Citation Nr: 21024219 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-21 804 DATE: April 22, 2021 ORDER Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT 1. The Veteran’s PTSD is not manifested by total occupational and social impairment. 2. The Veteran’s service-connected disability renders him unable to maintain gainful employment. CONCLUSION OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1996 to December 2001 and from October 2002 to May 2006. The Veteran had a hearing before the undersigned Veterans Law Judge in February 2021. A transcript has been associated with the file. Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s mental health disability is currently rated under DC 9411. Under DC 9411, a 70 percent rating is prescribed when there is evidence of 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); and inability to establish and maintain effective relationships. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran contends his PTSD is worse than indicated by his 70 percent rating. In his February 2021 hearing, the Veteran reported hallucinations and he didn’t sleep, maybe getting four hours per night, which affected his daily function. The Veteran also said his anxiety was “through the roof,” causing him to lose several jobs, including two jobs he lost due to physical altercations. The Veteran said he had trouble with concentration that affected his current marriage, which was his third. The Veteran pointed out that an April 2020 vocational rehab documents said his PTSD put him at a disadvantage for employment, created problems with his relationships and his employers, and that on a bad day, he would not leave the house. In March 2021, the Veteran stated that his PTSD caused problems with concentration, staying focused, and holding jobs due to his anger, anxiety, depression, hearing loss, and tinnitus. The Veteran also stated that not sleeping was a big part of his problem. The Veteran also said his PTSD had caused problems for his family, including his wife, two sons, and step-daughter. The Veteran said he did not go places with his family and had three suicide attempts, two of which he had been hospitalized for. In March 2021, the Veteran’s spouse submitted a statement, saying they had been together since 2015, but that his PTSD had affected their relationship. The Veteran’s spouse said that he hadn’t been able to keep a job, there had been days when he couldn’t get off the couch, and that she and their children have to tiptoe around him. The Veteran complained of headaches and noises in his head. The Veteran would always sit so he could see the door when they would go out, didn’t like loud noises, startled very easily, and never slept through the night. The Veteran’s spouse reported the Veteran also had impulse control problems along with lack of ambition to complete tasks. The Veteran had an examination for his PTSD in April 2016 in which the examiner said the Veteran’s PTSD led to occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner reported the Veteran had been married for five years, but was going through a divorce. The Veteran lived part-time with his girlfriend and that he otherwise sleeps in his car. The Veteran said he had activities he enjoyed, such as hiking, spending time with his children, and swimming. The Veteran reported a close relationship with his older brother and that he looks after his elderly parents. The Veteran reported previous work in construction, armed security guard, and as a driver for an oil field company, but that he lost his last job in June 2012. Since then, he had worked odd jobs, painting houses. The examiner reported the Veteran’s symptoms included depressed mood, anxiety, and chronic sleep impairment. The examiner observed the Veteran was neatly groomed, with an “exaggeration of symptoms specific to nightmares and duration of sleep” when compared to his treatment notes. The Veteran was oriented, with normal speech and thoughts. The Veteran denied suicidal and homicidal ideations. This examiner suspected some substance abuse, which may contribute to the Veteran’s PTSD symptoms. The examiner also noted the Veteran was able to drive his vehicle and had no specific problems communicating. The Veteran also did not display difficulty following instructions. The Veteran had an examination for his PTSD in June 2017. The examiner opined the Veteran’s PTSD led to occupational and social impairment with deficiencies in most areas. The Veteran reported he was currently going through a divorce but that he had his two children for the summer. The Veteran currently lived with his girlfriend with whom he had been with for about a year. The Veteran reported keeping contact with his family and seeing his parents and siblings two to three times per week. The Veteran said he had one friend but didn’t see her often, but had a good relationship with his girlfriend and sons. The Veteran last worked in 2015 and had been self employed as a house painter, but lost customers because he “couldn’t deal with people.” The Veteran’s symptoms included anxiety, suspiciousness, panic attacks more than once a week, mild memory loss, difficulty understanding complex commands, establishing and maintaining effective work and social relationships, and impaired impulse control. The examiner observed the