Citation Nr: 21026221 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 19-24 912 DATE: April 30, 2021 ORDER Entitlement to an initial 70 percent rating for 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. Subject to the laws and regulations governing the award of monetary benefits, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Throughout the entirety of the initial rating period, the signs and symptoms of the Veteran's service-connected PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but has not exhibited total occupational and social impairment. 2. The Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1966 to July 1968 and in the U.S. Navy from November 1975 to November 1977. This appeal arose from July 2018 and December 2018 rating decisions. In October 2020, the Board remanded the claims for further evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.§ 7107(a)(2). The Board notes that in one of the remand directives, the Agency of Original Jurisdiction (AOJ) was instructed to refer the claim of entitlement to a TDIU rating to Director of Compensation Service for extraschedular consideration during any period in which the Veteran did not meet the schedular criteria. In March 2021, the AOJ issued the Supplemental Statement of the Case (SSOC), readjudicating the claims without referring the TDIU claim for extraschedular consideration. In April 2021, the AOJ notified the Veteran that the SSOC was issued prematurely. See April 2021 Subsequent Development Letter. However, based on this Board’s decision to grant herein an increased rating for the Veteran’s PTSD to a 70 percent evaluation for the entirety of the appeal period, the Veteran would meet the schedular rating criteria for TDIU for the entire appeal period in which a TDIU rating can be assigned. Thus, a remand is not necessary in this case to await referral for extraschedular consideration. Increased Rating For Service-Connected PTSD The Veteran’s PTSD is rated as 50 percent disabling prior to May 21, 2018 and as 70 percent disabling on and after that date, pursuant to Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. According to this relevant Diagnostic Code, 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 effective work and social relationships. Id. 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 General Rating Formula is of a “symptom-driven nature” and stipulates 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). Relevant symptoms are “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, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers 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. Turning now to the relevant evidence of the record, in a March 2017 VA Mental Health Note, the Veteran reported experiencing anxiety attacks in the setting of a difficult marriage. The Veteran reported being diagnosed with PTSD by a doctor. In an August 2018 VA Mental Health Note, it was reported that the Veteran had been inquiring about a possible diagnosis of PTSD for years. It was also noted that the Veteran sought treatment for anxiety and insomnia for years. He described intrusive memories of his military service. He endorsed difficulty socializing, even in small groups of trusted friends. He struggled with alcoholism for years. See September 2017 VA Medical Treatment Records (CAPRI). At the November 2017 VA Examination, the Veteran was diagnosed with PTSD and alcohol use disorder (moderate to severe). The examiner stated that the Veteran’s symptoms of anxiety, depression, and sleep impairment are due to a combination of both PTSD and alcohol use disorder. The examiner remarked that the other symptoms noted on the report were assigned to the Veteran’s alcohol use disorder. He experienced occupational and social impairment with deficiencies in most areas. The examiner opined that one third of the Veteran’s impairment was attributable to his PTSD, and two thirds of his impairment was attributable to his alcohol use disorder. The examiner indicated that it was a rough estimate. The Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. Of significant note in the behavioral observations was that the Veteran was tense, anxious, and very irritable. He came across very impatient when explaining things. He exhibited a lot of visible anger. There were hints of grandiosity and arrogance. The Veteran stated that “[he] just [doesn’t] care about anything.” He denied any suicidal intent, explaining that he could not do that to his kids. In a February 2018 VA Mental Health Note, the Veteran reported that he began drinking again. The assessment provided was that the Veteran reported a history of alcohol misuse to manage symptoms of depression, PTSD, and boredom. The Veteran indicated a moderate motivation for change. See June 2018 VA Medical Treatment Records (CAPRI). At the June 2018 VA Examination, the examiner opined that it was not possible to differentiate what symptoms were attributable to each of his diagnoses (PTSD and alcohol use disorder). The examiner explained that the diagnoses are independent of each other and result from separate etiologies. However, the examiner continued that the symptoms that compromise each disorder are similar and overlap significantly. