Citation Nr: 21023237 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-19 683 DATE: April 20, 2021 ORDER An initial rating of 70 percent is granted for posttraumatic stress disorder (PTSD or psychiatric disability), prior to October 12, 2020. An rating in excess of 70 percent for PTSD, from October 12, 2020, is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted, effective March 2013. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s psychiatric disability has been manifested as occupational and social impairment with deficiencies in most areas. 2. During the period on appeal, the Veteran’s psychiatric disability has not been manifested by total occupational and social impairment. 3. The evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disability is, at least, in equipoise, from March 2013; prior to March 2013, the Veteran was gainfully employed. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for the Veteran’s psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9411. 2. The criteria for a rating in excess of 70 percent for the Veteran’s psychiatric disability have not been met for any part of the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9411. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of a TDIU have been met from March 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 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 Army from April 1968 to April 1970. He was awarded the Purple Heart Medal and Combat Infantry Badge for service in the Republic of Vietnam. This case originally came to the Board of Veterans’ Appeals (Board) from a March 2010 rating decision issued by a regional office (RO) of the Department of Veterans Affairs. These matters were previously before the Board in October 2016 and May 2020, at which time they were remanded to the agency of original jurisdiction (AOJ) for further development. The Veteran testified before a Veterans Law Judge in August 2011. A transcript of that hearing is of record. In August 2016, the Veteran was notified that the Veterans Law Judge who conducted his hearing was no longer employed by the Board. He submitted a statement indicating that he did not wish to appear for a new hearing, and to date, has not requested any such additional hearing. This appeal originally addressed a rating in excess of 30 percent for PTSD. During the pendency of the appeal, an October 2020 rating decision granted an increased rating of 70 percent for PTSD, effective October 12, 2020; entitlement to TDIU was denied. Therefore the Board has characterized the issue on appeal to reflect the staged ratings throughout the appeal period. 1. Entitlement to an initial disability rating in excess of 30 percent for PTSD prior to October 12, 2020 2. Entitlement to a rating in excess of 70 percent for PTSD from October 12, 2020 The Veteran is service connected for PTSD with a rating of 30 percent prior to October 12, 2020, and 70 percent thereafter. He seeks increased ratings for the entire appeal period. The Board finds that a 70 percent rating should be granted for the period prior to October 12, 2020, but that a rating in excess of 70 percent is not warranted for any period on appeal. Disability evaluations are determined by the application of a schedule of ratings, which is, in turn, based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s psychiatric disability is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.130, DC 9411. Under that DC, a 30 percent rating is warranted if the disorder is manifested by 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, selfcare, 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, and recent events). A 50 percent rating is warranted if the disorder is manifested by 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 and maintaining effective work and social relationships. A 70 percent rating is warranted if the disorder is manifested by 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 that is 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); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted if the disorder is manifested by 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; and memory loss for names of close relatives, own occupation, or own name. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Following a review of the relevant evidence in this case, the Board has determined that there is enough evidence to support a 70 percent rating, but no higher, for the entire period on appeal. In July 2009, the Veteran underwent a VA mental health examination. He recalled combat-related traumatic events that occurred during service in Vietnam. The examiner, P.S.C., PhD, diagnosed the Veteran with PTSD. His disability was manifested by moderate social and occupational impairment. Symptoms included social isolation; difficulty establishing and maintaining work and social relationships; hazardous consumption of alcohol; avoidance of crowded places; sleep disruption; feelings of sadness; loss of interest in activities; self-dislike; feelings of worthlessness; and reduced interest in sex. The Veteran denied suicidal ideation. See July 2009 VA mental health consult. An August 2009 examination revealed similar findings as those from July 2009. During an October 2009 PTSD examination, it was noted that the topic of Vietnam combat caused the Veteran to become tearful. His alcohol use was noted to be significant. The Veteran reported being married three times. At the time of the examination, he had been with his wife for approximately seven years. The October 2009 examiner noted that “the bulk of [the Veteran’s] emotional