Citation Nr: 21024494 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-06 184 DATE: April 22, 2021 ORDER Prior to February 19, 2016 and during the pendency of this appeal, a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. From July 27, 2010, entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the laws and regulations governing the payment of monetary benefit. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran’s PTSD has not been productive of total social and occupational impairment. 2. From July 27, 2010, the Veteran’s service-connected disabilities combine to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to February 19, 2016, the criteria for a 70 percent rating, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 2. From July 27, 2010 to February 18, 2016, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. The Veteran appealed a November 2018 decision of the Board of Veterans’ Appeals (Board) to the United States Court of Appeals for Veterans Claims (Court) to the extent that the Board denied a rating in excess of 50 percent for PTSD prior to February 19, 2016 and entitlement to a TDIU prior to February 19, 2016. Pursuant to a joint motion for partial remand (JMPR), the Court, in a November 2019 order, vacated the Board’s November 2018 decision as to these matters and remanded the case to the Board to ensure compliance to the terms of the order. Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations for rating mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that PTSD is evaluated under Diagnostic Code 9411 which is rated according to the General Rating Formula for Mental Disorders. A 50 percent rating is provided 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided 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 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); inability to establish and maintain effective relationships. A 100 percent rating is provided for 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130. 1. Entitlement to an increased disability in excess of 50 percent for PTSD prior to February 19, 2016 In his August 2011 Notice of Disagreement, the Veteran asserted that his PTSD symptoms had worsened and more closely approximated a higher rating. In February 2011, the Veteran underwent a VA examination for PTSD. He was diagnosed with PTSD. His symptoms included difficulty sleeping, nightmares, intrusive thoughts of war several times a week, and avoidance of large crowds. He denied suicidal and homicidal ideation. He was casually dressed and neatly groomed. He was cooperative and pleasant. He displayed mild irritability, yet kept fair eye contact, as well as logical and coherent speech. Memory was largely intact, and he was oriented in all spheres. The examiner noted that the Veteran exhibited moderate PTSD symptomatology, noting that he held many different jobs since being discharged from active service which ranged from days to 2-3 months. During an April 2011 VA PTSD examination, the Veteran noted that nothing had really changed since his February 2011 examination. He stated that he continued to have nightmares approximately 2 to 3 times a week. He was casually groomed, cooperative, and did not display anxiety or dysphoria. His mood was euthymic. Thought process and memory were grossly intact. No hallucinations or delusions were reported. He denied suicidal and homicidal ideation. An October 2011 VA treatment note indicated that the Veteran was mad at his neighbor last night and that he wanted to harm him. The Veteran stated that he needed to work on managing his anger. A December 2011 VA treatment note indicated that the Veteran was feeling down as depression occurred yearly in the winter as it reminded him of a very difficult period when he was deployed to Vietnam. He denied suicidal ideation but expressed fleeting thoughts that things would be better if he were not alive. During VA depression screens from December 2013 to December 2016, the Veteran endorsed routine thoughts that he would be better off dead. During his November 2015 Board hearing, the Veteran testified that his PTSD symptoms caused difficulty sleeping and that he often used drugs to cope with the edginess associated with his lack of sleep. He noted that he maintained close relationships with his family and received support from his father, brother, and sister. He noted that he did not seek to be with his wife when he returned from war as he was a different person. Lastly, the Veteran testified that his PTSD symptoms caused difficulty working because if somebody made him mad, he would walk off of the jobsite and be fired, or he would get angry and be fired. In its November 2019 JMPR, the Court noted that the record showed that the Veteran had fleeting thoughts of self-harm; however, the Board did not specifically address this symptomatology in its November 2018 decision. Also, the Court noted that the Board needed to address the Veteran’s assertions that he did not have close relationships. In a March 2021 statement, the Veteran’s representative argued that the Veteran’s thoughts that “things would be better if he were not here” showed that the was entitled to at least a 70 percent disability rating for PTSD as they are indicative of suicidal ideation. Also, the Veteran’s representative noted that the Veteran continuously had difficulty with employers and supervisors. His volatile employment history was attributed to trouble getting along with coworkers. The representative argued that these instances showed an inability to establish and maintain effective relationships. In affording all reasonable doubt, the Board therefore finds that a 70 percent rating is warranted prior to February 19, 2016. However, an even higher 100 percent rating is not warranted because at no time did the Veteran exhibit 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board notes that the record reflects the Veteran having passive suicidal thoughts without intent as the Veteran denied having suicidal intent repeatedly upon VA examination and VA treatment appointments. Nevertheless, the Board finds that the Veteran’s repeated and consistent reports of passive suicidal thoughts rises to the level of suicidal ideation as contemplated by the criteria for a 70 percent rating. See, e.g., Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the regulation 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). In viewing the criteria for the various rating levels, the Veteran’s symptoms more nearly approximate the criteria for a 70 percent rating, such as unprovoked irritability with periods of violence, suicidal thoughts, as well as an inability to establish and maintain effective relationships. These symptoms are not contemplated within a 50 percent rating and indicate a more severe disability picture. The Board notes that the Veteran endorsed suicidal ideation as early as 2011. Accordingly, the Board finds that a 70 percent rating is met, but no higher during the pendency of this appeal In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a 70 percent rating for PTSD prior to February 19, 2016, but a preponderance of the evidence is against a rating in excess of 70 percent. 