Citation Nr: 21015132 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-04 050 DATE: March 16, 2021 ORDER For the entire appeal period, a 70 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the laws and regulations governing the payment of monetary benefit. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PTSD was productive of no more than occupational and social impairment, with deficiencies in most areas. 2. The Veteran’s service-connected disabilities combine to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 70 percent rating, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for an award of a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1954 to September 1974. The Veteran appealed a January 2019 decision of the Board of Veterans’ Appeals (Board) to the United States Court of Appeals for Veterans Claims (Court) in regard to entitlement to a rating in excess of 30 percent for PTSD and entitlement to a TDIU. Pursuant to a joint motion for remand (JMR), the Court, in a February 2020 order, vacated the Board’s January 2019 decision and remanded the matter to the Board to ensure compliance to the terms of the order. Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations for rating mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that PTSD is evaluated under Diagnostic Code 9411 which is rated according to the General Rating Formula for Mental Disorders. A 30 percent rating is assigned where there is 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 provided 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 provided 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 provided 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. 38 C.F.R. §§ 4.125-4.130. 1. Entitlement to an evaluation in excess of 30 percent for PTSD In his May 2013 notice of disagreement, the Veteran asserted that his PTSD symptoms had worsened and more closely approximated a higher rating. In February 2012, the Veteran underwent a private psychiatric screening by Dr. H.J. The Veteran noted that had been married since 1958 and that he had one child. He reported being unemployed and that he retired from the Virginia school system when he was 65 years old. He graduated college with a specialty in community social service. The Veteran reported experiencing combat trauma. When he returned from combat, he had nightmares, flashbacks, and problems adjusting. He noted that exercise helped relax him and take his mind off traumatic memories. Twenty years prior to the interview, the Veteran had a nightmare, in which he tossed furniture all over the room. When talking about combat experiences, the Veteran became emotional and reported many symptoms of anxiety and depression. He noted that talking about combat made him emotional. He reported sleeping 3 to 4 hours a night. He was extremely watchful, guarded, and alert. He reported being sad and that it was difficult for him to keep his mind on one thing at a time. Also, he noted that he was anxious around crowds of people. He stated that he had thoughts of killing himself, but that he could not carry them out. His thought processes were goal oriented and he was oriented in all spheres. He was diagnosed with PTSD, major depressive disorder, and panic disorder with agoraphobia. He was prescribed medication to treat his psychiatric symptoms. During an August 2012 appointment with Dr. H.J., the Veteran noted that he reduced his anxiety by running seven miles a day. The physician noted that the Veteran was hyper and high-strung. No psychoses or delusions were noted. During a January 2013 appointment with Dr. H.J., the Veteran noted once again that running treated his PTSD symptoms. The physician noted that the Veteran was hyper and high-strung. No psychoses or delusions were noted, but some disorganization and thought blocking was present. In December 2012, the Veteran underwent a VA disability benefits questionnaire (DBQ) for PTSD. He was diagnosed with PTSD. The examiner noted that the Veteran’s PTSD symptom was anxiety. The Veteran reported a good marriage with his wife that he married in 1958. He reported a good relationship with his son and siblings, as well. He had a good friend as well as other friends who enjoyed bowling and visiting. He regularly attended church and ran errands. He enjoyed going out to eat and attending local basketball and football games. He denied any avoidance or emotional troubles being in public. He ran three days a week and enjoyed lifting weights. He liked watching television, reading, and using the computer. The Veteran retired from the military in 1974 and became a counsellor at a learning institute afterward. Six months later he started a position at Richmond Public Schools. He retired from this position years later. He reported no problems at work. The examiner noted that the Veteran seemed to have mild PTSD due to his combat experiences. However, he was functioning very well and continued to do so. He had a successful military career and went on to have a successful career as a teacher’s assistant after obtaining a college degree. The Veteran noted that he got along with his wife and family. He maintained a few friendships, as well as had several activities he enjoyed and in which he stayed active. He got out in public fine with no significant avoidance behavior, which opposed the private diagnoses of panic and agoraphobia. During the examination, the Veteran seemed anxious, though this was likely due to him being 45 minutes late as it was the first time at that VA medical center and he got lost. For about 99 percent of the examination, the Veteran’s mood was euthymic and affect was broad, smiling at times. He was friendly, polite, and cooperative. However, when combat experiences were mentioned, the Veteran became upset