteran’s VA treatment records reference private treatment records that are not associated with the claims file. However, as there is no indication that the private treatment is psychiatric, the Board will not further delay the resolution of this claim to remand to obtain irrelevant treatment records. 1. Entitlement to a staged initial rating higher than 50 percent for PTSD prior to October 15, 2020 The Veteran contends that his PTSD symptoms are severe enough to be assigned a rating higher than 50 percent prior to October 15, 2020. The Veteran submitted a claim in April 2005 and his appeal has been pending since that time. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating higher than 50 percent prior to October 15, 2020. The Board concludes that the Veteran’s symptoms cause the level of impairment required for a disability rating of 70 percent and no higher prior to October 15, 2020. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. During the period prior to October 15, 2020, the Veteran’s PTSD does not cause deficiency in thinking, but it does cause deficiency in most areas – specifically, work, family relations, judgment, and mood. In March 2006 correspondence, the Veteran reported that he had trouble working because he would have a panic attack and leave work. The July 2010 VA examination indicates that he has had trouble working with others because of interpersonal run-ins and difficulties. The Veteran reported that he enjoyed talking with customers, and simply came in early in the morning to prepare food and leave before the crowds gather. In the March 2018 hearing, the Veteran reported that he stopped working because he had a hard time explaining his PTSD behavior. The Veteran’s wife explained that the Veteran’s family opened up their own restaurant in part because the Veteran was unable to work anywhere, and would need to leave because he would have a panic attack in the middle of a shift. The Veteran’s son explained in the March 2018 hearing testimony that in spite of the Veteran having his family near him, his PTSD still affected him to the point that he would curse or yell at his son and others. The Veteran’s son received complaints from employees, and determined that the Veteran cannot be around other people, an opinion that he says was echoed by others the Veteran had worked for in the past. The family ultimately determined that it was better for the business if the Veteran no longer worked there. It is thus clear that the Veteran’s PTSD caused deficiency in work. The Veteran’s PTSD symptoms caused a deficiency in his relationship with his family outside of the workplace as well. Although the Veteran has remained married to his wife for over 40 years and he and his wife care for their grandson, this marriage appears to have succeeded due to substantial accommodation on the part of his wife. She related in the March 2018 hearing that he needs his wife or son around him or else he gets scared, to the point that she was once at the store when the Veteran called and insisted that she come home immediately because he was too scared to be alone. She turned down an offer to go back to work because she knew that she could not leave him alone. February 2010 correspondence stated that the Veteran had no friends because he could not get along with people. The record thus reflects that the Veteran’s PTSD symptoms significantly impact his relationships with others, including his family. The Veteran’s behavior is also indicative of deficient judgment. In a November 2010 VA treatment record, he indicates that he attempted suicide by drug overdose because he felt unhappy and like a burden on his family. A November 2017 VA treatment record indicates that the Veteran’s wife called in search of the Veteran’s VA psychiatrist because the Veteran had become verbally and physically belligerent towards private hospital staff because of his PTSD, which resulted in the Veteran being placed in restraints and prevented from discharge. Although the private hospital records do not discuss this event in detail, they do indicate that in November 2017 he was hospitalized for surgery on his cervical spine, and a consult with psych was required to manage encephalopathy. The note indicates the Veteran developed delirium. In the March 2018 hearing, the Veteran’s wife related an incident in which she had to come to the hospital because the Veteran “flipped out” at a Vietnamese nurse who was treating him, which is presumably a reference to this hospitalization. The record thus reflects that the Veteran’s judgment was so impaired that he could not behave appropriately. The Veteran’s mood is deficient due to his ongoing difficulties with anxiety that is near-constant and panic attacks that affect his ability to function independently. A July 2010 VA examination found that his primary mood was anxiety with little variation, and that he had been irritable on a persistent basis over the years. The Veteran reports multiple panic attacks a week. A May 2011 VA treatment record indicates that the Veteran’s mental state was such that he was hardly able to breathe and a neighbor had to drive him to the clinic for treatment. The Veteran was described as afraid to be alone, tearful, and rocking in a chair. There are multiple treatment notes in which the Veteran presents at a VA medical center requiring medical treatment for a severe panic attack, including in October 2017 and January 2018. Several treatment notes, including one from February 2019, indicate that the Veteran experiences multiple panic attacks and exercises ongoing avoidance and limiting his life to only his small comfort zone. The