Citation Nr: 21027095 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-39 069 DATE: May 4, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's PTSD is not manifested by total occupational and social impairment. 2. The Veteran's service-connected disabilities render him unable to maintain gainful employment. CONCLUSIONS 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 FINDINGS AND CONCLUSIONS The Veteran had active service from December 1991 to May 1993. The Veteran had a hearing before the undersigned Veterans Law Judge in September 2020. A partial transcript is associated with the file. In March 2021, the Veteran was sent a letter notifying him of the incomplete transcript and offering him a new hearing. The Veteran did not respond. Therefore, a new hearing was not provided and the matters will be adjudicated on the current record. 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. 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 an August 2017 statement, the Veteran's representative said the Veteran had attempted suicide three times, although he hasn't attempted recently. The Veteran couldn't sit still and continued to be watchful. The Veteran was on medication for his mental health and without it, he would not be able to function properly. The Veteran was working, but it was minimal and would miss more days than he actually works. In September 2020, a former employer submitted a statement. The employer said the Veteran was a friend and that the Veteran had been terminated from pervious jobs. The friend said the Veteran was tardy a lot and would just not show up to work regularly. The friend also said the Veteran sometimes had hygiene issues that made it not appropriate for him to be around customers. The friend reported the Veteran had aggressive outbursts when upset and drinking problems and the Veteran was ultimately fired. In his September 2020 hearing, the Veteran said that his isolation and not wanting to be around people had gotten worse. The Veteran also said he had developed stomach issues, constantly worrying about how people viewed him, always being on the defensive, with major anxiety, and lack of hygiene. The Veteran said he had kind of just "given up" on his hygiene. The Veteran also said that he had suicidal ideations and had once put a gun to his head and that he had sought counseling for his condition. The Veteran said currently, he was not seeking treatment for his PTSD. The Veteran also submitted a statement in January 2021 recounting what happened to him in service and how he felt afterwards. The Veteran said he continued to feel humiliated about his abuse while in service, continued to feel fury and hate about what happened to him, and that he was not a normal human being anymore. The Veteran had an examination for his PTSD in June 2016. The examiner opined the Veteran's PTSD led to occupational and social impairment with reduced reliability and productivity. The Veteran had no contact with his parents or siblings but had been married and divorced. The Veteran had contact with his children and was working on those relationships and was in a healthy relationship at the time. The Veteran was in counseling and had stopped drinking after a car accident and DUI in February 2016. The Veteran worked construction since 2014 and his boss was very understanding and supportive of the Veteran's situation. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, inability to establish and maintain effective relationships, and suicidal ideations. The examiner noted the Veteran had three serious attempts at suicide, but for the past year and a half, he had not had any attempts and denied any suicidal ideations. The Veteran had another examination for his PTSD in March 2017. The examiner opined the Veteran's PTSD led to occupational and social impairment with deficiencies in most areas. The examiner reviewed the Veteran's file and saw him in person. The examiner reported the Veteran had been in a long-term relationship with his girlfriend and that they were in couple's therapy. The Veteran was trying to repair is relationship with his younger children and had virtually no contact with his older children due to his past behaviors and alcohol consumption. The Veteran said he had no contact with this siblings or family. The Veteran said he was close with his girlfriend and her family and that while he didn't see his old friends, he was making new relationships in group therapy. The Veteran reported not working a lot and that his foreman was very understanding, allowing him to work alone as much as possible. The Veteran reported feeling paranoid, having nightmares nightly, had flashbacks, panic attacks, and anger. The examiner also noted the Veteran's symptoms included depressed mood, suspiciousness, near-continuous panic attacks, chronic sleep impairment, mild memory loss, flattened affect, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and impaired impulse control. The examiner observed the Veteran was groomed and dressed appropriately, anxious, and tearful. The Veteran was oriented, with normal thoughts and intact memory. The Veteran had no delusions or hallucinations but was anxious and had difficulty focusing with increased anxiety. The Veteran's judgment and insight were fair. The Veteran did not report any current suicidal or homicidal ideations and that since he got sober, he had no suicidal ideations. The examiner reported there was a worsening of the Veteran's symptoms, especially