Citation Nr: 21027686 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-59 905 DATE: May 6, 2021 ORDER Entitlement to a disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted on and after August 18, 2014, subject to the laws and regulations governing the payment 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. On and after August 18, 2014, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. The Veteran's service-connected disability has met the percentage requirements for the award of a schedular TDIU, and the evidence indicates that the nature and severity of that disability prevents him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, on and after August 18, 2014, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for the award of a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1963 to June 1966. These matters are on appeal from an August 2015 rating decision. These matters were previously remanded by the Board in April 2019 to afford the Veteran an opportunity to submit additional evidence or argument. The Agency of Original Jurisdiction (AOJ) has done so. There was therefore substantial compliance with the remand directives with regard to the issues being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to notify was satisfied by a January 2015 letter. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2020); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service medical treatment records, VA medical treatment records, VA vocational rehabilitation records, and private medical treatment records have been obtained. The Veteran underwent VA examinations relating to PTSD in June 2015 and March 2020. The VA examinations are adequate because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe his psychiatric symptoms in detail sufficient to allow the Board to make fully informed determinations. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). 1. PTSD The Veteran contends that his PTSD warrants a higher rating than that currently assigned. It is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD, with a 30 percent rating from November 3, 2005 to January 17, 2015 and a 50 percent rating on and after January 17, 2015. VA received the Veteran's claim for an increased rating on January 17, 2015. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "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). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed. Hart, at 509; see also 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2). The effective date for a rating increase can be up to one year earlier than the date of the claim if it is factually ascertainable, based on all evidence of record, that an increase in disability occurred within one year of the date of claim. 38 C.F.R. § 5110(b)(3); 38 C.F.R. § 3.400. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, occupation, or own name. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. See VazquezClaudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). During a February 18, 2015 VA treatment appointment, the Veteran reported increased memory and concentration problems, including forgetting to bring trash cans out from the house and getting lost while driving. He added that his spouse had to remind him of things on a daily basis. He also reported that he worked on a printing press until 2008 and stopped not so much for physical reasons but because "emotionally I just could not handle it any longer." He reported that he started crying fairly easy about "3-4 years ago" and, for the past six months, had felt more anxious and depressed, with intermittent suicidal ideation but no plans, intent, or attempt. The treatment provider noted that the Veteran had a tic with jerk of his head to the left; the Veteran reported that this increased with stress. He also reported that his memory and concentration problems had worsened. He cried very easily without much prompting when beginning to describe his symptoms. He also reported nightmares and occasional difficulty distinguishing dreams from reality. The Veteran's suicidal ideation was fleeting and intermittent. The Veteran was afforded a VA examination in June 2015, by a clinical neuropsychologist. The neuropsychologist diagnosed PTSD. The Veteran reported that he had been married to his current spouse for ten years and that it was going well. He had one child. He also reported social impairment due to anhedonia and increased arousal, isolating and spending time at home. He reported that he was capable of performing activities of daily living and did them routinely. He reported that he retired due to difficulty concentrating. He also reported that his current symptoms included nightmares, poor concentration, and forgetfulness, including difficulty retaining information when reading. The neuropsychologist listed the Veteran's symptoms for rating purposes as depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. The Veteran was alert and oriented and appeared to provide an accurate history. He denied suicidal and homicidal ideation. He displayed a left head turn tic that worsened when answering questions. The neuropsychologist characterized the Veteran's overall level of functional impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with a 30 percent rating. The Veteran has submitted an October 2015 examination report by a private psychiatrist. The Veteran reported that he had two brothers and two sisters but had lost one brother and one sister in the past year. He also reported that he had been self-employed as a printer for 32 years. He reported sleeping one to two hours per night. He also reported feeling sad for no reason and without warning. He characterized his marriage as good and reported that his spouse "looks after" him and had been very supportive. He reported having some friendships but not seeing friends often because he was at home with his spouse. He reported seeing his grandchildren, who were between the ages of three and five, often and that these were the children of his stepdaughter. He reported good relationships with his son and siblings and that he communicated often with his siblings. He added that "they all try to take care of" him. The Veteran also reported that focus and concentration had become problematic for him and that he had become easily distractible, unable to complete a task from beginning to end. He reported that his short-term memory had become very difficult and he relied a great deal on his spouse to organize him and remind him of important dates and appointments. He reported feeling distant and cut off from other people, but also irritated and irritable, angered by little things. He reported being generally guarded and scanning his surroundings for danger, startling easily. He also reported feeling sad most of the time, crying more than in the past, getting restless and agitated more than usual, and being unable to concentrate or keep his mind on one thing for long. The psychiatrist found that the Veteran had major impairment in several areas of functioning, including impairment in work, house work, social and family relationships, and decision making. The Veteran had been avoiding his friends and did not feel he wanted to be around them. He reported fighting or arguing with his spouse frequently but also depending on her to decide for him. He reported getting confused when facing complicated tasks requiring a lot of thinking. He also reported not trusting people and getting very anxious and keyed up wherever he went. He reported being very moody, getting easily angry and snappy, and feeling agitated without a reason at times. He also reported feeling overwhelmed with fear and anxiety to the point he could not function and feeling he had to check the house and the perimeter for safety all the time. He added that he would probably commit suicide if not for his religion. During a June 2018 VA treatment appointment, the Veteran reported sometimes hearing knocks on the door when no one was there. He also reported hearing things moving in the house every