and began to sob. Relatively quickly afterward, the Veteran’s mood and affect returned to normal. Memory was intact. He denied having delusions or hallucinations, and also denied having suicidal and homicidal thoughts or attempts. He denied having panic attacks and obsessive-compulsive disorder. He reported episodes of heightened anxiety that occurred less than one time a month. The Veteran denied ever being depressed and stated that “I’m not depressed,” which opposed the private doctor’s finding in February 2012. The Veteran reported that he was able to enjoy things in life and that he maintained interest and motivation in many activities. Further, no past VA screenings ever indicated any signs of depression. He maintained that he was usually in a good and positive mood. In the past, the Veteran experienced intense nightmares, in which he would throw objects in a room. Most recently, he had experienced dreams about once a month. He denied any problems with upsetting intrusive memories, which indicated that he was quite good at not thinking about it. He did not describe any severe distress at triggers. He watched fireworks, but preferred them from a distance. He watched news reports of war. He reported liking people and getting along with others. His concentration was good and he liked reading and working on the computer, both of which require good concentration. He denied having excessive anger or irritability. He liked to have his back against a wall, so he knew who was in the room; however, there was no excessive anxiety or avoidance of the public. He reported getting approximately 5 hours of sleep a night, but noted that he had enough energy the next day. The examiner found that the Veteran’s PTSD symptoms caused an occupational and social impairment with transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In May 2016, during a VA telephone mental health consultation, the Veteran stated that he avoided news reports on the current war to avoid distressing memories of the Vietnam War. He reported hyperarousal and hypervigilance. He denied any hopelessness, as well as any suicidal or homicidal ideation, but reported vague fleeting thoughts 6 to 8 months prior; however, he stated that he would not do anything. In November 2017, the Veteran underwent another VA DBQ for PTSD. He was diagnosed with PTSD. His symptoms included depressed mood, chronic sleep impairment, and mild memory loss. The Veteran reported having a good relationship with his wife of 59 years. He had a good relationship with his son who lived in Florida. Also, he maintained a good relationship with his siblings. His wife’s family lived nearby and he got along with them. He maintained one very good friendship, as well as other good acquaintances. He no longer went bowling often with his friends, yet they went out to eat, socialize, and watch television. He reported running less as there were bear sightings near his home; however, he continued to regularly exercise. About once a month or less often, he felt sad for no reason and would lay down to clear his head. He enjoyed running various errands, such as mowing the lawn, researching on the internet, and shopping at different stores. He regularly attended church. The Veteran retired from Richmond Public Schools years ago, but recently obtained a part-time position as a security officer. He worked two weeks, but resigned as he was standing for long periods of time and his legs swelled. The VA examiner noted that the February 2012 private examination provided vague and exaggerated levels of poor functioning without specific examples. The Veteran noted that he stopped taking psychiatric medication in 2015. The VA examiner noted that the Veteran reported mild levels of depression during his 2016 VA consultations. The Veteran was 45 minutes late to the appointment as he went to the Veteran’s care facility next door instead of the VA medical center, which is a common mistake, especially since the Veteran was only at the facility once before almost five years prior. The Veteran did not appear confused or disoriented to show signs of significant cognitive function. He drove an hour and a half each way by himself. Overall, the Veteran’s mood was euthymic and affect was generally broad, consistent with his last VA examination. He was friendly, polite, and cooperative. Eye contact, speech, and other behaviors were normal. The Veteran reported being somewhat forgetful at times, but the VA examiner opined that this was not due to military service or his service-connected PTSD as his occasional forgetfulness was not severe. He denied having delusions or hallucinations, and also denied having suicidal and homicidal thoughts or attempts. He denied having panic attacks and obsessive-compulsive disorder. He denied having anxiety. He reported that he was not excessively scared, fearful, or extremely worried, other than normal concerns. He reported being in a good mood about 70 percent of the time and that he felt low about 30 percent of the time, but he was grateful regardless. He reported a trauma-related nightmare about once a month or less and reported no problems with intrusive memories during waking hours. Cues, triggers, or reminders of trauma that distressed the Veteran were very rare. He avoided war movies, but was able to view fireworks. He reported no problems getting along with others and denied having conflict with others. He denied problems with anger, hypervigilance, and irritability. He liked going out in public, especially to Walmart. He reported generally adequate concentration as he liked to read and research on the internet, which the VA examiner found to generally require some concentration. He reported sleeping 3 to 5 hours a night. He also reported napping occasionally. The