distress was related to Vietnam.” There was no history of hallucinations, delusions, or mania; however, the Veteran did endorse fleeting thoughts of suicidal ideation a couple of weeks prior to his examination. Here, the Board observes that the Court of Appeals for Veterans Claims has held that the language of 38 C.F.R. § 4.130 indicates that “the presence of suicidal ideation alone, that is, a Veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). As noted above, in August 2010, the Veteran submitted a notice of disagreement, indicating that that he believed he was entitled to a rating of at least 70 percent for PTSD. By a March 2011 videoconference Board hearing, the Veteran appeared before a Veterans Law Judge. He explained that he had not participated in VA’s PTSD group counseling the nearest VA facility was a 45-minute drive from his home. His wife detailed the extent of his drinking. His wife also detailed the Veteran’s impaired impulse control, which included physical aggression. During a February 2013 evaluation by Dr. H.J., the Veteran was noted to have recently lost his job. There was noticeable psychomotor agitation and signs of emotional distress related to memories of Vietnam service. The Veteran’s mood was noted to be anxious and depressed. His affect was congruent to his mood. His thought process was within normal limits. He reported problems with concentration and memory. He denied suicidal and homicidal ideation. The Veteran was noted to have fair insight and judgment without any evidence of psychosis or delusion. With that said, the Veteran reported symptoms of hopelessness and helplessness. He endorsed significant patterns of sleep disturbance. Other symptoms included the following: irritable and angry outbursts; difficulty concentrating; significant alcohol consumption; hyperarousal; startled response; suicidal ideation (at a time prior to the examination); anxiety; depression; difficulty with focus and concentration. In March 2014, the Board remanded the Veteran’s PTSD claim based on evidence of worsened symptoms. However, it was not until February 2016 that the Veteran underwent an updated VA PTSD examination. The VA examiner, Dr. J.M., confirmed the Veteran’s PTSD diagnosis. At the time of his examination, the Veteran had been married 13 years to his third wife. Dr. J.M. indicated that the Veteran had stopped working in March 2013 because his position was eliminated due to downsizing. Furthermore, she noted that there was no evidence of work-related problems resulting in the Veteran’s job loss. The VA examiner stated that the Veteran’s PTSD symptoms manifested 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 normal routine behavior, self-care and conversation. During the February 2016 VA examination, the Veteran denied the existence of suicidal thoughts at the time of examination. The symptoms noted as most significant included the following: hypervigilance; startled response; sleep disturbance; mistrust of others; emotional detachment; alcohol use disorder in remission; anxiety. The Veteran endorsed difficulty with his peers at work. He continued to meet all the criteria for a confirmation of his PTSD diagnosis. The February 2016 VA examiner indicated that the Veteran’s memory appeared intact; he was able to engage in abstract thinking; his thought process was logical and organized; there was no evidence of hallucinations, delusions, or paranoia. In October 2016, the Board issued remand instructions requesting that all psychological treatment records from Dr. H.J. be associated with the Veteran’s claims file. The notes of Dr. H.J. are extensive and have been thoroughly reviewed by the Board. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the Veteran’s claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). None of the treatment records from Dr. H.J. indicate any symptoms that would align with a rating greater than 70 percent for PTSD. The Veteran did not demonstrate gross impairment in thought or communication; he denied the presence of delusions or hallucinations; his behavior was generally cooperative (with occasional restlessness) and has not been found to be grossly inappropriate in any way; the Veteran did not pose a persistent danger of hurting himself or others; he was never disoriented to time of place; he did not demonstrate significant memory loss; he did not demonstrate intermittent inability to perform activities of daily living. Following a remand by the Board in May 2020, the Veteran was afforded another PTSD examination. This VA examination, dated October 2020, demonstrated persistence of the Veteran’s PTSD symptoms. His disability manifested as occupational and social impairment with deficiencies in most areas, such as work, school, and family relations. Specific symptoms included the following: regular anxiety; depression; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; including work or a worklike setting; and impaired impulse control. Severity of symptoms was similar to those demonstrated earlier in the appeal period. The October 2020 VA examiner noted that the Veteran continued to have flashbacks from Vietnam. He suffered symptoms of irritability and easy agitation. It was noted that his job was eliminated and that he often “lashes out at his wife.” The Veteran had been married three times but did not maintain a relationship with his children. He avoided crowds; he detailed severe irritability, social isolation, and frustration with cognitive changes. The VA examiner characterized the Veteran’s PTSD as “severe”, explaining that there had been a notable increase since 