2. Entitlement to a TDIU prior to February 19, 2016 Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). VA regulations provide that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a). The Court has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered 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). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. § 3.341(a); see also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, pursuant to the Board’s decision this date, the Veteran has been awarded service connection for PTSD, rated as 70 percent disabling from July 27, 2010. The Veteran was assigned a temporary total rating from December 3, 2013 to February 1, 2014, and from September 6, 2016 to October 31, 2016 as well as a TDIU from February 19, 2016. PTSD is the Veteran’s sole service-connected disability. Thus, the Veteran’s combined disability rating meets the threshold schedular criteria for eligibility for a TDIU from July 27, 2010. On his March 2011 application for increased compensation based on unemployability, the Veteran reported that he did not finish high school and did not obtain any other education or training. He noted that he last worked full-time in 1994 at a power generation company. He reported that he did not miss any time due to his service-connected PTSD. In February 2011, the Veteran estimated that he had over 100 jobs since returning from his service in the Republic of Vietnam. He reported that he had difficulty working with others. Also, he would consume alcohol or take drugs on the job, which would get him fired. He primarily worked in construction and roofing. The Veteran reported that he was retired and receiving Social Security Administration (SSA) benefits. No impairment in thought process or communication was noted. Also, the Veteran reported that he could manage his finances and activities of daily living. An April 2011 VA examiner noted that the Veteran’s PTSD symptoms did not preclude all employment as no gross impairment in social functioning was noted, nor as there any impairment in thought process or communication. Also, the Veteran was found to be able to perform activities of daily living. In December 2014, the Veteran noted that he worked as a manual laborer his entire adult life. He was noted to have a 11th grade education. During his November 2015 Board hearing, the Veteran testified that his PTSD symptoms caused difficulty working because if somebody made him mad, he would walk off of the jobsite and be fired or he would get angry and say things which would get him fired. Also, he would consume alcohol or take drugs on the jobsite and be fired. He has not held a job as an adult longer than 6 months. He noted that his father financially provided for him up to his death. Now the Veteran received aid from his brother and sister. The Board notes that while SSA determinations are not binding on the Board, they are, however, relevant and are probative evidence specifically in consideration of the Veteran’s claim for TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). Based on the above, considering his educational and occupational background with his service-connected PTSD, the Board finds credible the Veteran’s testimony that his service-connected PTSD has precluded employment. In viewing the medical evidence of record, as well as the statements by the Veteran, the Board finds the evidence in its totality shows that employment is precluded due to the Veteran’s PTSD symptoms. The evidence reflects that the Veteran’s PTSD symptoms included suspiciousness, chronic sleep impairment, an inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. Although all VA examiners found that the Veteran’s service-connected PTSD did not preclude employment, the Veteran testified that he had over 100 jobs since returning from military service and that he was unable to work with others. Also, the evidence reflects that the Veteran was financially supported by his family members. Notably, in September 2016, the Veteran participated in and completed a PTSD residential program. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. Accordingly, the Board finds that effective prior to February 19, 2016, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted. In February 2021, a private physician opined that the Veteran’s PTSD, alone, has caused the Veteran to be unable to secure and follow substantially gainful employment since approximately 2008. The physician noted that the Veteran did not have the capacity to behave reasonably in any work environment due to his service-connected PTSD, notably his decline in appropriate interpersonal interactions, anger and hostility, mood and motivation disturbances, and lost capacity for consistent focus and concentration. The physician noted that when the Veteran was employed, he displayed absenteeism, poor focus, and difficulty interacting with others. Based on the above, considering his educational and occupational background in conjunction with the demonstrated functional impairment as it relates to his capacity for occupational activities due to his service-connected disability, the Board finds credible the Veteran’s testimony that his service-connected PTSD precludes employment. In viewing the medical evidence of record, as well as the statements by the Veteran, the Board finds the evidence in its totality shows that employment is precluded due to the Veteran’s PTSD symptoms. The date the Veteran stopped working is unclear as he asserted that he last worked in 1994 on his March 2011 application for increased compensation based on unemployability; however, he stated in February 2016 that he last worked in 2008. Regardless, the Veteran testified that he had over 100 jobs since returning from military service and that he was unable to work with others. Also, the evidence reflects that the Veteran was financially supported by his family members. Further, the February 2021 physician noted that the Veteran did not have the capacity to behave reasonably in any work environment from at least 2008 due to his service-connected PTSD. The physician found that the Veteran’s symptoms from 2008 included decline in appropriate interpersonal interactions, anger and hostility, mood and motivation disturbances, and lost capacity for consistent focus and concentration. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. (Continued on the next page)   Accordingly, the Board finds that effective from July 27, 2010, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.