day when no one was there. He ignored these noises. During an October 2019 VA treatment appointment, the Veteran reported hearing voices mumbling but not understanding what they were saying. The Veteran was afforded an additional VA examination in March 2020, by a psychologist. The psychologist diagnosed PTSD. The Veteran reported that he remained married and characterized his marriage as "really good." He also reported a good relationship with his son, who was from a prior marriage, and that he had four grandchildren. The psychologist listed the Veteran's symptoms for rating purposes as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The psychologist added that the Veteran appeared to be a reliable historian. The psychologist added that the Veteran's symptoms also included intrusive memories, nightmares, unease around crowds, some hypervigilance, being easily startled, and prone to depressed mood. With regard to occupational functioning, the Veteran reported that he retired when he could no longer meet production goals due to difficulty moving quickly and focusing. The psychologist found that, due to the Veteran's PTSD symptoms, he would work most productively in an environment with little chaos and distraction and might require time accommodations to manage trouble focusing. The psychologist characterized the Veteran's overall level of functional impairment as occupational and social impairment due to mild or transient symptoms, which is consistent with a 10 percent rating. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his psychiatric symptoms and overall disability picture warrant an evaluation of 70 percent for PTSD on and after August 18, 2014. During that period, the record contains evidence of suicidal ideation and difficulty in adapting to stressful circumstances. For these reasons, the Board finds that Veteran's symptoms most nearly approximate those that warrant a 70 percent rating. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Because, during the February 18, 2015 VA treatment appointment, the Veteran reported that his suicidal ideation and other symptoms worsened six months prior, the Board finds that there was a factually ascertainable increase in disability as of August 18, 2014. A 70 percent rating is therefore warranted on and after August 18, 2014. The Board does not, however, find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran's symptoms at any point during the period on appeal. The record does not contain evidence of any of the symptoms listed in the criteria for a 100 percent rating or symptoms similar to those listed in the 100 percent rating criteria, with the possible exceptions of persistent hallucinations or danger of harm to himself or others. Self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, the record does not show that the Veteran's suicidal ideation is of the severity needed to accurately describe a "persistent" danger to himself or others. He did not report a plan to act on his ideation. The record is also unclear as to whether the noises the Veteran reported hearing were auditory hallucinations or attributable to other causes. However, even the constant presence of some symptoms listed in the criteria for a 100 percent rating would be insufficient because the overall guiding criterion for a 100 percent rating is that both total occupational and total social impairment be present. 38 C.F.R. § 4.130; see, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Veteran's symptoms have not been shown to be so severe that he has both total occupational and total social impairment. The Board acknowledges that, in this decision, it has found the Veteran to be unemployable due to his service-connected PTSD. However total social impairment is not shown. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). The Veteran has been able to maintain some personal relationships, specifically with his spouse, son, stepdaughter, grandchildren, siblings, and friends. The Board acknowledges that these relationships are sometimes strained or distant, but that is reflected in the current 70 percent rating for "deficiencies in most areas," the criteria for which include inability to establish and maintain effective relationships. Because the Veteran is not totally socially impaired, a 100 percent rating is not warranted. The Board also notes that many of the Veteran's reported symptoms throughout the period on appeal are included among those specifically listed in the General Rating Formula for Mental Disorders, pursuant to which a 70 percent disability rating has been assigned. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran's extent of occupational and social impairment. Accordingly, in this case, the Board finds that the existence and severity of the Veteran's psychiatric symptoms are adequately contemplated by the 70 percent rating criteria. As noted above, many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board has also considered the Veteran's assertions regarding his psychiatric symptoms, which he is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The lay evidence is also credible. The symptoms described in those lay statements comport with the 70 percent rating that has now been assigned. However, these lay statements do not provide any basis upon which to assign a higher rating because they do not reflect total social impairment. In sum, the Board finds that, resolving reasonable doubt in the Veteran's favor, his impairment due to PTSD has been most consistent with a 70 percent disability rating throughout the period on appeal. 2. TDIU VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Veteran's only service-connected disability is PTSD and, after the increased rating granted above, it is rated 70 percent disabling on and after August 18, 2014. The criteria for consideration of a schedular TDIU are therefore met throughout the period on appeal. The Board has discussed the evidence regarding occupational impairment caused by the Veteran's PTSD in the context of the increased rating claim above. In his November 2015 TDIU claim, the Veteran reported that he had last worked full-time as a pressman in January 2009 and that, from 1973 to 2008, he worked full-time for a printing company. Elsewhere, the Veteran clarified that this was self-employment. He reported four years of college but no other education or training. The Veteran has reported that, in addition to social impairment such as isolation and irritability, the primary impact of his PTSD on employment is its effect on concentration, focus, and memory. The Veteran has reported inability to complete or understand tasks and that he relies on his spouse's support for tasks involving organization and memory. The March 2020 VA examiner opined that the Veteran would function most productively in an environment with little chaos and distraction and might require time accommodations to manage trouble focusing, but the Veteran reports that he was already working by and for himself and was still unable to keep up with the necessary pace of production due to a combination of physical and concentration issues. Elsewhere, he clarified that the impairment to concentration was the primary factor in his retirement. The ability to focus and concentrate is essential to any job, but particularly to self-employment. The Veteran's sole employment for more than three decades prior to his retirement was as a pressman and he has reported credibly that he became unable to continue in this job due to impaired focus and concentration. He was already his own employer and therefore in the position to give himself any necessary accommodations, but still had to retire due to his impairment. The Board finds that the Veteran's PTSD symptoms effectively preclude any gainful employment for which his education and occupational experience would otherwise qualify him. The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected disability renders him unemployable under the applicable regulations. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.