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner opined that the symptoms of both disorders and their resulting impairment overlap significantly. Therefore, the examiner could not determine their individual impact without resorting to mere speculation. It was reported that he was separated from his current wife since last year. He was estranged from his two adult children due to his frequent relapses and impulsivity. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attack that occur weekly or less often, near continuous panic or depression, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, and inability to establish and maintain effective relationships. Regarding behavioral observations, there were no abnormalities notes. The Veteran was capable of managing his own affairs. In a Janaury 2019 VA Mental Health Note, the Veteran reported that he had “a lot going on.” He reported being “in the dumps” for a while due to financial stressors. The Veteran was trying to enroll in a 12-week PTSD study. The Veteran reported his mood to be terrible. He endorsed anhedonia and decreased energy. He denied any suicidal or homicidal ideations, and auditory or visual hallucinations. The Veteran’s judgment and insight were noted to be poor. See April 2019 VA Medical Treatment Records (CAPRI). At the May 2019 VA Examination, the examiner provided an additional diagnosis of unspecified depressive disorder. The examiner opined that the symptoms of depression and PTSD cannot be reliably distinguished and separated because there is a significant overlap between the symptoms and the two disorders, as well as interaction among the symptoms. The examiner also stated that the Veteran’s alcohol use disorder was currently in remission. The Veteran experienced occupational and social impairment with reduced reliability and productivity. The Veteran met with his son about twice a month and talked to him at least once a week. The Veteran spoke with his daughter once a week. He reported not having any other social contacts. The Veteran expressed wanting to become more involved in church again but has not been active in the last four months. The Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Regarding behavioral observations, there were no abnormalities noted. In a September 2020 VA Mental Health Note, the Veteran reported his mood to be depressed. He expressed that his depressed mood was constant. He denied any suicidal or homicidal ideations. The Veteran reported that his irritability was worse. The abnormalities noted in the mental status examination were that the Veteran’s judgment and insight were mildly impaired. At the February 2021 VA Examination, the Veteran experienced occupational and social impairment with reduced reliability and productivity. The Veteran remained friendly with his ex-wife. He was estranged from his daughter due to a disagreement. The Veteran got along well with his son. He had several friends with whom he socialized. The Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. There was nothing abnormal to note for the behavioral observations. The examiner indicated that “occasional alcohol abuse” was attributable to PTSD. The Veteran was able to manage his own affairs. In a February 2021 medical opinion, the examiner explained that the Veteran did not currently meet the diagnostic criteria for alcohol use disorder because he was in sustained remission. The examiner opined that the Veteran’s functioning over the entire claims period appeared to have been moderate and associated with situational triggers. His specific symptoms included low mood, motivation, anxiety, sleep concerns, and troubled social relationships. Initially, the Board acknowledges the November 2017 examination report which differentiates the Veteran’s PTSD symptoms and alcohol use disorder symptoms. The VA examiner only attributed the Veteran’s symptoms of depressed mood, chronic sleep impairment, and anxiety to his service-connected PTSD. However, in the subsequent June 2018 VA examination, the examiner opined that the symptoms from the disorders significantly overlapped and determined it was not possible to differentiate the symptoms. The February 2021 VA examiner indicated that the Veteran’s occasional alcohol abuse was attributable to his PTSD. Additionally, VA treatment records also document that the Veteran misused alcohol to deal with his PTSD symptoms. If it is not possible to distinguish between the respective symptoms because they are so intertwined, then the symptoms will be attributed to the service-connected disability. See 38 C.F.R. § §§ 3.102, 4.14; Mittleider v. West, 11 Vet. App. 181, 182 (1998). Resolving reasonable doubt, the Board attributes the Veteran’s psychiatric symptoms to his service-connected PTSD. After a thorough consideration of the evidence of the record, the Board finds that the Veteran’s psychiatric symptoms exhibited the severity level contemplated by the 70 percent rating criteria for the entirety of the appeal period. The evidence clearly depicts that, throughout the appeal period, the Veteran has experienced continuous depression and anxiety which significantly impaired his functional ability. He also experienced continuous irritability and anger. He also struggled significantly with socializing and maintaining his relationships. Thus, throughout the entirety of the appeal period, the severity, type, and frequency of the Veteran's PTSD symptoms rise to the severity level contemplated