Citation Nr: 21029209 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-39 940 DATE: May 12, 2021 ORDER A rating in excess of 70 percent prior to January 1, 2010 for posttraumatic stress disorder (PTSD) is denied. A rating of 100 percent as of January 1, 2010 for PTSD is granted. An effective date prior to January 1, 2010 for a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACTS 1. For the period prior to January 1, 2010, the Veteran's service-connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas such as family relations, and mood, due to such symptoms as depression, anxiety, panic attacks, sleep impairment, and difficulty in adapting to stressful circumstances including work or work like settings as well as an inability to establish and maintain effective relationships without total occupational impairment was not shown. 2. As of January 1, 2010, the Veteran's service connected PTSD has resulted in total social and occupational impairment. 3. The evidence of record does not tend to show that the Veteran was unable to obtain or maintain substantially gainful employment consistent as a result of his service connected disabilities prior to January 1, 2010. CONCLUSIONS OF LAW 1. Prior to January 1, 2010, the criteria for a rating in excess of 70 percent are not met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. As of January 1, 2010, the criteria for an increased rating of 100 percent for PTSD are met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 3. The criteria for an award of TDIU prior to January 1, 2010 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from May 2001 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded this matter for additional development. 1. Entitlement to a rating in excess of 70 percent prior to November 8, 2016 for PTSD The Veteran contends that a rating in excess of 70 percent prior to November 8, 2016 for PTSD. As of November 8, 2016, the RO has assigned a 100 percent rating for PTSD which is the maximum rating available. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. PTSD is rated under Code 9411 and the General Rating Formula for Mental Disorders, which provide, in pertinent part, the following criteria: A 70 percent rating 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 circumstances (including work or a work-like setting); and/or 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "a [V]eteran 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 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, 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. The Veteran separated from active service in October 2008. In September 2012, the Veteran submitted an Application for Increased Compensation Based on Unemployability. The Veteran reported that he became too disabled to work on December 31, 2009. Prior, he reported that he had been working as a warehouse manager and in the security background check field making 49,0000 dollars in salary. A December 2009 VA mental health outpatient note shows that the Veteran was seeking assistance due to help getting off pain medication and his spouse's worries of him being suicidal. The Veteran reported taking pain and sleep medication and then waking up surrounded by police after only 2 of his 30 pill prescription were remaining. A follow up appointment a few days later noted the Veteran was diagnosed with depression, anxiety, and PTSD. The Veteran was noted to be depressed, lethargic, had clear logical thought process, and denied suicidal or homicidal ideations, or perceptual disturbances. A January 2011 VA PTSD examination report noted that the Veteran had been hospitalized three times in 2010 due to overdoses of Ambien, depression, and suicidal thoughts. The Veteran was noted to be prescribed medication and undergoing group therapy for treatment. Panic attacks were noted to be occurring 3 to 4 times per day. The Veteran was noted have been married for 10 years in a stable marriage and had one 5 year old son, and was doing well, as his spouse was very supportive. Social relationships were noted as to be mostly by himself and had friends in New York but had rare contact and preferred to be alone. A history of suicide attempts were noted, as he had been threatening himself with a knife. The examiner noted that Veteran was mostly socially isolative. The examiner noted that the Veteran had psychomotor activity that was tense; affect was constricted and mood was anxious. Sleep impairments were assessed. Panic attacks were noted at a frequency of three during each day and once per night. Homicidal and suicidal thoughts were not reported. Impulse control was fair. He was able to maintain personal hygiene. Moderate problems with going out shopping was reported. Other problems were noted as he preferred not to drive and had his wife do the driving and shopping. He reported that he did not like being in public settings. Recent memory was mildly impaired. The Veteran was noted to not be currently employed and was last employed as a biometric enrollment officer. The Veteran last worked 1 to 2 years prior and unemployment was caused by frequent panic attacks. The