Citation Nr: 21023572 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-24 769 DATE: April 21, 2021 ORDER For the entire rating period from December 14, 2011, a 70 percent disability rating for posttraumatic stress disorder (PTSD) is granted. Prior to November 30, 2015, entitlement to a disability rating in excess of 70 percent for PTSD is denied. For the entire rating period from December 14, 2011, entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The December 14, 2011 VA PTSD examination reasonably raised the issue of entitlement for an increased rating for PTSD. 2. For the entire rating period from December 14, 2011 to November 29, 2015, service-connected PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. Prior to November 29, 2015, the Veteran did not have total occupational and social impairment due to PTSD. 4. From December 14, 2011, the evidence shows that the Veteran was unable to secure or follow gainful or more than marginal employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. From December 14, 2011 to November 29, 2015, the criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. Prior to November 30, 2015, the criteria for an increased rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. From December 14, 2011, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a January 2012 Regional Office (RO) decision which continued a 50 percent evaluation for PTSD. The claim for a TDIU was raised as part of the current appeal for an increased rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran testified at a Board videoconference hearing in August 2017 before the undersigned Veterans Law Judge. The transcript is of record. In January 2018, the Board remanded the appeal for outstanding treatment records and to obtain a new VA examination. The Agency of Original Jurisdiction (AOJ) substantially complied with the Board’s remand directives. During the pendency of the appeal, the RO granted an increased 70 percent rating and a TDIU from May 1, 2013, and granted a 100 percent total rating from November 30, 2015. The Board notes that a Supplemental Statement of the Case (SSOC) was sent to the Veteran at his last address of record on January 21, 2021. A copy was also sent to his representative of record. The copy sent to the Veteran was returned by the postal service as undeliverable. The RO made an attempt to contact the Veteran for a current mailing address and sent notice to an alternate address located for him in March 2021, informing him of the need to correct his VA contact information. No response to the March 2021 letter has been received and no other address has been provided by the Veteran to date. The Veteran is responsible for keeping VA apprised of his current mailing address. The Board finds that the RO has made reasonable attempts to contact the Veteran and provide him with a copy of his SSOC. The Board finds, therefore, that no further action is necessary to assist the Veteran in this case. See 38 C.F.R. § 3.655; see also Olson v. Principi, 3 Vet. App. 480, 483 (1992) (holding that the duty to assist is not always a one-way street, or a blind alley, and that the veteran must be prepared to cooperate with the VA’s efforts to provide an adequate medical examination and submit all the medical evidence supporting his claim.). 1. Entitlement to a disability rating in excess of 50 percent for PTSD prior to May 1, 2013 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In rendering a decision, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran is in receipt of a staged 50 percent, 70 percent, and 100 percent rating for service-connected PTSD. A 50 percent disability rating is assigned for occupational and social impairment, with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130 A 70 percent disability rating is assigned 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 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 worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A higher 100 percent disability rating is assigned 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, or for the veteran’s own occupation or name. Id. In evaluating psychiatric disorders, the Board is mindful that the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). In an August 2013 substantive appeal, the Veteran contends that the date of his increased rating for PTSD was wrong as he appealed the denial on November 3, 2011, the denial was filed on January 11, 2012, and VA received the notice of disagreement on January 23, 2012; however, his retroactive award only went back to June 1, 2013. The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application." 38 U.S.C. § 5110 (a). The effective date for increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for the increase is the date of receipt of the claim for increase. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Here, the record shows that there were no appeals or claims filed on November 3, 2011. In a November 28, 2011 Veteran’s Supplemental Claim, the Veteran submitted a claim for service connection for a low back disability, but he did not identify any claim related to service-connected PTSD. Therefore, the Board finds that the November 28, 2011 claim was not a claim for an increased rating for PTSD. The claim for an increased rating for PTSD was raised by the record without application from the Veteran. The RO requested that service-connected PTSD be reexamined, and a VA examination for PTSD was completed on December 14, 2011. The Board finds that the December 2011 VA PTSD examination reasonably raised the issue of entitlement to an increased rating for PTSD. An increased rating for PTSD was denied in the January 2012 decision, and the Veteran perfected an appeal to that decision. The Board finds, therefore, that the period on appeal stems from the date of the December 14, 2011 VA examination. The Board finds that a higher 70 percent rating is warranted for PTSD for the entire rating period from December 14, 2011 to May 1, 2013. A December 2011 VA examiner found that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity, stating that there was no evidence of increased social impairment, he reasoned that the Veteran was out of work for the past month due to physical injuries sustained in a motor vehicle accident. The Veteran noted during the examination that he was out of work for the past month due to a motor vehicle accident in which he hurt his back. PTSD symptoms included anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and moot, and impaired impulse control. Vet Center records dated in October 2011 show that the Veteran was struggling with family relationships and domestic issues, to include a new marriage, a new baby, a step-son, and mother-in-law. The Veteran was also dealing with health issues and was going to be discharged from the military. He worried that he would not have a job before too long. A March 2011 Memorandum shows that the Veteran physically disqualified from retention due to failure to meet minimum medical standards based on a combination of his service-connected disabilities, which included PTSD with poor sleep, chronic ankle and bilateral knee pain, and obstructive sleep apnea. A January 2013 New Jersey Army National Guard final disposition shows that the Veteran was unable to perform miliary functions. National Guard service records include a May 2012 letter from Dr. S.D. who wrote that the Veteran was under his care for PTSD. Due to exacerbation of his symptoms, he stated that the Veteran was