Veteran noted that he had significant sleep apnea, which he was trying to treat. The VA examiner found that the Veteran’s PTSD continued to be relatively mild as he seemed to be functioning fairly well regarding interactions with others. The Veteran maintained interactions with others and activities he enjoyed. There was no avoidance of being in public. He reported good family relationships, a good mood, and he denied having anxiety. Also, the VA examiner found that the Veteran had a very successful work history. He retired from the military and received a regular retirement from the public-school system. The VA examiner noted that the Veteran’s problems with his part-time security job were due to physical limitations, not due to mental health or PTSD. Thus, given the Veteran’s relatively mild level of PTSD and the fact that he had a successful work history with no impairment from PTSD, there appeared to be no significant impairment in occupational functioning. The examiner found that the Veteran’s PTSD symptoms caused an occupational and social impairment with transient symptoms which decrease work efficiency and ability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In its February 2020 JMR, the Court noted that the record showed that the Veteran had fleeting thoughts of self-harm; however, the Board did not address these thoughts the January 2019 decision. In an October 2020 statement, the Veteran noted that his PTSD symptoms were more severe and frequent around 2010. He reported increased anxiety, crying spells, avoidance of crowds, hopelessness, depression, difficulty sleeping, nightmares, and panic attacks. In December 2020, a private psychologist opined that the Veteran’s PTSD has been severe since December 2010 and has resulted in occupational and social impairment with deficiencies in most areas. The Veteran’s current symptoms included loss of interest in things he once enjoyed, difficulty sleeping, irritability, angry outbursts, difficulty concentrating, hypervigilance, depressed mood, self-destructiveness, avoiding situations that remind him of stressful events, and avoidance of talking about stressful experiences. The psychiatrist stated that he believed the VA examiners did not appreciate the severity of the Veteran’s PTSD symptoms. Notably, the Veteran reported suicidal thoughts in February 2012, May 2016, and October 2020. In affording all reasonable doubt, the Board therefore finds that a 70 percent rating is warranted for the entire appeal period. However, an even higher 100 percent rating is not warranted because at no time did the Veteran exhibit 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In viewing the criteria for the various rating levels, the Veteran’s symptoms more nearly approximate the criteria for a 70 percent rating. The Board has considered the totality of the Veteran’s symptoms as well as their frequency, severity, and duration. VA examination reports have indicated that the overall level of functioning is compatible with a 30 percent rating; however, the Veteran has consistently exhibited some symptoms which are more compatible with a 70 percent rating, such as suicidal ideation, depression affecting his ability to function, and his difficulty in adapting to stressful circumstances, such as hypervigilance. These symptoms are not contemplated within a 30 percent rating and indicate a more severe disability picture. The Board notes that the Veteran endorsed suicidal ideation and hypervigilance as early as 2012. Accordingly, the Board finds that a 70 percent rating is met, but no higher. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a 70 percent rating for PTSD for the entire appeal period, but a preponderance of the evidence is against a rating in excess of 70 percent. 2. Entitlement to a TDIU 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 such 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a). VA interprets the schedular requirements in 38 C.F.R. § 4.16 (a) to mean that a combined 70 percent rating is only required if no single disability is rated at 60 percent disabling. See Claims for Total Disability Based on Individual Unemployability (TDIU), Veterans Benefits Administration (VBA) Fast Letter 13-13 (Dep’t of Veterans Affairs, June 17, 2013). Generally, VA does not presume a claim for a TDIU is a claim for increase in all service-connected disabilities. Id. The Veteran’s current service-connected disability is PTSD, rated 70 percent from December 29, 2010 per this decision. The Veteran’s combined disability rating for his service-connected disability is 70 percent. See generally 38 C.F.R. § 4.25, Table I - Combined Ratings Table. Thus, the Veteran’s combined disability rating meets the threshold schedular criteria for eligibility for a TDIU during the pendency of this appeal. 38 C.F.R. § 4.16 (a). The Veteran’s May 2013 TDIU application listed PTSD as the disability that prevented substantially gainful employment. His disabilities affected full-time employment in 1995, the last time he reported working full-time, but that he did not leave his last job because of his PTSD. He reported working 40 hours a week from August 1983 to June 1995. The Veteran reported being unemployed since June 1995 and that he has not tried to obtain employment since. He reported having four years of college education. On his October 2020 application for increased compensation based on unemployability, the Veteran reported that his PTSD prevented him from securing substantially gainful employment from June 1993. He left his last position because of his service-connected disability. He reported having completed a total of two years of college courses, machine tooling courses. He worked as a full-time teacher’s assistant and teacher coordinator from 1976 to 1993, a