Citation Nr: 21023647 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 11-22 837 DATE: April 21, 2021 ORDER An initial rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted for the entirety of the appeal period, subject to the laws and regulations governing the award of monetary benefits. A total disability rating for individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits, as of October 29, 2002. FINDINGS OF FACT 1. The Veteran’s service-connected PTSD has been manifested by no worse than occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood throughout the appeal period. 2. As of October 29, 2002, the Veteran met the schedular criteria for a TDIU. 3. Resolving reasonable doubt in his favor, the Veteran’s service-connected disabilities have precluded him from securing or following a substantially gainful occupation as of October 29, 2002. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran’s favor, the criteria for a rating of 70 percent, but no higher, for the service-connected PTSD have been met for the entirety of the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a TDIU from October 29, 2002 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1968. This current matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2010 rating decision. In October 2017, the Board denied the claims for initial increased ratings in excess of 30 percent prior to December 22, 2016 and in excess of 70 percent on and thereafter for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Court granted a Joint Motion for Remand (JMR) and, in so doing, remanded this matter for further adjudication. In September 2019, this matter was again before the Board. At that time, the Board denied an increased rating in excess of 30 percent for the service-connected PTSD prior to August 27, 2015; granted an increased rating of 50 percent, but no higher, for PTSD from August 27, 2015 to February 3, 2016; granted an increased rating of 70 percent, but no higher, for PTSD from February 4, 2016, and granted a TDIU effective from February 4, 2016. The Veteran then appealed that decision to the Court, and, in April 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and, in so doing, remanded the Board decision to the extent that it denied an increased rating for PTSD in excess of 30 percent prior to August 27, 2015; and in excess of 50 percent from August 27, 2015 to February 3, 2016; and denied a TDIU prior to February 4, 2016. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 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. A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Psychiatric disabilities, however diagnosed, are rated under the General Rating Formula for Mental Disorders (General Rating Formula), and the criteria under this formula shall be considered no matter which diagnostic code is assigned. 38 C.F.R. § 4.130. The psychiatric symptoms listed in the rating criteria do not constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Rating Formula, a 30 percent rating is assigned when the evidence shows 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 behaviour, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when the evidence shows 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. Id. A 70 percent rating is assigned when the evidence shows 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 work-like setting); or inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. Also, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms; the length of remissions; and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Currently, the Veteran’s PTSD is evaluated as 30 percent disabling, effective from October 29, 2002; as 50 percent disabling from August 27, 2015; and as 70 percent disabling from February 4, 2016, pursuant to DC 9411. 38 C.F.R. § 4.130. He contends that his initial rating for his service-connected PTSD should be in excess of 30 percent prior to August 27, 2015, and in excess of 50 percent prior to February 3, 2016. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that, throughout the appeal period, his PTSD has caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but not total occupational and social impairment for any distinct period of time during the appeal. Thus, a rating of 70 percent, but no higher, is warranted for the Veteran’s service-connected PTSD, effective October 29, 2002. The Veteran’s VA treatment records show that he began receiving treatment for his PTSD in October 2002. Between October 2002 and October 2008, the Veteran reported that he experienced chronic sleep impairment, nightmares, flashbacks, severe irritability, exaggerated startle response, depression, night sweats, intrusive thoughts, anxiety, and trouble being in crowds. He also reported that he sometimes thinks about hurting other people but would never actually do so. Further, his wife provided statements regarding his anger and violent outbursts. In a June 2007 written statement, she stated that he was quick to anger and that his anger was very bad at times. She described the Veteran experiencing outbursts during which he would yell, throw things, and hit things. She explained that he never physically hurt her or their children, but she did feel physically, emotionally, and verbally threatened during these outbursts. In July 2009, the Veteran was afforded a VA examination. The examiner noted that the Veteran presented on time, was neatly groomed, and was alert and oriented. His thought process was logical and sequential, he had good eye contact, and he denied any delusions, hallucinations, and suicidal or homicidal ideations. The Veteran did report experiencing mild panic attacks, mild to moderate depression and anxiety, difficulty falling and staying asleep, and chronic nightmares. He reported that his anxiety and irritability has been progressively worsening since returning from Vietnam, in 1968. He reported that things worsened about 7 to 8 years ago, noting that his irritability and impatience increased, and he became very argumentative. The examiner reported that overall, despite these symptoms, the Veteran appeared to be doing well. He maintained good relationships with his wife and children, was active in his church, and played in a band. At an October 2010 mental health visit, the Veteran reported that he was more depressed and anxious. He felt his insomnia had worsened, he was very fatigued, and food no longer tasted good to him. However, he denied any suicidal or homicidal ideations. His examiner noted that he did look “pretty washed out” and that there was no particular issue that would account for the Veteran’s change in mood and outlook. Then, in July 2011, he was afforded another VA examination. He again reported that he had a good relationship with his wife and children, and that he has several friends he talks to weekly. He reported experiencing symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, and suicidal ideation. Regrettably, the examination report is silent regarding the details of the Veteran’s suicidal ideation. Additionally, the examiner noted that the Veteran had symptoms of hypervigilance, irritability or outbursts of anger, and exaggerated startle response. The examiner indicated that the Veteran’s symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Overall, the examiner explained, there did not appear to be a significant change in the impact of the Veteran’s PTSD symptoms on social and occupational functioning since his last examination in 2009. VA mental health visit notes from 2012 to 2015 show the Veteran continued to struggle with controlling his anger and irritability. While he continued to present alert and oriented at his visits and consistently denied delusions, hallucinations, and