Citation Nr: 21030741 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-07 561 DATE: May 19, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms during the appellate period do not more closely approximate total occupational and social impairment. 2. The Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities for the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for PTSD 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 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1960 to April 1964. This matter was previously before the Board in May 2019. At that time, the Board denied the Veteran's claim for a rating in excess of 70 percent for his service-connected PTSD. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court), which vacated the Board's May 2019 denial of the Veteran's PTSD claim and remanded the appeal for further consideration in a July 2020 memorandum decision. In the Court's memorandum decision, the Court determined that the Board erred by not addressing or considering whether the Veteran had reasonably raised the issue of TDIU in conjunction with his claim for an increased rating for his PTSD. The Court noted the separate employability considerations contained in a claim for a TDIU, and found that the Board's decision regarding the Veteran's increased rating claim for his service-connected PTSD should be vacated in light of these separate considerations. The Court has instructed the Board to consider in the first instance whether the evidence of record reasonably raised a claim for a TDIU, and in so considering, readjudicate the Veteran's claim for an increased rating for his PTSD. The Board will adjudicate the Veteran's claim below according to the Court's decision. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran seeks a rating in excess of the initially assigned 70 percent for his service-connected PTSD. The Veteran's rating for his service-connected PTSD was increased from 50 percent to 70 percent in a June 2019 rating decision that implemented a May 2019 Board decision, effective October 14, 2017. The Veteran's PTSD is rated under Diagnostic Code 9411. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, otherwise the lower rating will apply, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is rated at 70 percent disabling for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders (General Rating Formula), 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). Id. In a September 2017 private psychological evaluation, general anxiety disorder, depressive disorder, a trauma and stress related disorder, and alcohol use disorder were diagnosed. The Veteran denied having any mental health treatment. He reported he was married and had "maybe two children, somewhere," but was uncertain whether the children were his. The Veteran reported a history of heavy alcohol use, and that he had two scotches the night before his examination, and sometimes he has four. The examiner noted drug use was not apparent. The examiner found that he had intense or prolonged psychological distress at exposures to internal or external cues that symbolize or resemble an aspect of his stressor event. The Veteran reported that he experienced substantial difficulties with intrusive thoughts related to his stressor and conversations with those he served with triggered recollections. He had persistent and exaggerated negative beliefs or expectations about others and the world. The examiner noted he had feelings of detachment and estrangement from others. The examiner also noted that the Veteran appeared to live in a persistently negative emotional state characterized by anger. The examiner found his PTSD manifested in symptoms of anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; impaired judgment; gross impairment in thought process or communication; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; spatial disorientation; persistent delusions or hallucinations; and disorientation to time and place. The examiner noted the Veteran had severe troubles with irritability and angry verbal outbursts. He described a history of involvement in reckless behavior. He reported hypervigilance in that he preferred to sit with his back to the wall in public settings, he has to see out the front door, he continued to sleep with a gun, and he tended to carry a small knife with him. He denied any suicidal or homicidal ideation but noted recurrent thoughts of death. The Veteran reported he experienced an angry mood nearly every day, and a diminished emotional closeness with others was described. He described a pattern of excessive anxiety and worry, largely in the form of apprehensive expectations occurring more days than not for at least six months, and difficulty controlling the worry. On mental status examination, the Veteran was initially difficult to engage in the evaluation, but later warmed to the process. His impulse control was below normal limits. Speech was normal in manner and content. Thought process was remarkable for circumstantiality. He reported seeing a man for two days in a row whom he was certain was not present. He was oriented to month, year, day of the week, and place, but was not oriented to the current date or city. While he was able to produce the contour and numbers of a clock, he was unable to set the hands to a specified time. The examiner found the Veteran was capable of maintaining his finances, but that he tends to request some help from his wife. 