Citation Nr: 21027981 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-52 475 DATE: May 10, 2021 ORDER Entitlement to an initial evaluation of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) effective December 6, 1999, to March 20, 2012, is granted. Entitlement to an effective date of December 6, 1999, for the Veteran's total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence reveals that the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas from December 6, 1999, to March 20, 2012. 2. The Veteran's PTSD has precluded the Veteran from obtaining and maintaining substantial gainful employment since the effective date of service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation of 70 percent, but no higher, from December 6, 1999, to March 20, 2012, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to an effective date of December 6, 1999, for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1948 to February 1950 and November 1952 to August 1954, to include service in the Korean War. The matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2000 and May 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2020 Board decision, the Board denied an initial rating in excess of 30 percent for PTSD from December 6, 1999, to September 26, 2001, and in excess of 50 percent prior to August 12, 2012. The Board decision also granted a 70 percent rating from August 12, 2010, to March 20, 2012, and an award of TDIU effective August 12, 2010. The Veteran has a 100 percent disability rating, effective March 21, 2012, pursuant to an April 2013 rating decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In November 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's March 2020 denial of an initial rating in excess of 30 percent prior to September 26, 2001, in excess of 50 percent prior to August 12, 2010, and an award of TDIU prior to August 12, 2010, and remanded the matter to the Board for compliance with the instructions included in the parties' JMPR. The Court did not disturb the favorable findings in the March 2020 Board decision, namely, the grant of a 70 percent rating from August 12, 2010, to March 20, 2012, and an award of TDIU, effective August 12, 2010. The Court noted that the Veteran abandoned his appeal as to the denial of a rating in excess of 70 percent from August 12, 2010, to March 20, 2012. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency 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. DC 9411, for PTSD, is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. In relevant part, the rating criteria are as follows: A 70 percent rating is warranted where 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 1. Entitlement to an initial evaluation of 70 percent, but no higher, for PTSD prior to March 21, 2012 The Board finds that based on the review of the lay and medical evidence regarding the Veteran's occupational and social impairment that the disability picture presented by the Veteran's PTSD more accurately reflects a 70 percent disability rating, but no higher, for the entire period prior to March 21, 2012. Throughout the appellate period, the Veteran's symptoms included frequent nightmares, flashbacks, panic attacks, as well as ongoing sleep disturbance, a depressed mood, low energy, a flattened affect, a hyper-startle reaction, intrusive thoughts, anxiety, forgetfulness or difficulty concentrating, isolation, and irritability or anger. Additionally, a letter from E.P. of the Logan Vet Center dated March 2000 noted suicidal ideation. The Court has indicated that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The record also indicates obsessional behaviors. A May 2000 VA examination noted that the Veteran has needed to sleep with the light on since separation from service; the Veteran also reported having to sit in the back row in church to ensure no one is behind him. Furthermore, a June 2002 letter from D.L., of the Logan Outstation Vet Center, noted homicidal ideation. Even though she rated his clusters of individual symptoms in the moderate to severe category, his overall disability picture was "chronic and severe." She opined, in effect, that his disability was greater than the sum of its parts. D.L. noted that the Veteran had developed compulsive cleaning rituals, which prevented him from attending limited activities, such as church or small family dinners. If something is misplaced or unclean, he must attend to immediately without regard to consequences. She noted daily chronic irritability and four to five outbursts of anger per week. She also noted "severe" hypervigilance, to include nightly checks of his home perimeter. The Veteran reported difficulty concentrating, reading, focusing, and retaining information. D.L. also noted extreme efforts to avoid reminders of war, and diminished interest in participation in activities, to include family. He reported feeling detached and estranged from others. He reported daily intrusive thoughts 3 to 4 times per day and dreams 2 to 3 times per week. Flashbacks were noted to occur once to twice per month. Triggers were noted to cause intense psychological distress and physiological reactions. The record also indicates impaired impulse control and a near-inability to establish and maintain effective relationships. An August 2002 VA examination noted that the Veteran reported extreme irritability, being frequently "set off" by his wife's remarks, and spending most of his time around the house. He reported that typically he only left the house to go to the post office or the store, about twice or thrice per week. He avoids crowds and groups of people, to include family. He reported feeling more paranoid about people and trying to avoid them. His only social activity is "occasionally" attending church. He reported temper outbursts several times per week for no apparent reason and being verbally abusive. A December 2002 Vet Center treatment record indicates that the Veteran experienced 5 worrying episodes per day and 18 angry outbursts per week. A February 2003 VA treatment record notes that the Veteran has occasional road rage and is easily angered; the day prior he threw a pencil at his wife. An October 2003 VA treatment record notes that he feels paranoid, has no social activity other than eating out with his wife, sits in the back of church and restaurants, checks doors and windows, sleeps with the light on, and explodes at his wife several times per week. He frequently yells at other drivers, to include once getting out of his car. He also reported that he has considered hurting himself but is not the type to do so. A January 2004 VA treatment record notes that he no longer has crying spells. The January 2005 VA examination noted that he flies off the handle and throws things occasionally, to include as recently as the week prior. Environmental noises awaken him, and he checks and re-checks the home security system. He also reported short panic attacks. He is startled by gunfire and reported hitting the ground upon hearing jets pass by. He also reported no longer going to church and doing household shopping early in the morning to avoid others. A March 2006 Vet Center treatment record notes that the Veteran