Citation Nr: 21030754 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-24 280 DATE: May 19, 2021 ORDER Entitlement to an increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD), prior to December 16, 2013, is granted. Entitlement to an increased rating in excess of 70 percent for PTSD, from December 16, 2013, is denied. Entitlement to an effective date of October 1, 2011, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to December 16, 2013, the Veteran's PTSD was manifested by occupational and social impairment, with deficiencies in most areas. It was not manifested by total social and occupational impairment. 2. From December 16, 2013, the Veteran's PTSD was not manifested by total social and occupational impairment. 3. The Veteran filed his increased rating claim for PTSD received April 22, 2011. From October 1, 2011, the date the Veteran stopped working, he was unable to obtain or maintain substantially gainful employment due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 70 percent, but no higher, for PTSD, prior to December 16, 2013, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for an increased rating in excess of 70 percent, for PTSD, from December 16, 2013, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for an effective date of October 1, 2011, but no earlier, for the grant of entitlement to TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1968. The Veteran appealed an August 2013 rating decision by the Agency of Original Jurisdiction (AOJ). In June 2018 and January 2021, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A December 2019 rating decision granted an increased rating of 70 percent for the Veteran's service-connected PTSD effective April 23, 2019. An August 2020 rating decision granted TDIU and special monthly compensation (SMC) effective April 23, 2019. A February 2021 rating decision granted an increased rating of 70 percent for PTSD effective December 16, 2013 and an earlier effective date for the grant of TDIU effective December 16, 2013. A Board hearing was held in August 2014. A transcript is of record. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The rating criteria provide that a 30 percent evaluation is warranted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. The rating criteria provide that 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 effective work and social relationships. Id. 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); inability to establish and maintain effective relationships. Id. 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; 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 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. Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). 1. Prior to December 16, 2013 Considering all relevant evidence, the Board finds that a disability rating of 70 percent, but no higher, for the Veteran's service-connected PTSD is warranted, prior to December 16, 2013. The Veteran has exhibited occupational and social impairment in most areas. June 2012 VA treatment records noted anxiety, irritability, intrusive memories, and disturbed sleep. An April 2013 VA examination report noted the Veteran re-experienced symptoms, he was uncomfortable when in activities with other people, but managed to go to car shows, and that he had recurrent and distressing recollections, avoidance, sleep difficulty, irritability or outbursts of anger, and anxiety. A December 2013 letter by Psychiatrist J.F. noted severe PTSD, continued psychotherapy treatment, that the Veteran had night sweats, was startled easily, had flashbacks, depression, nightmares, intrusive memories of war, emotional numbing, anger, hopelessness, isolated behavior, avoidance, severe anxiety, and that he could not work anymore due to the severity of his symptoms. An October 2018 DBQ by psychotherapist S.G. noted the Veteran had not worked since October 2012 due to the severity of his PTSD. The Board notes the AOJ increased the Veteran's rating to 70 percent based on the date of psychiatrist J.F.'s December 2013 letter. However, it is likely the Veteran possessed such severe symptoms prior to the drafting of the December 2013 letter. The letter was based on past treatment and knowledge of the Veteran. Therefore, the evidence demonstrated that the Veteran's symptoms were consistent and severe enough to warrant a 70 percent rating prior to December 16, 2013. However, the Board finds the record demonstrated the Veteran had not exhibited total occupational and social impairment. The Veteran did not have gross impairment in thought processes or communication. The Veteran was still able to engage in limited hobby activities. The evidence of record also did not demonstrate frequent delusions or hallucinations. The Veteran had not been found to be disorientated as to time or place. The Veteran also remembered his own name. While the Veteran did exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Hence, the criteria for a finding of a 100 percent evaluation, prior to December 16, 2013, are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms have remained constant at 70 percent levels for his PTSD, staged ratings are not warranted. Thus, the evidence is in equipoise and the Board finds that the criteria for an increased rating of 70 percent, but no higher, for PTSD, prior to December 16, 2013, are met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. 