Citation Nr: 21029260 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-37 257 DATE: May 13, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and major depression is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to regulations governing payment of monetary benefits. FINDINGS OF FACT 1. Throughout the period on appeal, the severity, frequency, and duration of the Veteran's PTSD and major depression symptoms did not more closely approximate total occupational and social impairment. 2. The Veteran meets the schedular criteria for TDIU and his service-connected disability prevents him from engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD and major depression have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411. 2. The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.40, 3.41, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1991 to May 1994. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal was most recently before the Board in January 2021 when it was remanded for further development. The Board finds there has been substantial compliance with the remand directives and the Board will proceed to adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating in excess of 70 percent for PTSD and major depression The Veteran seeks a higher rating for his service-connected PTSD and major depression, which is rated as 100 percent disabling from December 28, 2010 and 70 percent disabling from March 1, 2011, under 38 C.F.R. § 4.130, Code 9411. Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General 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, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent after March 1, 2011. The Board concludes that the Veteran's symptoms do not cause the level of impairment required for a disability rating of 100 percent after March 1, 2011. 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 when 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 to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. On February 2012 VA examination, PTSD and major depression were diagnosed under the DSM-IV criteria. The examiner noted it was not possible to differentiate the symptoms attributable to his PTSD and his depression. A concussion was also diagnosed and the examiner opined not it was not possible to separate the symptoms of his concussion from his psychiatric disorders. The examiner identified symptoms of difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; anxiety; suspiciousness; mild memory loss, such as forgetting names, directors or recent events; impairment of short and longterm memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and suicidal ideation. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. On April 2013 VA examination, PTSD, depression and a cognitive disorder secondary to a TBI were diagnosed. The examiner noted that the Veteran suffered a severe TBI due to a motor vehicle accident in 1995 and he continued to have residual problems with memory, learning, and impulsivity. The examiner noted that such cognitive deficits were beyond what was expected from his PTSD and depression and had been repeatedly linked to his TBI. The examiner noted it was possible to differentiate what portion of each symptom was attributable to each diagnosis. The symptoms attributable to his PTSD included intrusive thoughts and memories, irritability, initial and middle insomnia, hypervigilance, exaggerated startle response, and emotional numbing. The symptoms attributable to depressive disorder included dysphoric mood, feeling helpless, hopeless and worthless; low motivation and productivity; decreased appetite; and occasional thoughts of death. The symptoms attributable to his cognitive disorder included problems with learning, memory, and impulsivity. The examiner opined that the Veteran's symptoms with regards to all mental diagnoses resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The examiner further opined that with regards to the level of occupational and social impairment his TBI was his primary impairment with PTSD and depressive disorder secondary. The examiner also noted the Veteran was competent to manage his own financial affairs. On June 2016 VA examination, PTSD and neurocognitive disorder due to a TBI were diagnosed. The examiner noted he no longer met the criteria for a diagnosis of major depression. The examiner noted it was possible to differentiate what portion of each symptom was attributable to each diagnosis. The symptoms attributable to his PTSD included intrusive memories, sleep disturbance, irritability, nightmares, and detachment from others. The symptoms attributable to his neurocognitive disorder included memory and processing speed problems, impulsivity, and poor judgment. The examiner opined that the Veteran's symptoms with regards to all mental diagnoses resulted in total occupational social impairment. The examiner further opined that with regards to the level of occupational and social impairment his TBI was his primary impairment with PTSD secondary. The examiner opined that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social occupational, or other important areas of functioning. On behavioral observations the examiner noted that the Veteran appeared casually dressed and groomed, and looked younger than his stated age. Speech was goal directed and mostly logical, though his contention that his PTSD caused him to be in a motor vehicle accident was not logical. Affect was mildly flat. Eye contact was appropriate. He was oriented to person, place, time, and situation. He denied having