Citation Nr: 21030235 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 19-33 175 DATE: May 18, 2021 ORDER A 100 percent rating from September 27, 2016 and continuing thereafter for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disorders effective September 27, 2016 is granted. FINDINGS OF FACT 1. With resolution of the doubt in his favor, for the entirety of the rating period on appeal, the severity of the Veteran's PTSD manifested as total occupational and social impairment due to gross impairment in thought process and communication, persistent danger of hurting self, intermittent inability to perform activities of daily living, and disorientation to time and place. 2. With resolution of the doubt in his favor, from September 27, 2016 and continuing thereafter, the Veteran's service-connected disorders precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish a 100 percent rating for the entirety of the rating period on appeal for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria to establish a TDIU for the entirety of the rating period on appeal have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from October 1967 to October 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Baltimore, Maryland Regional Office (RO). In September 2020, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. The Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) from October 3, 2017. Increased Rating Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. PTSD PTSD is evaluated under the General Rating Formula for Mental Disorders. 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; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted when 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); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if 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; 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. Id. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "a Veteran 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." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, if the evidence shows that a Veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Veteran's PTSD is rated 30 percent disabling from April 19, 2012 to September 26, 2016 and 50 percent disabling from September 27, 2016 and continuing thereafter. The appellate period is from September 27, 2016. In the Veteran's November 2016 VA examination, the Veteran reported having been divorced since 1986 due to drug abuse and emotional withdrawal. The Veteran reported having a good relationship with his children and having a close group of friends. The Veteran lived with his sister. The Veteran reported experiencing sleep disturbances and irritability. The Veteran denied experiencing suicidal and homicidal ideation. The Veteran's symptoms were anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory; and disturbances of motivation and mood. The Veteran was observed as well-groomed. His speech, thoughts, and judgment were normal. The Veteran displayed an anxious mood but there was no lethality, psychosis, or clouded sensorium. The examiner summarized the Veteran's total impairment as 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. VA treatment records pertaining to the appellate period reflect the Veteran having undergone treatment for his PTSD. In a November 2018 VA treatment record, the Veteran denied experiencing suicidal and homicidal ideation. In an April 2019 VA treatment record, the Veteran reported experiencing suicidal ideation. The presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas and must be considered with other evidence. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In May 2020, the Veteran underwent an examination with a non-VA psychologist. The Veteran reported experiencing a long-standing history of drug abuse. The Veteran indicated feeling "no purpose anymore" and that he socially isolated due to passive suicidal thoughts, fatigue, and trouble with crowds. The Veteran avoided watching the news because it caused anger, intrusive thoughts, and anxiety. The Veteran reported a prior suicide attempt. The Veteran's symptoms were depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, include work or a work-like setting; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control; grossly inappropriate behavior; and persistent danger of hurting self or others. The examiner summarized the Veteran's total impairment as total occupational and social impairment. In his September 2020 Board hearing, the Veteran testified to having "no life at all" and that he spent his days in bed and barely eating. The Veteran indicated that his marriage was not good and that he had no friends. The Veteran testified to experiencing suicidal ideation and having undergone prior suicide attempts. The Board will grant a 100 percent rating for the entirety of the rating period on appeal for the Veteran's PTSD based on the benefit-of-the-doubt doctrine. Although the November 2016 VA examiner summarized the Veteran's impairment as less than total occupational and social impairment, VA treatment records, the non-VA examination, and the Veteran's Board hearing testimony reflect otherwise. The undersigned observed the Veteran during the hearing and his testimony and demeanor are consistent with the assignment of a 100 percent rating. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an increased rating is warranted and the claim is granted. TDIU The May 2020 non-VA psychologist indicated that the Veteran was unemployable due to his PTSD. The issue of entitlement to a TDIU has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran's service-connected disorders include lung cancer rated 100 percent disabling from October 3, 2017 and continuing thereafter; PTSD rated 30 percent disabling from April 19, 2012 to September 26, 2016 and 100 percent disabling from September 27, 2016 and continuing thereafter; tinnitus rated 10 percent disabling from April 19, 2012 and continuing thereafter; and anterior trunk scars rated noncompensable from October 3, 2017 and continuing thereafter. The Veteran has met the schedular criteria under 4.16(a) effective September 27, 2016. The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. Thus, the central question is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The November 2016 VA examiner indicated that the Veteran's PTSD symptoms negatively impacted his work performance but the symptoms did not preclude the Veteran's ability to work in any capacity. The May 2020 non-VA psychologist indicated that the severity of the Veteran's PTSD rendered him unemployable. In his September 2020 Board hearing, the Veteran testified to having "barely worked" due to the severity of his PTSD. The Veteran's hearing testimony and demeanor are consistent with this finding. The Board will grant a TDIU effective September 27, 2016 based on the benefit-of-the-doubt doctrine. Although the November 2016 VA examiner indicated that the Veteran's PTSD did not preclude his ability to work in any capacity, the May 2020 non-VA psychologist and September 2020 Board hearing testimony indicated otherwise. Significantly, the Veteran is rated 100 percent disabling since September 27, 2016. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a TDIU is warranted and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, 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.