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, judgment, thinking and/or mood. In a September 2017 private examination by a different provider two weeks later, the examiner noted his symptoms included, but were not limited to, insomnia, sleep deprivation, anxiety, isolation, memory loss, hypervigilance, depression, isolation, and agoraphobia. The provider noted no violent ideations. On a May 2018 VA Disability Benefits Questionnaire (DBQ), PTSD and moderate alcohol use disorder were diagnosed. The examiner found that the diagnoses were independent of each other, and consist of symptoms that are similar and overlap significantly. She noted that because the resulting impairment significantly overlapped she could not determine their individual impact without resorting to mere speculation. The Veteran was married for 21 years, had no children, and he maintained contact with two buddies from service who live in different states. He reported that he avoids social situations because they make him uncomfortable. He reported that he has been drinking on a daily basis since service, on average of 3 drinks per night, and denied any other substance use. He reported significant sleep issues and insomnia and he was currently on medication for sleep. He also reported dysphoria, anxiety, agoraphobia, and hypervigilance, but he did not receive any treatment for these symptoms. His symptoms included recurrent, involuntary intrusive memories; recurrent distressing dreams; avoidance or efforts to avoid external remedies; persistent and exaggerated beliefs or expectations about oneself, others, or the world; persistent negative emotional state; marked diminished interest or participation in significant activities; feelings of detachment or participation in significant activities; reckless or self-destructive behaviors, hypervigilance; exaggerated startle response, problems with concentration; depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; disturbances of motivation or mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner did not indicate that the Veteran had persistent delusions or hallucinations. On behavioral observations, the examiner noted that the Veteran arrived early for his appointment, accompanied by his wife. He appeared casually and neatly dressed. His mood was dysphoric, and he appeared anxious. He seemed cooperative and eager to tell his story. The examiner noted that at times his speech was tangential, and it was difficult for him to refocus to respond to specific questions. He denied any suicidal or homicidal ideation. The examiner found there was no evidence of psychotic process noted. The examiner opined that the Veteran's PTSD resulted in 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. Based on a review of the record, the Board finds that the effect of the symptoms related to the Veteran's PTSD does 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 demonstrate total occupational and social impairment. While the Veteran's symptoms reflected some impairment in thought process, judgement, and communication, the evidence does not show that such symptoms resulted in a 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); memory loss for names of close relatives, own occupation or own name. While his thought process and content, communication skills, and memory were found to be impaired throughout the period on appeal, the record reflects that they were not grossly impaired. Even though the first September 2017 private examiner opined that his thought process and communication were grossly impaired, the examiner only noted that the Veteran was initially difficult to engage, but later warmed to the examination, and found that his speech was normal in manner and content. Additionally, the May 2018 VA examiner also found that the Veteran's speech was tangential at times and it was difficult for him to refocus to respond to specific questions, but the examiner found he was eager to tell his story and did not find that this was a gross impairment. The first September 2017 private examiner found that the Veteran could not recall the date or place of the examination, but could recall the month, year, and day of the week, and no such impairment was noted by the second September 2017 private examiner or on May 2018 VA examination. He was oriented on May 2018 VA examination. While the Veteran had memory loss, such memory loss was only mild and did not include a loss of the names of close relatives, own occupation, or his own name. At no point during the period on appeal was the Veteran shown to be unable to maintain his own personal hygiene. On May 2018 VA examination he appeared appropriately dressed. While the Veteran reported a hallucination in the September 2017 private examination, such hallucinations were not persistent as the Veteran reported that he only saw the man for two days, and he did not report any hallucinations in the second September 2017 private examination which was two weeks later, or on May 2018 VA examination. In addition, while the Veteran reported hypervigilance, anger, persistent thoughts of death, and a history of reckless behavior at no point was he found to be a danger to himself or others. Additionally, he was also found to be capable of handling his own finances by both the first September 2017 private examiner and the May 2018 VA examiner. Finally, while the Veteran had difficulty relating to others and avoided social situations because they made him uncomfortable, he was not totally socially impaired. He maintained a relationship with his wife of 21 years and also maintained contact with two friends who lived in different states. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating under Code 9411. The criteria for an initial 100 percent rating are not met and the appeal must be denied. TDIU A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total 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). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). 2. Entitlement to a TDIU Throughout the period on appeal, the Veteran has asserted that his PTSD interferes with his employability. See e.g., October 2017 Disability Benefits Questionnaire. The Veteran has reported that his symptoms of PTSD undoubtedly have a severe negative impact on his ability to secure and follow substantially gainful employment. See Appellant's Brief at 12. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a TDIU is an element of all appeals of an initial rating; thus, the Veteran's assertions throughout the record raise a claim for a TDIU as part of his claim for a higher initial rating for PTSD. As the Veteran's TDIU claim is part and parcel of his increased rating claim for PTSD, the Board will consider the Veteran's service-connected disabilities from October 14, 2017. The Veteran's service-connected disabilities from this date include PTSD (70 percent from October 14, 2017), tinnitus (10 percent from October 14, 2017), and bilateral hearing loss (0 percent from October 14, 2017). The schedular requirements for TDIU are met for the entire appeal period. As such, for the period of October 14, 2016 through the present, the Board will consider whether the Veteran was unemployable due to the combined functional impact of his bilateral hearing loss, tinnitus, and PTSD. In this regard, the Board has considered the Veteran's educational and employment background. The Veteran's highest level of reported education is a high school degree. See October 2017 Disability Benefits Questionnaire. Following high school, the Veteran reported working at the Irving Trust Company as a page, and later with punch cards. After his time in the Air Force, the Veteran resumed employment at Irving Trust Company as a teller for a period of two months, but left because he reportedly could not adjust, and could not be confined. From 1964 to 1965, the Veteran worked for Icelandic Airlines, until he was hired by Sikorsky, an aviation company, for which he worked from 1966 until 1968, when he was laid off. After being laid off, the Veteran worked as a motorcycle mechanic in Connecticut. In 1971, the Veteran resumed employment at Sikorsky and continued his employment there until 2011. The Veteran also obtained the training required for an A & P license during his civilian career. The Veteran's medical records from September 2001 provide that at that time, the Veteran was employed by Sikorsky as a helicopter pilot. See September 2001 Capri. Other records indicate that while at Sikorsky, the Veteran spent time working as a mechanic. See July 2015 Capri. The Veteran's medical records show that the Veteran had an ongoing workman's compensation claim since 1989 involving a back injury. The Veteran has reported that working with others is not feasible given his irritability and outbursts, communication problems, and trouble maintaining effective relationships. See Appellant's Brief at 12. In his September 2017 VA examination, the Veteran reported that he had trouble with authority figures while working in a previous job, and anger towards others who did not take their job seriously. Although the Veteran was able to maintain employment at Sikorsky for many years, the Veteran reported that his employment there was on and off, and that he was laid off on two occasions early in his career. See October 2017 Disability Benefits Questionnaire Private and VA examiners have opined that the Veteran suffered from symptoms of difficulty establishing and maintaining effective work and social relationships, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work-like setting. The Veteran has contended that even independent work is not feasible considering his symptoms of memory loss, extreme difficulty with thought processes, hallucinations, delusions, disorientation, and anhedonia. See Appellant's Brief at 12. In the Veteran's September 2017 private psychological evaluation, the examiner found that the Veteran had intense or prolonged psychological distress at exposures to internal or external cues that symbolize or resemble an aspect of his stressor event. The Veteran reported that he experienced substantial difficulties with intrusive thoughts related to his stressor and conversations with those he served with triggered recollections. He had persistent and exaggerated negative beliefs or expectations about others and the world. The examiner noted he had feelings of detachment and estrangement from others. The examiner also noted that the Veteran appeared to live in a persistently negative emotional state characterized by anger. The examiner found his PTSD manifested in symptoms of anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; impaired judgment; gross impairment in thought process or communication; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; spatial disorientation; persistent delusions or hallucinations; and disorientation to time and place. The examiner noted the Veteran had severe troubles with irritability and angry verbal outbursts. He described a history of involvement in reckless behavior. He reported hypervigilance in that he preferred to sit with his back to the wall in public settings, he has to see out the front door, he continued to sleep with a gun, and he tended to carry a small knife with him. At that examination, the Veteran reported he experiences an angry mood nearly every day, and a diminished emotional closeness with others was described. He described a pattern of excessive anxiety and worry, largely in the form of apprehensive expectations occurring more days than not for at least six months, and difficulty controlling the worry. On mental status examination, the Veteran was initially difficult to engage in the evaluation, but later warmed to the process. His impulse control was below normal limits. 