suicidal and homicidal ideation, his mood continued to fluctuate. At one point his wife described him as hateful, and his VA practitioner reported his affect as irritable. In October 2015, he again reported feeling run down, fatigued, and a loss of appetite. He stated that he felt his depression was uncontrolled and was working with his primary care physician to adjust his medications. The Veteran was then afforded another VA examination in October 2015. He reported experiencing nightmares, intrusive thoughts, increased anxiety nearly every day and constant feelings of hypervigilance, an exaggerated startle response, difficulty sleeping, depressed mood, mild memory loss, and significant irritability. He maintained relationships with his wife and some family members but stated that his irritability often created conflict in those relationships. He had difficulty feeling close and connected to others and became easily angered or irritated. While he did not report engaging in any physical altercations with friends or family, he did state that he had come close to engaging in physical fights with others and admitted to throwing things when angry. The examiner noted that he was appropriately dressed and groomed, with no notable hygiene deficits. He was attentive and cooperative, with linear, relevant, and logical thought patterns and expressions. He denied delusions, hallucinations, and homicidal ideation. He did report passive suicidal thoughts, explaining that he sometimes feels he would be better off dead. However, he clarified that he does not actually think about killing himself and does not have a plan. Overall, the examiner reported that the Veteran had 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. In light of the above, there is evidence in favor of both a 50 percent rating and a 70 percent rating for the Veteran’s service-connected PTSD. As noted above, when 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. In that regard, the Board finds significant the fact that the Veteran has consistently experienced impaired impulse control, including unprovoked irritability and periods of violence, throughout the entire period on appeal, which is specifically contemplated by the 70 percent rating criteria. Further, he has experienced intermittent periods of passive suicidal thoughts and has difficulty adapting to stressful circumstances. Therefore, resolving any reasonable doubt in the Veteran’s favor, the Board finds that his disability picture more nearly approximates that of a 70 percent disability rating. The Board also finds that the record does not establish that the Veteran’s PTSD symptomatology resulted in total occupational and social impairment at any time during the period on appeal. While the Veteran’s symptomatology has decreased his ability to establish and maintain effective relationships, it cannot be said that he has been totally socially impaired at any time throughout the appeal period. He has consistently maintained relationships with his family, including his wife and children, as well as with his church community. As such, the criteria for a 100 percent rating for the Veteran’s PTSD has not been shown during any portion of the time period on appeal. A disability rating of 70 percent rating, but no higher, for the Veteran’s PTSD is warranted throughout the entirety of the appeal period. TDIU All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. 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 if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). “Marginal employment,” as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income.” Other factors considered in determining whether a veteran is unemployable are his level of education, employment history, and his vocational attainment. Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether the Veteran currently is unemployable. 38 C.F.R. § 4.16(a). Additionally, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. The Veteran contends that he is entitled to a TDIU prior to February 4, 2016. As an initial matter, the Board finds that the issue of entitlement to a TDIU is part and parcel of the Veteran’s claim for an initial increased rating for his service-connected PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In light of the increased rating granted above, the Veteran’s service-connected disabilities have consisted of: tinnitus (rated at 10 percent disabling from January 30, 2001); PTSD (rated as 70 percent disabling from October 29, 2002); bilateral hearing loss (rated as 30 percent disabling from May 13, 2005); and ischemic heart disease (IHD) (rated 10 percent disabling from August 31, 2010). Accordingly, he has had a combined total disability rating of 70 percent as of October 29, 2002, and the earliest effective date possible for the award of a TDIU is October 29, 2002, the effective date of the award of service connection for PTSD at 70 percent. With regard to the question of whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service connected disabilities prior to February 4, 2016, the Board finds that the evidence supports the conclusion that he was indeed unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities as of October 29, 2002. Thus, a TDIU is warranted for this portion of the appeal period. The Veteran’s Application for Increased Compensation Based on Unemployability shows that he last worked fulltime in 1994, at which point he went on disability for a work-related injury. Prior to that, he spent his career working in construction, installing dry wall. He has a high school education, but no other education or training has been reported, and he does not possess any computer skills. As previously noted herein, the Veteran’s service-connected PTSD has been productive of symptoms including frequent, uncontrolled periods of irritability and violent outbursts, which included hitting and throwing things, since service connection was first granted October 29, 2002. He has also reported experiencing chronic sleep impairment, nightmares, flashbacks, exaggerated startle response, depression, night sweats, intrusive thoughts, anxiety, and trouble being in crowds. Additionally, he has stated that his service-connected tinnitus causes him difficulty with communicating with others. In December 2020, the Veteran received an employability evaluation from a private consultant. The consultant noted that, while employed, the Veteran had difficulty working with others. At the consultation, he reported that he primarily worked alone but that he frequently engaged in verbal altercations with co workers. He also reported a history of being fired from jobs due to his inability to establish appropriate work behaviors with superiors. Further, he reported that, while employed, he experienced depression, lack of motivation; struggled to get out of bed; and at times experienced suicidal ideation. He reported that he was anxious and uncomfortable most of the day, he had to take frequent breaks, and he also experienced issues with his memory and concentration. Additionally, he reported that his tinnitus made communicating and hearing instructions very difficult at times. Based on her interview with the Veteran and review of his claims file, the consultant opined that it is at least as likely as not that the Veteran’s service-connected PTSD and tinnitus have precluded him from securing and following substantially gainful employment in any capacity, including unskilled sedentary employment from at least October 29, 2002, to present. The Board finds that the December 2020 private vocational evaluation is probative that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that a TDIU is warranted from October 29, 2002. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.