in the Veteran's ability to interact with others, thinking others are aware of his military sexual trauma. In his efforts to avoid lashing out, the Veteran avoids people and leaves work early and that his ability to work with others was "significantly impaired." The Veteran's medical records indicate he continues to seek treatment and has often reported feeling depressed, anxious, and irritable. Additionally, the record shows the Veteran continues to have difficulty around other people, had previous suicide attempts (but none since he stopped drinking alcohol), panic attacks, intrusive thoughts, flashbacks, avoidance, hypervigilance, and an exaggerated startle response. Consistently, however, the Veteran denied current suicidal ideations and was found to be appropriately dressed and groomed, with normal speech. (See e.g. October 2016, February 2017, April 2017 treatment records.) Pertaining to his occupational impairment, the Veteran is not totally unable to work due to his PTSD. The Veteran has been able to maintain a part-time job for several years, along with the help of a very supportive employer who accommodates him. However, it is clear the Veteran's PTSD leads to significant difficulties interacting with the public and other co-workers and also create problems with showing up on time, or at all. Additionally, a former employer said that the Veteran's personal hygiene and angry outbursts rendered him unable to perform his job. Regarding his social impairment, the Board notes that while the Veteran's relationship with many of his family members is strained, he has a steady, long-term girlfriend, and has made some friendships in group therapy. The Board notes the Veteran's former employer considers the Veteran a friend and that the Veteran continues to make efforts to have relationships with his younger children and has relationships with his girlfriend's family. 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 noted above, the Veteran is not completely social impaired as he does have a girlfriend, a relationship with her family, is making friends in group therapy, and is still working to repair his relationship with his younger children. The Board notes the Veteran's PTSD leads to almost complete occupational employment as his PTSD leads to great absenteeism and the ability to only work part-time with an extremely understanding employer. However, as severe as his PTSD is, the Board finds a higher rating is not warranted based on the above discussion and the fact that 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. While the Veteran has previous suicide attempts, the evidence shows the Veteran has not had suicidal ideations recently. 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, even though the transcript was cut off. Additionally, the Veteran submitted a statement around the since his hearing, again reporting his current symptoms. The Veteran stated at his hearing that he wasn't currently seeking treatment for his PTSD so there are no current medical records to obtain. 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 and medical records on file 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, along with his other service-connected disabilities, is of such concern as to warrant a TDIU (a 100% rating), 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). The Veteran's combined disability rating is 70 percent, with his PTSD rated as 70 percent disabling. Additionally, the Veteran is service-connected for the following: Tinnitus, rated as 10 percent disabling, A left finger disability, rated as noncompensable, and Left ear hearing loss, rated as noncompensable. The Veteran completed high school and two years of college. The Veteran currently works in construction, working 15 to 20 hours per week, earning approximately $12,400 per year. (See August 2016 Application for Increased Compensation Based on Unemployability.) The Board finds that while the Veteran is working, it is marginal employment and does not preclude an award of a TDIU. In August 2016, the Veteran's employer confirmed his work hours and also noted that he frequently missed work due to personal reasons. A September 2016 examiner opined the Veteran's left finger problem impacted his ability to work because his job required heavy lifting and gripping with his left hand that may be painful. A hearing loss examiner in the same month opined hearing loss impacted ability to work because he had to ask people to repeat what they said, which could lead to not hearing measurements at work. The Veteran's tinnitus impacted ability to work because it was always there was annoying. The Veteran said he impacts his sleep and may cause his headaches. As discussed above, the Veteran's PTSD clearly leads to significant problems with employment, leading to occupational impairment with deficiencies in most areas. The Veteran clearly struggles around others, feeling unsafe, paranoid, angry, and anxious, making it difficult for him to work with the public or with others. Even when allowed to work alone with accommodation, the Veteran clearly struggles to work, even a part-time job. Additionally, his left finger disability would make gainful physical employment or even typing work to be unfeasible. Therefore, the Board finds the combination of the Veteran's physical and mental service-connected disabilities render him unable to maintain gainful employment and thus, a TDIU is warranted. 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.