Citation Nr: 21029018 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-22 361 DATE: May 12, 2021 ORDER An increased 70 percent rating for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms owing to his PTSD causes what amounts to occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. His PTSD precludes him from obtaining and maintaining employment that could be considered substantially gainful employment versus just marginal. CONCLUSIONS OF LAWS 1. The criteria are met for a higher 70 percent disability rating for the PTSD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria also are met for a TDIU. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1966 to January 1968. The Board denied the claim for a rating higher than 30 percent for the PTSD in an October 2018 decision that the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In June 2020, pursuant to agreement in a Joint Motion for Partial Remand (JMPR), the Court vacated the portion of the Board's decision denying this claim and remanded it back to the Board for readjudication in compliance with directives specified, so this claim is again before the Board. The Veteran also since has raised the additional issue of his entitlement to a TDIU, and this claim is derivative, so part and parcel, of his claim already on appeal for an increased rating for his PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. An increased 70 percent rating for the PTSD is granted. Under the General Rating Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, cause the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). After again considering the evidence relevant to this claim, the Board concludes that the Veteran's symptoms owing to his PTSD more closely approximate those commensurate with a higher 70 percent disability rating, so the Board is increasing the rating for this disability to this greater level. Under the General Rating Formula, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. In this case, the Board finds that a higher 70 percent rating for the Veteran's PTSD is warranted, partly because the evidence shows that he consistently has reported having suicidal ideation. This is significant because, in Bankhead, the Veterans Court (CAVC) held that the mere presence of suicidal ideation, alone, may cause occupational and social impairment with deficiencies in most areas, so the Veteran need not have actual intent or plan to do it to warrant a 70 percent disability rating under 38 C.F.R. § 4.130. In June 2014, he responded yes when asked whether he had suicidal thoughts. He also more recently reported in October 2018 that he felt that he might be better off dead than to have to experience his PTSD symptoms. As well, he reported in a January 2021 statement that he did think of suicide but that he could not do that to his family. The Board also has considered that, throughout the record, it has been noted by his treating physicians that he tended to underreport his psychiatric symptoms. From this, the Board finds that the evidence supports concluding he suffers from suicidal thoughts or ideations. The evidence further demonstrates that the Veteran suffers from obsessional rituals that interfere with routine activities. He reported suffering from anxiety and that he checks the doors and windows of his house at least 10 times per day, as well as during the nighttime. When he is not at home, he must watch the door to make sure that he is secure in the room. These rituals have been found to interfere with his sleep and ability to function independently and appropriately. The evidence also reflects that the Veteran's PTSD leads to difficulty in adapting to stressful circumstances, including work or a worklike setting. He has reported working as a pipe fitter for his career, but that, towards the end of his career, he would often yell at those he was working with and that he could not adapt to learning the new technology needed to continue in that job. He also reported working as a consultant after he retired, but that these same symptoms also made it such that he could not continue in that role, either. He says that, for many years, he was able to repress his painful memories of Vietnam, but that he became less able to do so prior to his retirement and even after his retirement. The Veteran has been assessed to suffer from moderate to severe depression, demonstrating an impairment in his mood and thoughts. Given the totality of the Veteran's symptom presentation, the Board finds that a higher 70 percent is warranted because he consequently has what amounts to occupational and social impairment with deficiencies in most areas. However, an even higher 100 percent rating is not warranted since he does not have total occupational and social impairment. 2. A TDIU also is granted The first thing worth pointing out in adjudicating this derivative TDIU claim is that "total" unemployability is not required for this benefit. In other words, a Veteran need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In a rather recent precedent case, the Veterans Court (CAVC) defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (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. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. In February 2021, following review of the record and interview of the Veteran, a private psychologist opined that the Veteran's PTSD precludes him from obtaining and maintaining substantially gainful employment. This opinion was based primarily on the symptoms owing to the PTSD that have been discussed in assessing its severity in relation to the applicable rating criteria. These symptoms thus are supported by the record, and the Veteran has been shown to suffer from moderate to severe depression, a quickness to anger, and irritability, among a litany of other symptoms. The Veteran last worked in 2005 when, following his retirement as a pipe fitter, he worked as a consultant, but only temporarily. Concerning both of those jobs, his PTSD symptoms made it such that he could no longer work with others and could not learn the new technology needed to continue in his trained profession. In a January 2021 statement, he described feelings of anger, guilt, and depression related to his service experiences that he had difficulty suppressing, and he felt as though these symptoms prevented further employment in any meaningful capacity. The contemporaneous February 2021 psychological assessment is consistent with these reports. Although the VA examinations showed a much less significant occupational impact, the record also consistently demonstrates that the Veteran tends to underreport his symptoms so including to VA throughout the years. Hence, as it cannot be said he is still capable of employment that could be considered substantially gainful versus just marginal in comparison, his claim of entitlement to a TDIU is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.