part-time laundry washer in 2017, and a part-time security guard in 2017. He noted that he retired from the school system in 1993. He reported starting part-time work in 1993 as he was bored and wanted to feel useful: however, he quit after one month at each position as he became hypervigilant and anxious. His crying spells, nightmares, and irritability increased. In February 2012, the Veteran underwent a private psychiatric screening by Dr. H.J. The Veteran reported being unemployed and that he retired from the Virginia school system when he was 65 years old. He graduated college with a specialty in community social service. During his December 2012 VA examination for PTSD, the Veteran reported that he retired from the military in 1974 and became a counsellor at a learning institute afterward. Six months later he started a position at Richmond Public Schools. He retired from this position years later. He reported no problems at work. In August 2013, a senior human resource associate for Richmond Public Schools indicated that the Veteran’s employment records were unavailable. A September 2013 correspondence by a human resources associate showed that the Veteran was last employed by Richmond Public schools in 1988. The Veteran noted on his February 2014 substantive appeal that he was unable to work due to his service-connected PTSD and that evidence of this assertion was forthcoming. During his November 2017 VA DBQ for PTSD, the Veteran reported that he recently obtained a part-time position as a security officer. He worked two weeks, but resigned as he was standing for long periods of time and his legs swelled. Also, the VA examiner found that the Veteran had a very successful work history. He retired from the military and received a regular retirement from the public-school system. The VA examiner noted that the Veteran’s problems with his part-time security job were due to physical limitations, not due to mental health or PTSD. Thus, given the Veteran’s relatively mild level of PTSD and the fact that he had a successful work history with no impairment from PTSD, there appeared to be no significant impairment in occupational functioning. The Veteran is not service connected for a leg condition. In December 2020, a private psychologist opined that the Veteran’s PTSD, alone, has caused the Veteran to be unable to secure and follow substantially gainful employment. The Veteran’s 2017 part-time employment caused him to be hypervigilant and anxious. His crying spells, nightmares, and irritability increased. The psychologist noted severe short-term memory deficiencies in which the Veteran forgot what he was talking about in a matter of seconds. Also, his energy was deficient as he had difficulty sleeping. Therefore, the psychologist found that Veteran exhibited extreme disturbance secondary to his PTSD which precludes normal or appropriate socialization, learning, emotional stability, or performance within a work setting. The psychologist noted that the Veteran was upset to admit that his PTSD negatively affected his employability as he desired to work and contribute. Based on the above, considering his educational and occupational background with his service-connected disability, the Board finds credible the Veteran’s testimony that his service-connected PTSD precludes employment. In viewing the medical evidence of record, as well as the statements by the Veteran, the Board finds the evidence in its totality shows that employment is precluded due to the Veteran’s PTSD symptoms. The date the Veteran stopped working is unclear as he asserted that he last worked for Richmond Public Schools in 1995 and a human resources agent for the school indicated that he last worked in 1988. Regardless, the Veteran has maintained, during both VA examinations, that he did not have problems while employed at Richmond Public Schools. Also, he indicated on his May 2013 TDIU application that he did not leave his position at Richmond Public Schools because of his PTSD. However, the Veteran reported that his service-connected PTSD prevented him having substantially gainful employment in his May 2013 TDIU application. Although, both VA examiners opined that his PTSD did not prove to be a significant impairment in occupational functioning, the Board has found the evidence is in equipoise as to whether his PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas from December 2010. Also, there are inconsistencies in the record as to whether psychiatric and/or musculoskeletal issues were the reason the Veteran stopped working as a part-time employee in 2017. The November 2017 VA examiner noted that the Veteran recently resigned from his part-time position as a security officer as his legs swelled. The VA examiner noted that the Veteran’s problems with his part-time security job appear to be due to physical limitations, not due to mental health or PTSD. The Veteran maintains that his separation from part-time employment was due to the increased PTSD symptomatology, which the December 2020 psychiatrist found to be consistent, especially since the Veteran felt shame for not being able to return to the workforce. The evidence reflects that during the pendency of this appeal, the Veteran’s symptoms due to his service-connected PTSD included depressed mood, anxiety, suspiciousness, disturbances of motivation or mood, memory and concentration difficulties, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances such as work or a worklike setting, hypervigilance, suicidal ideation, and an inability to establish and maintain effective relationships. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. (Continued on the next page)   Based on the foregoing, the Board finds that a TDIU is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.