Citation Nr: 21022374 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-41 006A DATE: April 15, 2021 ORDER During the period on appeal prior to March 17, 2014, a rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. During the period on appeal prior to March 17, 2014, a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. During the period on appeal prior to March 17, 2014, the Veteran’s overall disability picture more nearly approximated occupational and social impairment with deficiencies in most areas. 2. During the period on appeal prior to March 17, 2014, the probative evidence of record shows that it is at least as likely as not that the Veteran was unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. During the period on appeal prior to March 17, 2014, the criteria for a rating of 70 percent, but not higher, for PTSD have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). 2. During the period on appeal prior to March 17, 2014, the criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to February 1968, including service in the Republic of Vietnam, for which he received a Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, the Veteran filed a claim for a rating in excess of 30 percent for PTSD, which was denied in an April 2013 rating decision. Thereafter, the perfected an appeal. In a July 2016 rating decision, a 70 percent rating was granted for PTSD as of March 17, 2014, and TDIU was also granted as of that date. In a September 2018 decision, the Board denied a rating in excess of 30 percent for PTSD prior to March 17, 2014; denied a rating in excess of 70 percent for PTSD on or after March 17, 2014; and remanded the claim for TDIU prior to March 17, 2014, for additional development. The Veteran subsequently appealed the denial of a rating in excess of 30 percent for PTSD prior to March 17, 2014, to the Court of Appeals for Veterans Claims (Court). In a May 2019 Joint Motion for Partial Remand (Joint Motion), the parties agreed that the Board erred in relying on Global Assessment of Functioning (GAF) scores and failing to consider evidence of suicidal ideation. In June 2019, the Court granted the Joint Motion, vacating the portion of the Board’s September 2018 decision denying a rating in excess of 30 percent for PTSD prior to March 17, 2014, and remanding it to the Board for readjudication.   In May 2019, the Board remanded the claim for TDIU prior to March 17, 2014, for referral to the Director of Compensation Service for consideration of entitlement to TDIU on an extraschedular basis. In January 2020, the Board remanded the claim for a rating in excess of 30 percent for PTSD prior to March 17, 2014, for contemporaneous adjudication with the claim for TDIU. In August 2020, the Director of Compensation Service determined that extraschedular TDIU was not warranted prior to March 17, 2014. Both claims have been returned to the Board for further appellate action. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to a rating higher than 30 percent for PTSD prior to March 17, 2014 Under the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 30 percent rating is warranted when 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating 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 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 symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s PTSD and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2020). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. Upon review of the record, the Board finds that a rating of 70 percent, but not higher, is warranted for PTSD throughout the period under review. In February 2013 and February 2014 written statements, the Veteran indicated that he constantly experiences intrusive thoughts and vivid flashbacks of his combat service on Vietnam; he is very jumpy; and he does not sleep much. He reported having trouble concentrating and being easily distracted and forgetful. He reported feeling nervous in public places and experiencing panic attacks, noting that he has had to leave restaurants even before his food was served due to his anxiety. He reported hearing moaning sounds and the voice of a man who was in a hole he threw a grenade into while serving in Vietnam. He also described instances in which he inadvertently hit people when he was startled by a loud noise. The Veteran indicated that he feels a massive amount of guilt and tries to hide his feelings from others. The Veteran underwent a VA mental health examination in February 2013, during which he endorsed symptoms of depressed mood, anxiety, irritability or outbursts of anger, chronic sleep impairment, fatigue, recurrent distressing recollections and dreams, avoidance, markedly diminished interest or participation in significant activities, difficulty concentrating, hypervigilance, exaggerated startle response, and mild memory loss, such as forgetting names, directions, or recent events. The Veteran described recent instances in which he involuntary hit people due to his startle response, including a friend who came up behind him suddenly and a man in a wheelchair who accidentally bumped into him. He also stated that his wife tells him he worries about everything, and she does not let the Veteran drive anywhere unless it is near their home because he gets confused. The Veteran also reported hearing the sound of a man moaning, which the examiner indicated was part of the Veteran’s reexperiencing and not a symptom of psychosis. The examiner indicated that the Veteran appeared nervous and flinched frequently during the examination, even when there was no identifiable noise or other external trigger. With respect to memory, the Veteran was able to correctly recall three out of three items immediately after presentation, but he was only able to correctly recall two after a short time delay and one after a longer delay. The examiner characterized the Veteran’s level of functioning as 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. In June 2016, the Veteran submitted a report from a private psychologist who reviewed the evidence of record and interviewed the Veteran earlier that month. The psychologist opined that the VA examiner who evaluated the Veteran underestimated the impact of the Veteran’s symptoms and indicated that he believed the Veteran’s symptoms resulted in marked impairment. The private psychologist characterized the Veteran’s level of functioning as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as near-continuous panic and depression affecting the ability to function appropriately and effectively; suicidal ideation; impaired impulse control, including unprovoked irritability with episodic violence; difficulty adapting to stressful circumstances, including work and work-like settings; and difficulty establishing and maintaining effective relationships, evidenced by social withdrawal, marital stress, and hypervigilance. The psychologist further opined that such symptoms have been present since at least 2010. In support of this, the psychologist referred to portions of an April 2010 VA neuropsychological evaluation and a July 2010 VA mental health treatment record. The April 2010 VA neuropsychological report indicates that the Veteran was referred for an evaluation by his primary care provider due to concerns over memory loss, which have worsened since he stopped working in 2003. The Veteran described occasional short-term memory lapses characterized primarily by forgetfulness for recent events and recently conveyed information. The treatment provider indicated that the Veteran exhibited