depression, suicidal intent or plan. He had no history of mania or psychosis. He was cooperative and pleasant. His history indicated he had impairment in judgment, memory, and concentration problems, but he appeared to track the conversation with the examiner fine. He was aware of how much money he had coming in and he paid his own bills. His housing problems were related mostly to his history of multiple felony convictions and inability to pass background checks. He noted he had few friends. The examiner also specifically noted that his occupational impairment is primarily caused by his poor memory which was a residual of his TBI and PTSD contributed minimally to his occupational impairment. At the December 2020 hearing, the Veteran testified that he was being treated at a VA facility and he was on medication to help him sleep. He testified that he was experiencing nightmares from the combat he was in during service. He also testified that he was hypervigilant when he went out and always made sure he could sit and see everybody in case something happens. In a February 2021 statement, the Veteran's mother reported that since his active duty service his personality changed. She reported that he told her he felt uneasy and vulnerable like someone is behind him and dangerous. She reported that he had a hair trigger temper. She also reported that it appeared to her that he was getting in fights. The Board remanded the claim in January 2021 to obtain a current examination that would also determine whether symptoms related to a nonservice-connected TBI could be differentiated from symptoms related to PTSD. On March 2021 VA examination PTSD and neurocognitive disorder were diagnosed. The examiner noted it was not possible to attribute symptoms to each diagnosis as both PTSD and neurocognitive disorder had overlapping symptoms to include irritable reactions to benign social interactions, anxiety, and sleep impairment. However, the examiner said it was possible to differentiate what symptoms are attributable to his TBI. The examiner noted his TBI caused memory problems, impulsivity, and poor judgement. The examiner opined that the Veteran's symptoms with regards to all mental diagnoses resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The examiner specifically concluded that it was not possible to differentiate the extent of occupational and social impairment related to PTSD versus TBI. On behavioral observations the examiner noted that the Veteran appeared via video telehealth and appeared appropriately dressed and groomed, was talkative and cooperative. His speech was normal, he had a calm psychomotor movement, full affect, anxious mood, scattered thought process, normal content, memory appeared appropriate for age but was not formally tested, fair insight and judgement, and he denied any suicidal or homicidal ideation. The examiner also noted the Veteran was competent to manage his own financial affairs. Based on a review of the record, the Board concludes that a higher 100 percent rating for the Veteran's PTSD and major depression is not warranted because the effect of the symptoms of his PTSD and major depression do not more closely approximate the disability picture contemplated by a 100 percent rating. 38 C.F.R. § 4.130, Code 9411. The evidence does not reflect that the Veteran's psychiatric symptoms resulted in total occupational and social impairment. The evidence does not show that he exhibited gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); memory loss for names of close relatives, own occupation or own name due to his PTSD or major depressive disorder. The Veteran's memory and thought processes were impaired throughout the period on appeal, and while the February 2012 VA examiner noted that they could not differentiate the symptoms between his concussion and psychiatric disorders, the April 2013, June 2016, and March 2021 VA examiners each found that the symptoms of his psychiatric disorders could be differentiated with the symptoms of his neurocognitive disorder and specifically attributed his memory and thought process impairment to the nonservice-connected neurocognitive disorder that resulted from his TBI. Additionally, while the June 2016 VA examiner opined that his symptoms resulted in total occupational and social impairment, the examiner specifically noted that he was also considering the effects of his nonservice-connected neurocognitive disorder, and specifically noted that his occupational impairment is primarily caused by his poor memory which was a residual of his TBI and PTSD contributed minimally to his occupational impairment. The competent evidence of record does not show the Veteran is precluded from functioning both mentally and behaviorally on a daily basis, such that the symptoms cause total occupational and social impairment. Gross impairment of cognitive functions is not shown. The Board notes that the Veteran expressed suicidal ideation on February 2012 VA examination and occasional thoughts of death on April 2013 VA examination, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the June 2016, and March 2021 VA examinations. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's PTSD and major depression symptoms resulted in the level of impairment required for a 100 percent rating under Code 9411. The criteria for an initial 100 percent or higher rating are not met and the appeal must be denied. Entitlement to TDIU The Board finds that entitlement to TDIU is warranted. 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 an evaluation 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 (a). 