Citation Nr: 21025899 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 12-20 443 DATE: April 29, 2021 ORDER An initial 70 percent rating from August 30, 2004 to February 13, 2013 for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disorders from August 30, 2004 is granted. The application of the combined ratings table was proper. FINDINGS OF FACT 1. With resolution of the doubt in his favor, from August 30, 2004 to February 13, 2013, the severity of the Veteran’s PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and mood due to suicidal ideation, impaired impulse control, near-continuous depression, difficulty in adapting to stressful circumstances and the inability to establish and maintain effective relationships. 2. With resolution of the doubt in his favor, from August 30, 2004 and continuing thereafter, the Veteran’s service-connected disorders precluded him from securing or following a substantially gainful occupation. 3. The Veteran’s PTSD rated 70 percent disabling and tinnitus rated 10 percent disabling resulted in a combined value of 73, divisible by 10 and converted to a final degree of 70. CONCLUSIONS OF LAW 1. The criteria to establish an initial 70 percent rating from August 30, 2004 to February 13, 2013 for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria to establish a TDIU from August 30, 2004 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). 3. The application of the combined ratings table resulting in a combined 70 percent evaluation for compensation was proper. 38 U.S.C. § 1155; 38 C.F.R. § 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1968 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated December 2010, April 2013 and March 2015 of the Huntington, West Virginia and Portland, Oregon Regional Office (RO). In January 2021, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In April 2016, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114(k), (s) and 38 C.F.R. § 3.350(a), (i) on account of loss of use of a creative organ and on account of prostatic adenocarcinoma rated 100 percent disabling and additional service-connected disorders independently ratable at 60 percent or more from November 3, 2020. Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. PTSD PTSD is evaluated under the General Rating Formula for Mental Disorders. A 50 percent rating is warranted 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted when there is 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 the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is 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. Id. The U.S. Court of Appeals for the Federal Circuit has noted the “symptom-driven nature” of the General Rating Formula and that “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.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, if the evidence shows that a Veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Veteran’s PTSD is rated 50 percent disabling from August 30, 2004 to February 13, 2013 and 70 percent disabling from February 14, 2013 and continuing thereafter. The appellate period is from August 30, 2004. As an initial matter, although the Veteran has not been afforded a VA examination of his PTSD since February 2013, the Board finds that the medical evidence of record in this case is not too old to adequately evaluate his disorder. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (another VA examination is not warranted based on the mere passage of time). In his January 2021 Board hearing, the Veteran testified that the symptoms of his PTSD “have always been that 70 percent rating” and no competent evidence, by or on behalf of the Veteran, has been submitted which suggests that the Veteran’s PTSD has become worse in the period since the February 2013 VA examination. See Counts v. Brown, 6 Vet. App. 473, 478-79 (1994). In an August 2004 statement, the Veteran reported experiencing trouble sleeping, flashbacks, anxiety attacks and trouble with crowds. In a December 2004 VA treatment record, the Veteran reported experiencing anxiety, trouble with sleeping and a depressed mood. The Veteran quit his job in September “in anger” because there was not much work for him to do. It was noted that the Veteran experienced “periods of some suicidal ideation.” The Veteran also experienced periods of increased agitation, anxiety, depression, increased energy, racing thoughts and rapid speech. The Veteran was observed as having normal thought process, content and no evidence of psychosis. The presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas and must be considered with other evidence. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In a December 2004 VA examination, the Veteran reported experiencing depression two weeks every month, irritability, anxiety, decreased motivation, trouble with concentration, panic attacks, decreased pleasure, increased appetite and trouble sleeping. The Veteran previously divorced due to his verbal outbursts and he “continues to be explosive for no reason” to his then-current wife of two years. The Veteran described his explosiveness as talking in a loud voice with degrading comments. The Veteran indicated that he was a loner and had no friends. The examiner observed the Veteran as having normal hygiene and grooming. The Veteran’s behavior, comprehension, clearance of response and emotional reaction were normal with no signs of tension. He was oriented to all spheres and exhibited a normal affect and a depressed mood. The Veteran denied experiencing suicidal ideation, homicidal ideation and displayed normal thought process and content. There were no delusions or hallucinations. His concentration and memory were intact. In a February 2005 statement, the Veteran reported experiencing improved sleep, improved mood, stress, anxiety, “snapping” at his wife and social isolation. He denied