moderately severe anxiety and involuntary startle response throughout the evaluation, which occurred in response to seemingly innocuous stimuli, such as being addressed by the examiner and noises in the hallway. It was noted that the Veteran also endorsed a longstanding history of hypervigilance secondary to his Vietnam combat experiences, intrusive recollections of traumatic events, occasional verbal disinhibition, and avoidance of violent television shows and movies, loud noises, and crowds. It was also noted that the Veteran purposely avoided endorsing symptoms of PTSD and depression to his treatment providers because he views mental illness as being indicative of underlying characterological flaws. The neuropsychological evaluation revealed mild executive cognitive dysfunction, affecting memory retrieval, complex trial-and-error problem solving, and complex speed visual information processing. The treatment provider opined that the Veteran’s reported cognitive difficulties were secondary to disruptions in attention and concentration due to chronic and untreated PTSD and depression, which the treatment provider characterized as severe. The Veteran was subsequently referred for mental health treatment. A July 2010 VA mental health treatment record shows that the Veteran appeared quite fragile and exhibited a significant amount of hyperarousal throughout the session. The treatment provider noted that the session was ended early because the Veteran was so uncomfortable due to noise from nearby construction and that the Veteran’s PTSD appeared to be “quite serious.” An August 2010 VA mental health treatment record shows that the Veteran had little outside exposure over the past few years, and his ability to deal with sounds and noise was “highly intrusive.” The treatment provider noted that the Veteran sometimes winced as voice modulation changed with time and described the Veteran’s PTSD symptoms as “quite chronic and severe.” Subsequent VA mental health treatment records show ongoing symptoms of hyper-startle response, episodes of panic and anxiety, poor sleep, periodic confusion, and poor concentration. The record also shows that the Veteran reported thoughts of suicide in February 2011 and March 2011, shortly before the period on appeal. Although treatment records during the appeal period show that the Veteran stated that he would not consider suicide due to his family and his religion, he acknowledged during the June 2016 private psychological evaluation that he regularly thought of suicide, but did not want to tell anyone. This is consistent with prior treatment records which suggest that the Veteran had a history of downplaying or underreporting his PTSD symptoms. In summary, the record shows evidence of suicidal ideation; periodic confusion; difficulty adapting to stressful circumstances; panic and anxiety affecting the ability to function independently, appropriately, and effectively; and impaired impulse control in the form of inadvertent hitting in response to being startled. Based on the foregoing, the Board finds that the Veteran’s overall disability picture more nearly approximated occupational and social impairment with deficiencies in most areas throughout the period on appeal. Accordingly, a 70 percent rating is granted during the period on appeal prior to March 17, 2014. The Board finds that a rating in excess of 70 percent is not warranted at any time during the period under review. The record shows that the Veteran had a close relationship with his wife and maintained a relationship with some friends and relatives. Moreover, there is no evidence of 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 and place; or memory loss for names of close relatives, own occupation, or own name. Accordingly, total occupational and social impairment has not been such that a 100 percent rating is warranted. TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 2. Entitlement to TDIU prior to March 17, 2014 Throughout the period on appeal prior to March 17, 2014, service connection has been in effect for PTSD, now rated as 70 percent disabling; residuals of a gunshot wound to the right ankle, rated as 10 percent disabling; and residuals of a gunshot wound to the left thigh, rated as 10 percent disabling. The Veteran’s combined disability rating is 80 percent. Accordingly, the schedular criteria for TDIU have been met throughout the period under review. The record shows that the highest level of education attained by the Veteran is a high school diploma with a year of college courses, and he has experience working as a mechanic, a welder, a boiler maker, a janitor, a truck driver, and a security guard. He last worked full-time in May 2007. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience throughout the period on appeal. As found above, the record shows that the Veteran’s PTSD has resulted in severe symptoms of panic and anxiety, poor concentration, memory lapses, periodic confusion, difficulty adapting to stressful circumstances, difficulty being around loud noises, and impaired impulse control in the form of inadvertent hitting in response to being startled. All of the treatment providers who evaluated the Veteran indicated that he appeared noticeably anxious and jumpy and was easily startled by even innocuous stimuli. It was also noted that the Veteran had little outside exposure over the past few years, and he was usually accompanied by his wife when he attended medical appointments. The private psychologist who evaluated the Veteran in June 2016 opined that it is more likely than not that the Veteran’s PTSD precluded him from securing or following substantially gainful employment throughout the period on appeal. In support of this, the psychologist explained that the Veteran’s hypervigilance and depression impaired his ability to concentrate, and he often felt overwhelmed by life. The psychologist also noted that the Veteran’s continuous anxiety and fear negatively impacted his motivation and efficiency and made him unable to complete the tasks required by any sustainable job. In December 2019, the Veteran submitted a report from a private vocational expert who reviewed the evidence of record and interviewed the Veteran in October 2019. The vocational expert opined that the Veteran’s PTSD prevented him from securing and following any form of substantially gainful employment since at least March 2012. In support of this, the vocational expert indicated that the Veteran’s impaired concentration and memory and periodic confusion would likely require him to be reminded of work tasks and require frequent redirection and supervision. Additionally, the Veteran’s unpredictable panic attacks and intrusive thoughts would frequently distract him and cause him to be off task. Moreover, the Veteran’s tendency to strike out physically when startled would be distracting and unsettling to others. The vocational expert concluded that the Veteran would likely be unable to meet any employer’s standards of pace and productivity; he would be unable to consistently interact appropriately and effectively with others; and his inability to remain on task without redirection or supervision would not be tolerated in any occupation. Based on the foregoing, the Board finds that the evidence of record shows that it is at least as likely as not that the Veteran’s service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience throughout the period on appeal.   Accordingly, TDIU is granted during the period on appeal prior to March 17, 2014. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.