unable to function and unable to come to work at the present time. In a May 2013 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he was working for the Department of Defense as a Mechanic through present, but he also reported that he last worked full time in April 2012. He explained that he was sent home from work in April 2012 due to service-connected disability and had been on leave without pay since then. May 2013 and January 2021 VA examiners assessed the Veteran with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, and judgement, thinking, and, or mood. The May 2013 VA examination identified additional symptoms, to include depressed mood, anxiety, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstance, and an inability to establish and maintain effective relationships. A VA examination was requested on remand, in part, to address the Veteran’s functional impairment due to PTSD between 2011 and 2013. With regard to the Veteran’s level of impairment and employability due to PTSD, the January 2021 VA examiner stated that the Veteran had reported an increased in his symptoms between 2011 and 2013, which included a period of and ongoing difficulty in maintaining social and occupational roles. He lost employment and was unsuccessful in attending school as well. The examiner stated that this information was supported in documentation reviewed from 2012 by provider Dr. S.D. The weight of the evidence shows that PTSD signs and symptoms were more severe than indicated by the December 2011 VA examination. The Veteran had occupational and social impairment with deficiencies in most areas as indicated by a May 2013 VA examination, he stopped working full time in April 2012 as reported in his application for a TDIU, and while lay statements of record indicate that unemployment during this period was also due to convalescence related to surgery for a nonservice-connected back disability, the May 2012 letter from Dr. S.D. shows that the Veteran was also unable to work due to PTSD at that time. A January 2021 VA opinion supports this finding, indicating that the May 2012 letter showed ongoing difficulty in maintaining social and occupational roles between 2011 and 2013. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that a higher 70 percent rating is warranted for PTSD from December 14, 2011, the date that the claim for an increased rating was raised by the record. The Board finds that the Veteran has not met or more nearly approximated the criteria for a higher 100 percent disability rating for PTSD prior to November 30, 2015. See 38 C.F.R. § 4.130. While the evidence of record indicates that the Veteran was unable to work due PTSD from December 14, 2011, the medical and lay evidence of record did not identify both total occupational and social impairment due to psychiatric symptoms prior to November 30, 2015. Instead, the Veteran was living with his spouse at that time and, thus, maintained some social relationships. The December 2011 VA examiner reported that there was no evidence of increased social impairment, that the Veteran remarried and had a baby since the last examination. While 2011 Vet Center records noted difficulty with family relationships and domestic issues, the Veteran was not shown to have total social impairment. A May 2013 VA examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. Moreover, mental status examinations associated with VA treatment records and VA examinations, to include the May 2013 VA examination show that the Veteran did not exhibit symptomatology of such severity as indicated for a 100 percent rating prior to November 30, 2015 (i.e. gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, or for the veteran’s own occupation or name). On November 30, 2015, the Veteran was admitted for inpatient psychiatric care. Prior to that, it is not factually ascertainable based on the evidence of record that an increase in PTSD occurred. The Board finds, therefore, that the weight of the evidence shows that the degree of severity of the Veteran’s psychiatric symptoms and functional impairment is not consistent with a 100 percent prior to November 30, 2015. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to May 1, 2013 Total disability ratings for compensation may be assigned if 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. 38 C.F.R. § 4.16 (a). Such a rating is referred to as a TDIU. To be considered for assignment of a schedular TDIU the Veteran’s service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) 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. Id.  Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a “living wage.” Id. Notably, this inquiry must focus on whether, in light of his service-connected disorders, the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may not be given to the veteran’s age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Factors to be considered in determining whether unemployability exists are the veteran’s education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). In evaluating a Veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 38 C.F.R. § 4.16 (a). For the appeal period prior to March 1, 2013 and pursuant to this Board’s decision, the Veteran was in receipt of a combined 90 percent rating. He had a 70 percent rating for PTSD, a 50 percent rating for obstructive sleep apnea, separate 10 percent ratings for left and right patellofemoral syndrome, and a 10 percent rating for a scar on the right ankle. The Veteran, therefore, met the schedular percentage standards of section 4.16(a). (Continued on the next page)   In a May 2013 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he stopped working in April 2012 due to service-connected disability and had been on leave without pay since then. This is supported by findings from National Guard service records which include a March 2011 Memorandum, indicating that the Veteran was disqualified from retention due to failure to meet minimum medical standards based on a combination of his service-connected disabilities, which included PTSD with poor sleep, chronic ankle and bilateral knee pain, and obstructive sleep apnea. A January 2013 New Jersey Army National Guard final disposition shows that the Veteran was unable to perform miliary functions due to his service-connected disabilities. A May 2012 letter from Dr. S.D. also shows that due to service-connected PTSD, the Veteran was unable to work. VA medical records note that the Veteran had worked to run a landscaping business in 2012, and he did not provide requested details as to the extent or duration of that work attempt. A January 2015 Social Security Administration disability decision shows while that the Veteran did try to start a lawncare business, it was unsuccessful. The Board finds that the attempt at self-employment did not constitute sustained, more than marginal employment. The Board finds that for the entire appeal period, the weight of the evidence shows that the Veteran was not able to secure or follow gainful or more than marginal employment due to his combination of service-connected disabilities. A claim for a TDIU was raised in conjunction with the Veteran’s appeal for an increased rating for PTSD, and thus, the appeal period runs from December 14, 2011. Resolving reasonable doubt in favor of the Veteran, the Board finds that for the entire appeal period from December 14, 2011, a TDIU is warranted. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung 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.