experiencing suicidal and homicidal ideation. In a May 2005 VA treatment record, the Veteran reported experiencing depression, anxiety, paranoia, trouble with attention, irritability, trouble sleeping. He denied experiencing suicidal and homicidal ideation. The Veteran was observed as being well groomed and cooperative, and he displayed a normal mood, speech and thought process. His memory, cognitive functioning and judgment were normal. The Veteran reported experiencing auditory hallucinations described as hearing voices from past experiences. A December 2005 non-VA treatment record reflects the Veteran’s report of experiencing anxiety, depression, social isolation, hypervigilance and irritability. An April 2006 VA treatment record reflects the Veteran’s report of experiencing irritability and depression. The Veteran was observed as being irritable and displaying a constricted affect. The Veteran denied experiencing suicidal and homicidal ideation. In a May 2006 VA treatment record, the Veteran reported experiencing improved sleep and occasionally hearing voices. The Veteran was observed as having normal hygiene, euthymic mood and constricted affect. In a July 2006 VA treatment record, the Veteran reported experiencing anxiety, depression, decreased irritability, and social isolation. The Veteran enjoyed gardening and used avoidance behaviors to cope with stress. The Veteran was observed as appropriately dressed and being in a euthymic mood. An October 2007 VA treatment record reflects the Veteran’s report of experiencing trouble with memory. In his January 2010 VA examination, the Veteran reported experiencing anger, irritability, depression, sadness, anxiety and trouble with sleeping. The Veteran was then married to his second wife and described as a “good marriage” but that it had it “ups and downs.” The Veteran enjoyed fishing, going to the mountains, watching television, collecting antiques and gardening. The Veteran reported having overreacted one day while disciplining his son. The Veteran was observed as casually dressed, adequately groomed, cooperative, oriented to all spheres, and he displayed normal speech and normal memory. He denied experiencing suicidal and homicidal ideation. In a February 2011 VA treatment record, the Veteran reported experiencing irritability and getting “snappy” with his wife. He denied experiencing suicidal and homicidal ideation. In his April 2011 notice of disagreement, the Veteran reported experiencing stress, work tardiness, irritability and trouble with concentration. In a July 2011 VA treatment record, the Veteran denied experiencing suicidal and homicidal ideation. In his February 2013 VA examination, the Veteran was diagnosed with PTSD and the examiner indicated that the Veteran did not have more than one diagnosed psychiatric disorder. The Veteran lived with his then-current wife of ten years and had a strained relationship with his three adult children. The Veteran reported having no friends and no involvement in social activities. The Veteran’s symptoms were depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; suicidal ideation; obsessional rituals which interfere with routine activities; and persistent delusions or hallucinations. The examiner summarized the Veteran’s total impairment as occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a January 2014 VA treatment record, the Veteran reported experiencing a normal mood, adequate rest and sufficient energy. He denied experiencing suicidal and homicidal ideation. In a July 2020 VA treatment record, the Veteran reported experiencing trouble sleeping, normal appetite, normal energy, and irritability. He denied experiencing suicidal and homicidal ideation. The Veteran performed yard and mechanical work most days. In a September 2020 VA treatment record, the Veteran denied experiencing suicidal and homicidal ideation. In his January 2021 Board hearing, the Veteran testified to having no friends, experiencing irritability with people and described a verbal incident with a co-worker. The Veteran testified to a quick temper with his wife and that his service dogs kept him calm. The Board will grant a 70 percent initial rating from August 30, 2004 to February 13, 2013 for the Veteran’s PTSD based on the benefit-of-the-doubt doctrine. The Veteran experienced impaired impulse control as evidenced by verbal outbursts toward his wife and co-workers. The Veteran has consistently reported experiencing depression. The Veteran experienced difficulty in adapting to stressful circumstances due to having quit his job as a result of stress. The Veteran was unable to establish and maintain effective relationships as evidenced by having strained relationships with his children and having no social friends or activities. Although the Veteran has denied experiencing suicidal ideation on several occasions, a December 2004 VA treatment record noted that the Veteran experienced “periods of some suicidal ideation.” The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an initial 70 percent rating is warranted and the claim is granted. A preponderance of the evidence is against a finding of a 100 percent initial rating for the entirety of the rating period on appeal. The Veteran has been consistently observed as having a normal thought processes and behavior. Although the Veteran has experienced suicidal ideation, there was no indication that the Veteran was in a persistent danger of hurting himself or others. The Veteran has been observed as well-groomed and able to perform activities of daily living. The Veteran has experienced memory loss but there was no indication that the Veteran forgot his name, occupation or close relatives. Although the Veteran indicated having experienced auditory hallucinations, the Veteran reported experiencing such since childhood. Therefore, a 100 percent initial rating is not