examiner remarked that the Veteran had significant psychiatric difficulties and had hospitalizations related to mood and substance abuse. His wife was noted as being very supportive and helped him a great deal at home and with treatment. The examiner noted that the Veteran appeared quite isolative and did not like appearing in the public eye. The examiner assessed the Veteran's PTSD as causing symptom resulting in deficiencies in the following areas of judgment, thinking, family relations, work, and mood. An October 2012 letter from the Veteran's spouse noted that the Veteran had been unable to work for the last three years. She reported that the Veteran's had been involuntary committed 7 to 10 times over the past three years. She reported that the was committed due to his mental state which included threats to himself and talking of suicidal thoughts. She reported constant stress of anxiety/panic attacks, flashbacks, and nightmares. She also reported that he experienced 2 to 3 panic attacks per day, and was unable to attend college or obtain employment due to these symptoms. She then reported that he would hear voices but was not reporting this symptom to his doctors due to concern of being permanently committed to a mental health institution. She reported that he had told her that these voices told him to hurt himself. The Veteran's spouse also reported that his mood and irritability lead to him pulling away from family and social activities. These symptoms were reported to prevent him from participating in activities with his spouse, such as going out shopping, going to movies, going out to dinner, or doing family activities. She reported that the Veteran used to want to go out and do things, and was extremely social but now sits at home all day due to fear of panic attacks and flashbacks. A January 2013 VA treatment record shows the Veteran was assessed with a depressed mood and voiced a suicidal ideation with intent and a reported plan. The Veteran was noted to be a moderately high risk of suicide given his history. A November 2013 VA PTSD examination report shows that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran was noted be still be married to his spouse for the last 11 years and has one young son. The Veteran reported that he mainly stayed inside is home and watched TV. He reported that his spouse was is care giver, but that she was fully employed. He also reported that he does not like to drive but was able to drive to his VA examination appointment. The examiner noted that the Veteran was last hospitalized for his psychiatric condition in January 2013. The VA examiner assessed symptoms of depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, and including work or worklike setting. The examiner noted that the Veteran did not have functional impairment or disability attributable to PTSD that impeded the performance of gainful employment in either the physical or sedentary sectors. A November 2014 statement submitted by the Veteran's spouse reported that his PTSD limits his daily activities. She reported the Veteran experienced daily panic attacks that left him physically and emotionally exhausted. She reported that the Veteran would not leave the home by himself, and would black out from flashbacks. She also reported he experienced sleeping difficulties due to waking up from nightmares. The Veteran's spouse also noted that when the Veteran was home alone, he would be very fearful and worried that someone else would come into the house. A March 2015 VA treatment record shows that the Veteran was assessed with persistent and pervasive PTSD symptoms including flashbacks, scanning environment, anxiety/panic, inability to be in crowds, difficulty leaving home unless accompanied by his wife. Other symptoms were noted as frequent flashbacks, nightmares, sleep disturbances, memory lapses, intrusive thoughts, and fears going out alone. The Veteran reported being stable as of now, but was anxious recently and threw out medication he did not want to rely on but was now back on medication compliance. A February 2016 VA treatment record shows that symptoms were assessed as nightmares, intrusive thoughts, paranoid, anxious, depressed, avoidant going out, socially isolated, sleep disturbances, hypervigilant, emotional numbing. Suicidal thoughts recently when he went off Suboxone. The Veteran's last in-patient stay was noted in November for one week due to a suicidal ideation. Upon review of the record, the Board finds that the severity of the symptoms and disability picture of the Veteran's PTSD warrants a 100 percent rating as of January 1, 2010. In this regard, the Board Veteran's symptoms more nearly approximate symptoms of such a severity, frequency, and duration to result in total occupational and social impairment. The record reflects that the Veteran experienced social isolation, 3 or more panic attacks per day, and suicidal ideations requiring psychiatric hospitalization, and an inability to retain employment during this period. The Board assigns probative weight to the symptoms noted in the VA examination reports and importantly to the Veteran's