Veteran was anxious, but that he had good eye contact with adequate hygiene and normal speech. The examiner also reported the Veteran’s thoughts were normal and that the Veteran denied suicidal ideations, homicidal ideations, delusions, and hallucinations. The Veteran’s medical records show he has continuously sought treatment for his PTSD, routinely reporting symptoms such as nightmares, sleep problems, depression, hypervigilance, anxiety, and some more recent reports of hallucinations. However, most records show the Veteran denied hallucinations and he almost always denied suicidal and homicidal ideations. Additionally, the Veteran reported feeling better when his children came to visit and that he continued to be close to his parents, helping them with chores and visiting. These records also showed the Veteran had normal thoughts, speech, was dressed appropriately, did not have delusions, was oriented and had intact judgment and insight. (See e.g. February, December 2015, January 2017, November, December 2020, February 2021 treatment records.) Regarding his social impairment, the Board does not find the Veteran’s PTSD leads to total impairment. The Veteran’s record shows that while he goes through tension in his marriage, he remains married. He also has good relationships with his sons, his parents, and his siblings. Additionally, he reported having a friend, even though he doesn’t see her often. However, regarding his occupational impairment, the Board notes the Veteran’s impairment is significant with the Veteran’s anger, inability to get along with others, impaired impulse control, depression, lack of sleep and anxiety making it difficult for him to hold a job. The Board has considered the evidence as a whole and finds the Veteran’s PTSD most approximate the symptoms of a 70 percent rating as his social impairment is not complete and his symptoms do not approximate gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability ot perform activities of daily living, disorientation to time or place, or memory loss so severe that he forget his own name or that of his close relatives. The Board has considered whether a remand for a contemporaneous examination was warranted. However, in this case, the Board finds a new examination is not necessary. The Veteran recently had a hearing before the undersigned Veterans Law Judge when he was able to report his current symptoms. Additionally, the Veteran and his spouse submitted statements around the same time, again reporting the Veteran’s current symptoms. These symptoms, while serious, do not indicate a significant change from the symptoms previously noted on the Veteran’s most recent examination. Additionally, the Veteran has current treatment records discussing the current severity of his PTSD and the Board finds the evidence of record is sufficient to determine the current severity of the Veteran’s disability. Regarding the claim above, the Board acknowledges the Veteran’s statements that his PTSD continues to affect his daily life and still causes symptoms. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his complex mental health condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations of record and has weighed them as discussed above. The Board also finds the VA examinations to be adequate as the examiners reviewed the Veteran’s file, saw him in person, accounted for his statements as well as his medical history, and offered opinions backed by detailed explanations. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against this claim that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his PTSD warrants a higher rating. This does not mean that the Veteran’s PTSD does not cause him problems; clearly, his condition is quite serious. The only question is the degree. Indeed, the Board has found the Veteran’s PTSD, is of such concern as to warrant a TDIU, which has been granted in this decision. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU Claim Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or 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. See 38 C.F.R. § 4.16(a). In May 2017, the Veteran said that due to his “messed up” sleep schedule, it was hard to have a normal routine for a good work schedule. The Veteran’s current combined disability rating is 70 percent, with his PTSD being his only service-connected disability. The Veteran has a high school education with no additional training or education. The Veteran reported he last worked in June 2013 when he was terminated as a driver due to an accident. (See e.g. April 2016 correspondence.) As discussed above, the Veteran’s PTSD clearly leads to problems in the workplace that lead the Veteran unable to maintain a regular work schedule due to his lack of sleep, an inability to work with others due ot his anger, impulse control, and depression. Therefore, based on the evidence as discussed above, the Board finds a TDIU is warranted. Lastly, the Board notes, as the Veterans Law Judge mentioned in the hearing, that just because the Veteran is now in receipt of a TDIU, this does not mean that he cannot work at all in the future and that continuing treatment and vocational rehabilitation may be of help to the Veteran in the future if and when he is ready to seek employment. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.