2013. Based on the foregoing, the Board finds that a 70 percent rating, but no higher, is warranted for the Veteran’s PTSD symptoms throughout the entire period on appeal. Perhaps, most persuasive, is the Veteran’s endorsement of suicidal ideation early in the appeal period (during the October 2009 examination). There appears to be abatement of any suicidal ideology, but other symptoms have become more apparent during the appeal period. Such symptoms include, without limitation, the following: obsessive behavior; impaired impulse control; difficulty adapting to stressful circumstances; hypervigilance; inability to establish and maintain effective relationships; and difficulty interacting with others. See, e.g., August 2016 encounter notes authored by Dr. H.J. This is generally indicative of deficiencies in “most areas,” particularly family, mood, thinking, and work. With regard to a rating greater than 70 percent for PTSD, the Board does not find ample evidence of total occupational and social impairment at any part of the appeal period. As detailed above, the Veteran has maintained his marriage with his third wife. He denied persistent suicidal or homicidal ideation; the suicidal ideation which has been noted was temporary or fleeting at most. Despite these temporary periods of ideation, he has denied suicidal planning, and has not been found to be a danger to himself or others. The Veteran has demonstrated some mild memory loss; however, such memory loss symptoms have not been of the severity, frequency, or duration contemplated by a total rating, for example, he has not forgotten his own name or names of close relatives. There is no evidence in the record of gross impairment in thought processes or communication, indeed he has been generally able to communicate in a normal matter throughout all treatment during the appeal period. He has not presented persistent delusions or hallucinations; there is some evidence of inappropriate behavior that appears to be circumstantial and related to increased social isolation and anxiety, however, it has not been shown to be grossly inappropriate. The Veteran has not been persistently disoriented to time or place; he does not have memory loss for his own occupation or name. He has not demonstrated the inability to perform activities of daily living, and he generally appears adequately groomed. He is able to maintain minimal personal hygiene. As such, a rating in excess of 70 percent is not warranted. 38 C.F.R. § 4.7. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In sum, the Board finds that prior to October 12, 2020, the criteria for a 70 percent rating for TDIU have been met. However, at no period on appeal has the Veteran met the criteria for a total rating. Therefore, affording him the benefit of the doubt, the Board will grant a 70 percent rating prior to October 12, 2020, but deny a rating in excess of 70 percent thereafter. 3. Entitlement to TDIU In its May 2020 opinion, the Board noted the Veteran’s application for TDIU. VA will grant a total disability rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). In this case, the Veteran is service connected for PTSD, shell fragment wounds, shoulder strain, diabetes mellitus (type II), tinnitus, bilateral hearing loss, and scarring. With the Board’s grant of a 70 percent rating from the date of service connection of PTSD, his combined rating for the entire appeal period is now 90%. He therefor meets the schedular rating criteria for consideration of TDIU. Substantially gainful employment is 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). The Veteran became unemployed in March 2013. With that said, the Board finds that the issue of TDIU was not raised by the record until March 2013, as he was gainfully employed prior to that date. The Board has carefully considered the evidence of record. Particularly persuasive are the opinions from Dr. H.J., which demonstrate the correlation between the Veteran’s unemployment struggles, his alcohol consumption, and his psychiatric disability symptoms. Furthermore, there has been a consistent and steady presence of the Veteran’s psychiatric symptoms for the entire period on appeal. There has not been evidence of abatement. The October 2020 VA examiner opined that the Veteran’s symptoms constituted severe PTSD—illustrating that the Veteran’s potential for obtaining substantial employment has not improved with time. His symptoms have become more difficult over the years, particularly his hypervigilance and difficulty interacting with others. The Veteran has not been employed since 2013 and endures ongoing pain related to his combat injuries and the shrapnel embedded in his body. All these service-connected symptoms significantly impair his occupational and social functioning. The final determination with respect to a Veteran’s entitlement to a TDIU is an adjudicatory, and not a medical, function. The findings reflected throughout the Veteran’s clinical reports are highly probative. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran’s description of the functional effects of his service-connected psychiatric disability, together with service-connected impairments related to shrapnel wounds, shoulder strain, diabetes, tinnitus, bilateral hearing loss and scarring, as they relate to his level of education and prior occupational experience, the Board is persuaded that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A TDIU is therefore granted effective March 2013, the first date when he became unemployed due to his service-connected disabilities. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.