has had homicidal thoughts in that he has been "mad enough," but never acted on it. A May 2007 Vet Center treatment record notes "isolative depression" and recommended that the Veteran schedule home absences at least twice per week. Accordingly, the Board finds that a 70 percent rating is warranted prior to March 21, 2012. The Board finds that the overall record does not establish that, at any time prior to March 21, 2012, the Veteran's disability manifested by symptoms such 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; memory loss for names of close relatives, own former occupation, or own name. Considering all symptoms throughout the appeal period, both those specifically listed and those not, the Board finds the evidence shows that the occupational and social impairment was not total in nature. As summarized above, the Veteran retains some functionality as it relates to both his social and occupational ability. VA treatment records throughout the appellate period explicitly noted normal speech, a normal thought process, normal behavior, and the ability to perform activities of daily living. See VA treatment records dated February 2000 (normal behavior, speech, thought process and content), June 2002 (Veteran is alert and has sufficient energy to perform activities of daily living), March 2005 (Veteran is stable and rational), March 2006 (Veteran displays neat appearance, appropriate speech, oriented, relaxed motor activity and good judgment), May 2007 (Veteran is in control and rational); see also May 2000 VA examination (Veteran manifests normal psychomotor activity and mows grass, repairs house, and washes car), March 2002 VA examination (Veteran is well-groomed and displays normal speech and coherent and goal-directed thought process), May 2003 VA examination (Veteran is well-groomed, displays normal conversation and no cognitive slowing and has a coherent and rational thought process, is oriented and denies auditory or visual hallucinations); January 2005 VA examination (noting a logical thought process, no delusions, intact judgment, appropriate behavior, no problems with activities of daily living and ability to maintain personal hygiene, as well as noting that the Veteran has always attended to activities of daily living without assistance and now provides the majority of the household cleaning, cooking, laundry, shopping and lawn maintenance). In assessing the severity of the Veteran's PTSD, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137138 (1994). As such, the Veteran's lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating for the Veteran's PTSD at any point pertinent to this appeal. The Board notes that the Veteran has contended that several VA examinations do not adequately address the severity of his symptoms. However, neither the Veteran nor his representative have argued that the portion of the examinations cited above, namely, those sections regarding physical indicators and ability to perform the activities of daily living are inaccurate. Moreover, neither the Veteran nor his representative has presented or identified any contrary medical treatments or medical opinion evidence that supports the symptomatology contemplated by the 100 percent rating under DC 9411 when present. The Board has carefully considered the frequency, severity, and duration of the Veteran's reported symptoms as well as the level of impairment contemplated by the various levels delineated in the rating schedule and finds that the disability picture presented by the Veteran's PTSD results in a 70 percent disability rating, but no higher, effective December 6, 1999 to March 20, 2012. Accordingly, the Board concludes that the preponderance of the evidence indicates that the Veteran is entitled to a 70 percent disability rating for his PTSD from December 6, 1999 to March 20, 2012. Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an earlier effective date for a total disability rating based upon individual unemployability (TDIU), effective December 6, 1999 In March 2020, the Board granted entitlement to TDIU as of August 12, 2010. The Veteran contends that he has been unable to work since July 1992 due to his service-connected disability, PTSD. See November 2013 Application for Increased Compensation based on Unemployability. To establish entitlement to TDIU, there must be impairment so severe that it is impossible for the Veteran to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 (1993). 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 age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). A veteran is eligible for a schedular rating of TDIU if either one service-connected disability is rated at least 60 percent or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple disabilities incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The effective date for TDIU shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). In this case, the Veteran has one service-connected disability, PTSD, rated at 70 percent effective December 6, 1999 to March 20, 2012, and 100 percent, thereafter. On review of the evidence, the Board finds that the evidence is at least evenly balanced for and against finding that the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities prior to the currently-assigned date of August 12, 2010. Here, entitlement to a TDIU was raised as part and parcel of the Veteran's disagreement with the initial rating assigned for his PTSD, for which service connection has been established, effective December 6, 1999. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also June 2013 notice of disagreement (arguing that the Veteran is entitled to TDIU). The Veteran subsequently submitted an Application for Increased Compensation based on Unemployability in November 2013. Thus, the period for consideration on this appeal for a TDIU is from December 6, 1999, to August 12, 2010, the current date of the award. See 38 C.F.R. § 3.400. Eligibility for TDIU is supported by evidence showing that the Veteran has not worked since his retirement in July 1992, and that he has significant functional limitations due to his PTSD, as noted on the VA examination reports and treatment records, as set out above. He worked as a railroad clerk for more than three decades before his retirement. The position involved some interaction with others, as well as memory and concentration skills, all of which the evidence shows that he is unable to do because of his service-connected PTSD. Furthermore, the Veteran left his last period of service in 1954. His MOS was as part of the 116th engineer combat battalion and included tasks such as building roads and bunkers. See VA Form DD-214 and April 2001 rating decision. He also reported having three years of college education. See November 2013 Application for Increased Compensation based on Unemployability. Overall, the weight of the evidence supports a finding that the Veteran has been unable to obtain and maintain substantially gainful employment, and TDIU is warranted throughout the appellate period. Under the facts and procedural history of the appeal, the effective date of December 6, 1999, is assigned. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.