spouse's submitted statements describing the Veteran severe symptoms resulting in occupational and social impairment. Moreover, the Board acknowledges the VA opinions of record which did not find that the Veteran experienced total occupational and social impairment. However, the appropriate rating must be assigned based on all the evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. Accordingly, the evidence supports an increased ratting of 100 percent as of January 1, 2010. For the period on appeal from October 13, 2008 to January 1, 2010, the Board finds that a rating in excess of 70 percent is not warranted. A review of the evidence of record shows that the Veteran separated from active service on October 12, 2008. He reported that from October 20, 2008 to December 30, 2009, he worked as a warehouse manager and conducting security background checks. The Veteran reported that he made a salary of 49,000 dollars per year during that period of time. He reported losing 45 days to illness. This lost work time is compensated via his VA compensation benefits for PTSD which is evaluated as 70 percent disabling from the day after his discharge from active service. See 38 C.F.R. § 4.1 (2020) ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."). As of January 1, 2020, the Veteran is now assessed as having total occupational impairment due to his service-connected PTSD. As the Veteran's was able to work 40 hours per week with salary above marginal employment from October 13, 2008 to January 1, 2010, the preponderance of the competent and probative evidence does not reflect total occupational impairment, which is one of the two key components for a 100 percent schedular rating for PTSD. See Total, Merriam-Webster, https://www.merriam-webster.com/dictionary/total (defining the adjective "total" as, among other entries, absolute). Therefore, a rating in excess of 70 percent is not warranted prior to January 1, 2010. 2. Entitlement to an effective date prior to January 1, 2010 for a TDIU Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Board notes that the Veteran had been awarded TDIU based on service connected disabilities effective January 1, 2010. However, as noted above, from January 1, 2010, the Veteran is now in receipt of a 100 schedular rating for service connected PTSD. The grant of a 100 percent schedular disability rating moots the issue of any entitlement to TDIU after the effective date of that rating. Locklear v. Shinseki, 24 Vet. App. 311, 314 n.2 (2011) (finding entitlement to TDIU mooted from the effective date of a 100% schedular disability rating); accord Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Additionally, special monthly compensation is not raised as the Veteran does not have separate service-connected disabilities combining to 60 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Prior to January 1, 2010, the Veteran service-connected PTSD is rating as 70 percent, and his is also service-connected for synovitis of the right and left thumbs which are both noncompensable. From September 9, 2009, he is also service-connected for residuals, fracture, of the right ring and little fingers, rated as noncompensable. His combined rating is 70 percent from October 13, 2008, so he meets the schedular criteria of 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Regarding education, the Veteran reported 1 year of college. He did not indicate any other types of training or certificates. Additionally, the January 2011 VA examination report, the closest in proximity to the time period in question, reflects that the Veteran had decreased to poor concentration with normal remote and immediate memory, but mildly impaired recent memory. A December 2009 VA treatment report indicated that the Veteran had a clear, logical thought process upon mental status examination. Regarding whether a TDIU is warranted prior to January 1, 2010, the economic component shows that the Veteran was working from shortly after his separation from service in October 2008 until December 2009. The Veteran's work history showed he was employed as a warehouse manager and performing security background checks, making at most a salary of 49,000 dollars per year. While the Board does not wish to minimize the nature and extent of the Veteran's overall disability level, the evidence of record does not tend to support a finding that his service-connected disabilities alone are sufficient to produce unemployability. Concerning the non-economic component, his service-connected PTSD undoubtedly produces some significant impairment, to include poor concentration and some impaired memory, the evidence does not reflect that substantially gainful employment is precluded solely due to impairment from his service-connected disabilities. This impairment from his service-connected connected disabilities has been compensated via his 70 percent combined evaluation from the day after discharge from active duty. 38 C.F.R. § 4.1. Entitlement to a TDIU prior to January 1, 2010, is denied as the preponderance of the evidence weight against the claim. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.