warranted and the claim is denied. TDIU TDIU may be assigned, 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 that, 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). The Veteran’s service-connected disorders include prostatic adenocarcinoma rated 100 percent disabling from November 3, 2020 and continuing thereafter; PTSD rated 70 percent disabling from August 30, 2004 and continuing thereafter; diabetes mellitus type II rated 20 percent disabling from November 3, 2020 and continuing thereafter; tinnitus rated 10 percent disabling from August 30, 2004 and continuing thereafter and bilateral hearing loss rated noncompensable from August 30, 2004 to November 2, 2020 and 10 percent disabling from November 3, 2020 and continuing thereafter. The Veteran has met the schedular criteria under § 4.16(a) effective August 30, 2004. The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. Thus, the central question is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The evidence reflects that the Veteran was unemployed in November 2003. In his VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported he was enrolled in culinary school from August 2008 to December 2009 and that he dropped out due to health problems. In his January 2021 Board hearing, the Veteran testified that he stopped working for the Federal Government in 2013 and his attempts at other jobs were unsuccessful due to his inability to get along with co-workers. The Veteran indicated having worked several jobs after 2013 but his PTSD impacted his ability to work. The Board will grant a TDIU from August 30, 2004 based on the benefit-of-the-doubt doctrine. The evidence reflects that for the entirety of the rating period on appeal, the Veteran’s service-connected PTSD impacted his ability to work due to his inability to establish and maintain effective work relationships and impaired impulse control. The Veteran was unemployed in November 2003 due to stress and he dropped out of culinary school in December 2009 due to health concerns. Although the Veteran attempted to work several jobs after 2013, the Veteran was unable to get along with his co-workers. Significantly, the Veteran is rated 100 percent disabling from November 3, 2020. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a TDIU is warranted and the claim is granted. Combined evaluation In various letters, the Veteran has alleged that his combined disability evaluation should be calculated mathematically to result in a periodically higher combined evaluation. In his May 2013 notice of disagreement (NOD), the Veteran contended that the combined evaluation for his service-connected PTSD rated 70 percent disabling and tinnitus rated 10 percent disabling should combine to a total evaluation of 80 percent. By law, VA is required to use a “Combined Ratings Table,” located at Title 38, Code of Federal Regulations, Section 4.25 (“Table). The Table does not use a mathematical calculation to determine the combined rating. Instead, it calculates a combined rating for the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. The result is that often the combined ratings of all a person’s disabilities will be lower than the sum of the individual disabilities. See 38 C.F.R. § 4.25. The Board is bound by applicable statutes, VA regulations, and precedent opinions of the General Counsel of the VA and is without authority to revise them. 38 C.F.R. § 19.5. Therefore, the Board does not have any authority to calculate the Veteran’s overall disability rating utilizing any method other than the Combined Ratings Table and 38 C.F.R. § 4.25. See Moody v. Wilkie, 30 Vet. App. 329 (2018) (directing use of the combined ratings table). To use Table I, the disabilities are first arranged in the exact order of their severity, beginning with the greatest disability, and then combined with use of Table I. For example, if there are two disabilities, the degree of one disability will be read in the left column and the degree of the other in the top row, whichever is appropriate. The figures appearing in the space where the column and row intersect will represent the combined value of the two. This combined value will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. Thus, with a 50 percent disability and a 30 percent disability, the combined value will be found to be 65 percent, but the 65 percent must be converted to 70 percent to represent the final degree of disability. Similarly, with a disability of 40 percent, and another disability of 20 percent, the combined value is found to be 52 percent, but the 52 percent must be converted to the nearest degree divisible by 10, which is 50 percent. Id. When the Veteran submitted his May 2013 NOD, the Veteran’s service-connected disabilities were PTSD rated 50 percent disabling from August 30, 2004 to February 13, 2013; 70 percent disabling from February 14, 2013 and continuing thereafter, and tinnitus rated 10 percent disabling from August 30, 2004 and continuing thereafter. As noted above, the Veteran’s PTSD is rated 70 percent disabling from August 30, 2004 and continuing thereafter. (Continued on next page) Under Table I, the Veteran’s PTSD rated 70 percent disabling from August 30, 2004 is read as 70 in the left column. The Veteran’s tinnitus rated 10 percent disabling from August 30, 2004 is read as 10 in the top row. The figure “73” appears in the space where the column and row intersect which represents the combined value of the two service-connected disorders. The combined value of 73 will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. The “73” combined value does not end in 5 or higher and must be converted to 70 to represent the final degree. Therefore, the application of the combined ratings table resulting in a combined 70 percent evaluation for compensation was proper. The claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.