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 the Veteran's December 2017 audio VA examination, the examiner determined that the Veteran's hearing loss and tinnitus did not impact his ability to work. At his May 2018 VA examination, the Veteran reported that following service he had difficulty finding a job. He reported that he eventually moved to Connecticut and began working for Sikorsky, where he worked on and off for 40 years. He reported that one of his jobs with Sikorsky involved working at the experimental development center, and that this job involved traveling to foreign countries. The Veteran told the examiner that he retired as a crew chief in 2006. The Veteran also reported that he avoids social situations because they make him uncomfortable. He reported significant sleep issues and insomnia and that he was currently on medication for sleep. He endorsed symptoms including dysphoria, anxiety, agoraphobia, and hypervigilance, but stated that he did not receive any treatment for these symptoms. His symptoms included recurrent, involuntary intrusive memories; recurrent distressing dreams; avoidance or efforts to avoid external remedies; persistent and exaggerated beliefs or expectations about oneself, others, or the world; persistent negative emotional state; marked diminished interest or participation in significant activities; feelings of detachment or participation in significant activities; reckless or self-destructive behaviors, hypervigilance; exaggerated startle response, problems with concentration; depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; disturbances of motivation or mood; and difficulty in establishing and maintaining effective work and social relationships. During that examination, the examiner noted that at times the Veteran's speech was tangential and it was difficult for him to refocus to respond to specific questions. Overall, the examiner opined that the Veteran's PTSD resulted in 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. Given the restrictions on his employability, and resolving any doubt in favor of the Veteran, the Board finds that the effects of the manifestations of his service-connected disabilities have been sufficiently incapacitating as to result in unemployability in light of the severity of his symptoms, occupational history, and experience. While the Veteran's PTSD VA examinations on record indicate that the Veteran's occupational impairment results in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the bulk of the record supports the finding that the Veteran would not be able to obtain or maintain substantially gainful employment. His PTSD symptoms are so severe that he cannot be around groups of people, has instant memory problems, and does not sleep which leads to higher rates and levels of frustration and irritability during the day. In addition, at times, the Veteran's speech has been regarded at tangential, and difficult to refocus. In the Veteran's September 2017 examination, he reported he experiences an angry mood nearly every day, and that he had a diminished emotional closeness with others. In addition to these difficulties, the Board also notes that the Veteran is hard of hearing and as such would have difficulty hearing and following instructions from supervisors or coworkers. While a VA examiner has found that the Veteran's hearing does not impact his ability to work, the Board finds that a hearing deficit undoubtedly causes work challenges. Notably, in a machinery setting, such as the Veteran's previous employment as a helicopter mechanic, this could be dangerous. In the instant case, it is not clear that the Veteran could perform physical or non-physical work throughout the period on appeal due to his bilateral hearing loss, tinnitus, and PTSD, as discussed above. This is especially so when his employment history solely working in a mechanic position is taken into consideration. While the Veteran has many years of experience in his field, it is not clear with his current PTSD and hearing problems that he would be able to obtain, and then maintain, similar employment. Moreover, it is not clear that the Veteran could perform other physical or non-physical work for which he does not have experience in. The Veteran's PTSD symptoms are all encompassing and foreseeably create barriers to any employment in which the Veteran has any social interaction, or occupational requirements. The Board notes that the Veteran's medical records show that he has difficulty establishing and maintaining effective work and social relationships, and he experiences ongoing symptoms including dysphoria, anxiety, agoraphobia, and hypervigilance. In sum, having carefully considered the Veteran's contentions, his education and employment background, and all of the limitations imposed on him as a consequence of his service-connected disabilities, and resolving all doubt in the Veteran's favor, the Board finds that the criteria for entitlement to a TDIU have been met for the appeal period. See 38 C.F.R. § 4.16(a). See also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Vosburgh, 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.