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. The Veteran is only service-connected disabilities for PTSD and major depression, which is rated as 70 percent disabling for the entire period on appeal. Accordingly, the schedular criteria for a TDIU rating are met for the entire appeal period. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 4.16 (b), 4.19. On February 2012 VA examination, the Veteran reported that since service he had worked at least 20 jobs and was usually laid off because he could not remember regular tasks and was given Social Security Disability in either 2007 or 2008. His symptoms of PTSD, depression and concussion included irritability or outbursts of anger; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; anxiety; suspiciousness; mild memory loss, such as forgetting names, directors or recent events; impairment of short and longterm memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. In his July 2012 application for TDIU, the Veteran reported that his PTSD and residuals of TBI had prevented him from securing or following any substantially gainful occupation. He reported he had last worked full-time in in 2001 when he had worked in a call center. He reported he had attended 2 years of college. On an August 2013 application, the Veteran said he had last worked full-time in in 2004 when he worked in phone marketing for 30 hours a week, and lost 10 hours a week due to illness. On April 2013 VA examination, the Veteran reported he had not worked for an income since 2007 and he supports himself with his Social Security Disability, which was related to his TBI, and his VA benefits. He reported his barriers to work included that when he gets a job he gets laid off within one month due to memory problems or difficulties getting along with co-workers. The examiner noted that his medical records indicated that his cognitive deficits significantly impacts his ability to work as he learns more slowly than others and he can also act impulsively. The symptoms attributable to his PTSD included intrusive thoughts and memories, irritability, hypervigilance, exaggerated startle response, and emotional numbing. The symptoms attributable to his depressive disorder included dysphoric mood, feeling helpless, hopeless and worthless, and low motivation and productivity. The examiner opined that the Veteran's symptoms with regards to all mental diagnoses resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The examiner further opined that with regards to the level of occupational and social impairment his TBI was his primary impairment with PTSD and depressive disorder secondary. On June 2016 VA examination, the Veteran reported he had not worked since 2004 and described decades long attempts to work always ended because he could not remember required procedures or instructions so he gave up looking for work. The symptoms attributable to his PTSD included intrusive memories, sleep disturbance, irritability, nightmares, and detachment from others. The examiner opined that the Veteran's symptoms with regards to all mental diagnoses resulted in total and occupational social impairment. The examiner further opined that with regards to the level of occupational and social impairment his TBI was his primary impairment with PTSD secondary. The examiner opined that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social occupational, or other important areas of functioning. At the December 2020 hearing, the Veteran testified that he had memory problems and could not remember exactly when he worked last. He testified he thought it was around 2000 when he drove a cab. He testified that every time he would get a job he would be fired within a week or a month due to his memory. On March 2021 VA examination, the Veteran reported he had not worked in decades and that he had trouble remembering tasks required for jobs. The examiner concluded that it was possible to differentiate between some symptoms related to the PTSD and the nonservice-connected TBI; however, the effect of both diagnoses on the social and occupational impairment could not be differentiated. The examiner opined that the Veteran's symptoms with regards to all mental diagnoses resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood, and that both disorders contributed to the impairment and could not be separated. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board finds that the Veteran's service-connected PTSD and major depression has precluded him from being able to maintain substantially gainful employment. The Board recognizes that the April 2013, June 2016, and March 2021 VA examiners identified that the Veteran's difficulties in maintaining employment were a result primarily of the memory problems associated with his nonservice-connected residuals of TBI, however these examiners also identified that his service-connected PTSD and major depression at least contributed to his occupational impairment. Further, his reported work history including working at a call center which involved activities working with other people. The record reflects that his PTSD symptoms include hypervigilance, exaggerated startle response, and irritable reactions to benign social interactions which would impact his ability to interact with other people on the job. Accordingly, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran has been precluded from securing and following gainful employment due to his service-connected PTSD and major depression, and TDIU is warranted. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.