Citation Nr: 21024765 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-64 558 DATE: April 26, 2021 ORDER An initial rating of 70 percent, but no more, for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The weight of the evidence supports a finding that the Veteran’s PTSD has manifested as occupational and social impairment with deficiencies in most areas, but no higher, throughout the rating period on appeal. 2. The Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment for the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for rating a 70 percent for PTSD, but not more, are met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, DC 9440. 2. The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 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 November 1965 to September 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD and assigned an initial 30 percent rating, effective August 6, 2009. In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. After the May 2015 rating decision, the Veteran submitted a statement seeking reconsideration and a formal application seeking a TDIU due to service-connected PTSD. See 11/03/2015 VA 21-4138 & VA 21-8940. Subsequently, the RO issued a January 2016 rating decision (notification on February 29, 2016) that increased the PTSD rating to 50 percent, effective November 3, 2015 and denied TDIU. The Board notes that in the February 2017 notice of disagreement (NOD), the Veteran disagreed with the effective date for the January 2016 rating decision’s 50 percent increased rating and sought it to be effective August 6, 2009. However, an October 2017 rating decision granted the earlier effective date of the 50 percent increased rating for PTSD to August 6, 2009. The record does not reflect that a NOD has been filed regarding the new August 2009 effective date. Therefore, the claim for an earlier effective date for the 50 percent increased disability rating for PTSD is no longer on appeal. The record showed that a VA Form 21-22 purported to name The American Legion as the Veteran’s power of attorney. See 5/9/2019 VA Form 21-22. However, the RO rejected it because the form was incomplete as it was missing the representative’s signature. See 5/15/2019 Correspondence. The Veteran is advised that if he wants that The American Legion be assigned as his power of attorney, he needs to submit a fully completed VA Form 21-22 for that Veteran’s Service Organization to the RO. The Veteran’s representation by the agent listed on the title page was therefore not revoked as the May 2019 VA Form 21-22 was not valid. As such, the agent remained the Veteran’s representative. Indeed, the agent represented the Veteran at the September 2020 Board hearing; therefore, there was no violation to the Veteran’s right to representation. 38 C.F.R. § 20.5. 1. An initial rating in excess of 50 percent for PTSD. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, in pertinent part, a 50 percent rating is warranted if the disability is productive of 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 warranted 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 work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). As described above, the October 2017 rating decision granted an earlier effective date for the 50 percent increased rating to August 6, 2009. In order to warrant a higher rating, the Veteran’s disability would have to be manifested by occupational and social impairment with deficiencies in most areas. The Veteran contends that he is entitled to the next-higher 70 percent disability rating. See 2/22/2017 NOD. Additionally, the Veteran testified that his PTSD affects his ability to concentrate and relate to others. Further, the Veteran testified that he experiences anxiety attacks more that 3 or 4 times per week. See 9/3/2020 Hearing Transcript, at page 7. After review of the relevant medical and lay evidence, the Board finds that an initial rating of 70 percent, but no more, for PTSD is warranted. A January 2015 VA psychiatric examination noted that the Veteran was diagnosed with PTSD. The Veteran had symptoms, such as a depressed mood, anxiety, chronic sleep impairment, mild memory loss, and a flattened affect. Additionally, the Veteran had disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene. The objective examination showed that the Veteran was oriented, and his memory and concentration were within normal limits. However, the Veteran had disheveled hair and body odor. Finally, the examiner stated that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See 1/7/2015 C&P Examination. The Veteran underwent another psychiatric VA examination in January 2016. The Veteran’s symptoms were noted to include a depressed mood, anxiety, chronic sleep impairment, mild memory loss, and a flattened affect. Additionally, the Veteran had disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene. Further, the Veteran endorsed decrease socializing with friends, concentration problems, and visual and auditory hallucinations up to 3 times per week. The objective examination showed that the Veteran was casually groomed and able to maintain eye contact. Additionally, the Veteran had a logical and goal directed thought process and his speech, memory, and concentration were within normal limits. However, the Veteran had disheveled hair, body odor, a mildly dysphoric mood, and a flat affect. Finally, the examiner stated that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See 1/8/2016 C&P Examination.   