by the 70 percent rating. However, at no time during the entirety of the appeal period, has the Veteran exhibited total occupational and social impairment as a result of his PTSD, which is required for the next higher rating of 100 percent. During the multiple evaluations, the Veteran's behavior has always been appropriate. His appearance, such as grooming and attire, have been noted to be appropriate. He was interactive and able to communicate to the physicians. His thought process has always been noted to be normal. He has consistently denied any suicidal or homicidal ideations, as well as denied delusions and hallucinations, and he has never been deemed to pose any threat of danger of injury to himself or others. He has maintained a good relationship with his ex-wife and son. He also planned to get back involved in his church. Accordingly, the Board concludes that the Veteran is not entitled to a 100 percent rating for his PTSD at any time during the appeal period. Entitlement to a TDIU A total disability rating for compensation purposes 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 as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As initially stated, with the Board’s grant of 70 percent for the Veteran’s service-connected PTSD, the Veteran meets the schedular rating criteria under 38 C.F.R. § 4.16 for the entire appeal period concerning the Veteran’s TDIU claim, which would be from April 12, 2016. See 38 U.S.C. §§ 5107 (b), 5110(a), (b); 38 C.F.R. § 3.400; see also Ross v. Peake, 21 Vet. App. 528, 534 (2008) (holding that the effective date for TDIU cannot be earlier than the date of claim for the service-connected disability that established entitlement to TDIU). Thus, the Board must decide whether the Veteran is unable to secure or follow substantially gainful occupation due to his service-connected disabilities, to include if he is capable of performing the physical and mental acts required by employment. In this regard, and specifically relating to the Veteran’s educational and occupational history, he has an undergraduate degree in health management and a Masters’ degree in hospital administration. He reported working in retail after separating from service. He then became an alcohol counselor. He also worked in the real estate business and was successful for many years. In November 2017, the Veteran reported that he had not worked at all for some time. On the May 2019 Veterans Application for Increased Compensation based on Unemployability (VA Form 21-8940), the Veteran reported his last job was as a driver for a ride-sharing company. He reported he worked from May 2014 to May 2018. He indicated he worked 10 hours per week. In June 2018, the VA examiner opined that due to his PTSD, the Veteran experienced difficulties in attention, concentration and focus. He also exhibited difficulties in functioning around other people and being a team member. In May 2019, the VA examiner opined that the Veteran’s psychiatric symptoms, such as apathy and anhedonia, undermine his desire to connect with others. His symptoms impaired his ability to work cooperatively and effectively with others, to a moderate extent. The Veteran’s symptoms of impaired concentration, intrusive thoughts, and psychological reactivity impaired his ability to understand and follow instructions, retain new information, communicate effectively, and solve technical or mechanical problems, to a mild extent. The examiner concluded that the Veteran’s apathy and fatigue impaired his ability to maintain task persistence and pace, arrive timely to work and work a regular schedule without excessive absences, to a moderate extent. On the examinations regarding the Veteran’s service-connected physical disabilities, such as his low back and associated lower extremity radiculopathy, it was determined that his back condition prevented him from performing physical labor that included lifting, bending, and twisting and also limited his ability to sit or stand for greater than 10 minutes. See June 2018 and May 2019 VA Examination Reports for Back Conditions. After a thorough consideration of the evidence of the record, to include the Veteran's educational and occupational history and his limitations resulting from his service-connected disabilities, and in resolving reasonable doubt in his favor, the Board finds that the evidence shows that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The evidence clearly depicts that the Veteran's psychiatric disorder significantly impacts his mental ability to concentrate, focus and effectively work with others. It has been consistently documented that he experiences difficulty in adapting to stressful circumstances and maintaining effective relationships. His back disability significantly impacts his physical ability to perform tasks such as lifting, standing, and walking—and also limits him in sitting for prolonged periods of time, which would significantly impair his ability to perform even light physical labor. When considering the evidence in its totality, the Board finds that the Veteran's service-connected disabilities renders him unable to perform both the physical and mental acts of employment. Accordingly, the Board finds that the criteria for entitlement to a TDIU have been met. A TDIU is, therefore, granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.