Veteran’s anxiety is thus persistent to the point of affecting his ability to function independently. The record does not reflect total occupational and functional impairment because he maintains a relationship with his family and participates in the raising of his grandson. An October 2017 treatment note indicates that he is involved in his church, which also indicates that he is able to function enough to participate in organizations within his community. Although the November 2017 incident in which he had to be placed in restraints in the hospital indicates grossly inappropriate behavior or gross impairment in thought processes, this appears to be a single unusual incident that does not occur frequently enough to represent his total impairment overall. Although he has attempted suicide by overdose in the past, the record reflects that he has consistently been found to be a low suicide risk by his treatment providers, which means he is not in persistent danger of hurting himself. The Veteran’s functioning is severely curtailed by his PTSD, but it is not totally impaired. Therefore, the assignment of a rating higher than 70 percent is not appropriate. The Board assigns a rating of 70 percent and no higher for PTSD prior to October 15, 2020. 2. Entitlement to a staged initial rating higher than 70 percent for PTSD from October 15, 2020 The record does not reflect that the Veteran’s symptoms warrant the assignment of a rating higher than 70 percent from October 15, 2020. Although the October 15, 2020 VA examination found that the Veteran suffers from intermittent inability to perform activities of daily living, which is a symptom listed under the 100 percent criteria, the symptoms listed in the criteria are merely examples. The Board must rate the Veteran’s PTSD based upon his overall social or occupational impairment, not focus on a specific list of symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran’s overall impairment is not total occupational and social impairment. The October 15, 2020 VA examination indicates that the Veteran continues to have a good relationship with his family, in spite of his struggles with PTSD. He and his wife have adopted their young grandson after the death of their daughter, and are raising him together. He is thus not totally impaired, and a 100 percent rating is not appropriate. The claim for entitlement to a rating higher than 70 percent from October 15, 2020 is thus denied. 3. Entitlement to a TDIU from April 8, 2005 The Board finds that the Veteran is unable to obtain or maintain substantially gainful employment throughout the period on appeal. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In this case, the Veteran is service-connected for PTSD at the rate of 70 percent throughout the period on appeal. Therefore, he meets the schedular criteria for a TDIU. The Veteran and his family have provided compelling testimony discussed in the decision above of being unable to complete work shifts due to having panic attacks, and his difficulty with getting along with others. The Veteran has a high school degree and, per his March 2018 hearing testimony, one year of college. His work history is focused entirely in the restaurant industry. The Board concludes that he is unable to obtain and maintain substantially gainful employment in this industry due to his difficulty interacting with both customers and colleagues. If the Veteran were able to obtain entry level work in a position that could be performed in the isolation necessary to avoid his inevitable fights with colleagues and the public, he would still need to contend with the anxiety and fear that he often feels when alone, and which prompted his wife to decline an opportunity to work because she did not believe she could leave him alone. The Veteran’s anxiety, fear, and panic attacks prevented the Veteran from being able to complete shifts when he was employed, and the record does not reflect that this problem has improved. The Veteran contends in his July 2018 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, that he has been unable to work due to his PTSD since December 30, 2010 due to his PTSD symptoms. However, he also indicates that his work since January 2005 has been self-employment. As per the March 2018 hearing testimony, the Veteran’s family started a family restaurant in part because the Veteran was unable to work for other people. The hope appears to be that, as a family business, they could accommodate his PTSD symptoms, and that the presence of his family might curb some of his more extreme symptoms. The family business offered the Veteran the significant accommodation of allowing him to only work early in the morning, before the crowds of customers that would trigger his PTSD arrived. The Veteran’s son reported that he would fight with others, including publicly berating and cursing at his adult son, resulting in multiple complaints from other employees. Finally, in 2010, the family decided that it was bad for the business for the Veteran to work at the restaurant at all. It is unlikely that the Veteran’s behavior would be tolerated for five years in any other employment context. Therefore, the Board finds that although the Veteran’s income prior to 2010 exceeds the poverty threshold for an individual under the age of 65, his employment was marginal on a facts found basis because he was working in the sheltered environment of a family business that tolerated his PTSD symptoms more than any other workplace would. For the foregoing reasons, entitlement to a TDIU is granted effective April 8, 2005. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.