The most recent March 2018 VA psychiatric examination diagnosed the Veteran with PTSD. The Veteran’s symptoms were noted to include a depressed mood, anxiety, chronic sleep impairment, and mild memory loss. Additionally, the Veteran had difficulty establishing effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or work like setting. The objective examination showed that the Veteran had a fair grooming and hygiene, and his speech and thought processes and content were within normal limits. However, the Veteran also had an anxious mood and affect, and his clothes were somewhat dirty. Further, the examiner noted an increase in symptoms, such as feelings of helplessness, anxiety, hypervigilance, sleep impairment, nightmares, and prolonged psychological distress with reminders, after an event with a repairman that abused the Veteran financially and verbally. Finally, the examiner opined that the Veteran had an occupational and social impairment with reduced reliability and productivity. See 3/12/2018 C&P examination. VA treatment records generally showed that the Veteran had an anxious and agitated mood and affect, a pressured speech, and a mild memory deficit. See 10/13/2017 CAPRI, at pages 4 and 34; see also 3/19/2018 CAPRI, at page 25. Based on the totality of the evidence above and solving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s condition most nearly approximates the criteria for a rating of 70 percent for the appeal period. In this regard, the record generally showed that the Veteran had a depressed mood, anxiety, chronic sleep impairment, mild memory loss, and a flattened affect. Additionally, the Veteran had disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene. After reviewing the relevant lay and medical evidence, the Board finds that the competent and probative evidence tends to support a finding of an occupational and social impairment with deficiencies in most areas. The Board finds that the preponderance of the evidence weighs against a higher, 100 percent, rating. As persuasive competent medical evidence, the examination reports marked by examiners from the January 2015, January 2016, or March 2018 VA psychiatric examinations reflect them indicating the Veteran’s PTSD as having total occupational and social impairment. Additionally, the most recent March 2018 VA examination showed that the Veteran had a good relationship with his granddaughter, a distant but good relationship with his children, and remained actively involved with his Native American music group. The Board finds such competent evidence tends to weigh against total social impairment. See Total, Merriam-Webster, https://www.merriam-webster.com/dictionary/total (defining the adjective "total" as, among other entries, absolute). Further, VA treatment records generally showed that the Veteran had a linear thought process and good insight and judgment. See 10/13/2017 CAPRI, at pages 4 and 34; see also 3/19/2018 CAPRI, at page 25. The Board also finds such evidence tends to weigh against total social impairment. The Board recognizes the Veteran’s contentions regarding his worsening PTSD symptoms, such as worsening ability to concentrate or relate to others, and anxiety attacks 3 or 4 times per week. See 9/3/2020 Hearing Transcript, at page 7. He is competent to make those assertions based on his observable symptomatology and the Board finds him credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered these lay statements as supporting evidence in increasing the initial rating to 70 percent. The Board also acknowledges that the during the January 2016 VA examination, the Veteran endorsed exhibiting some symptomatology, provided as examples for the 100 percent rating, such as persistent hallucinations. However, the weight of the competent, probative evidence shows the Veteran’s symptomatology reflects a frequency, severity, and duration commensurate with the criteria for a rating of 70 percent disabling. In sum, after review of all the relevant competent medical and lay evidence of record, the Board finds that the preponderance of the evidence reflects that the Veteran’s disability was manifested as occupational and social impairment with deficiencies in most areas, warranting an increase to a 70 percent rating for the whole period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. A TDIU. The Veteran seeks entitlement to a TDIU. See 11/3/2015 VA Form 21-8940; see also 1/11/2016 VA Form 21-4192. The Veteran has indicated that, since September 2002, he has been unemployable due to his service-connected PTSD. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran meets the percentage threshold for consideration of a TDIU for the entire appeal period. As relevant, service connection is in effect for PTSD at 50 percent from August 6, 2009, and this decision grants an increased disability rating of 70 percent for PTSD for the entire appeal period. As such, the Veteran meets the schedular criteria of 38 C.F.R. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In this case, the evidence of record establishes that the Veteran has a 2-year college education and last worked full-time in September 2002 as a wastewater treatment operator. See 11/3/2015 VA Form 21-8940; see also 1/11/2016 VA Form 21-4192. At the Board hearing in September 2020 before the undersigned, the Veteran testified that because of his service-connected PTSD, he has difficulty concentrating and relating to others, and experiences 3 or 4 anxiety attacks per week. See 9/3/2020 Hearing Testimony, at page 7. Regarding the Veteran’s psychiatric disorder, during the January 2015, January 2016, and March 2018 VA examinations, his symptoms were generally noted to include a depressed mood, anxiety, chronic sleep impairment, mild memory loss, and a flattened affect. Additionally, the Veteran had disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene. See 1/7/2015 C&P Examination; see also 1/8/2016 C&P Examination; 3/12/2018 C&P Examination. Based on the evidence above, and resolving doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected PTSD is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. In this regard, he is no longer able to maintain employment because of his lack of concentration as well as the requirement of being around others. Additionally, the evidence of record shows the Veteran is mostly socially isolated and has mood disturbances. In the Board’s review of the facts, to include the Veteran’s education, work history, and impairment from his service-connected PTSD, he has a complex disability picture that is incompatible with substantially gainful employment. The Board further finds that sedentary work is not a realistic option for the Veteran given his decreased concentration, mild memory loss, disturbances of motivation and mood, and neglect of personal appearance and hygiene. There is no indication that the Veteran would be able to secure and maintain a job in the modern work environment. Moreover, the evidence showed that due to his PTSD, the Veteran would not be able to successfully adapt to a substantially gainful position. In summary, the Board finds the evidence to be in equipoise with respect to whether the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that the Veteran’s service-connected PTSD is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.