2. From December 16, 2013 January 2016 VA treatment records noted the Veteran's hobby of fixing cars and that he has skills in carpentry and fixes things around the house. September 2018 and February 2019 VA treatment records noted the Veteran attends group therapy and actively participated. Psychotherapist S.G.'s October 2018 DBQ noted depression, flashbacks, sleep issues, intrusive memories, nightmares, total occupational and social impairment, recurrent and distressing recollection, intense psychological distress, avoidance, markedly diminished interest or participation in activities, irritability or outbursts of anger, difficulty concentrating, exaggerated startled response, mild memory loss, impaired judgment, and inability to establish relationships. A May 2019 VA examination report noted a typical day of being involved in home renovation projects and engaging in the hobby of restoring vintage cars, the Veteran spends time with his sister and her friends once a month, and that he socially isolates himself, has poor concentration, recurrent nightmares, flashbacks, sleep issues, distressing memories, avoidance, reckless or self-destructive behavior, hypervigilance, exaggerated startled response, concentration problems, and difficulty establishing relationships. The Veteran's December 2020 statement noted the Veteran will go to a BBQ once in a while, that he visits his sister, drives his classic cars to car shows, attends weekly group therapy, and that he has flashbacks and difficulty sleeping. Taking into account all relevant evidence, the Board finds that a disability rating of 70 percent is appropriate for the Veteran's service-connected PTSD from December 16, 2013. The Veteran has exhibited occupational and social impairment in most areas. The Veteran has not exhibited total occupational and social impairment. While the Veteran exhibits significant occupational and social impairment, it falls short of total. The Veteran does not have gross impairment in thought processes or communication. The Veteran engages in social activities outside of his home. The Veteran stays active with his hobbies and home improvement activities. The Veteran has not been found to be disorientated as to time or place. The Veteran also remembers his own name. He also has limited social contacts, including with his sister. As such, the evidence does not demonstrate total occupational and social impairment from December 16, 2013. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Hence, the criteria for a 100 percent evaluation are not met. Thus, the Board finds that the criteria for an increased rating in excess of 70 percent for PTSD, from December 16, 2013, are not met. TDIU Entitlement to TDIU arose during the course of the Veteran's increased rating claim for his PTSD. The Veteran's increased rating claim for PTSD was received April 22, 2011. As such, entitlement to TDIU was granted for only part of the period on appeal. Therefore, the Board will address entitlement to TDIU prior to December 16, 2013. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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 the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). The Veteran worked for the United States Postal Service (USPS) as a building equipment mechanic until October 2011. See January 2014 VA Form 21-8940. The Veteran has one year of college education. Id. His last day of working was September 30, 2011. See November 2020 VA Form 21-4192. Prior to working for USPS, he worked as a dental technician. See August 2014 Board Hearing Tr. at 8. Pursuant to this decision, the Veteran's PTSD is rated at 70 percent disabling for the entire period on appeal. Prior to October 1, 2011, the record is clear that the Veteran was actively working full time at USPS. The Veteran made $54,000 in 2011. See April 2020 VA Form 21-8940. The record does not demonstrate that the Veteran was working in a protected environment. As such, entitlement to an effective date earlier than October 1, 2011 is not warranted. A December 2013 letter by Psychiatrist J.F. noted the Veteran could not work anymore due to the severity of his PTSD symptoms. The Veteran stated his PTSD caused him to lose his temper. See August 2014 Board Hearing Tr. at 22. An October 2018 DBQ by psychotherapist S.G. noted the Veteran had not worked since October 2012 due to the severity of his illness. This statement indicates that the Veteran had not worked since retiring from USPS due to his service-connected PTSD symptoms. The Veteran stated in an April 2020 VA Form 21-8940 that he often felt fatigued and sleepy on the job, which required him to climb ladders, and that he got into verbal disagreements with his supervisor. The Veteran then noted medication for his PTSD. Id. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, for the last decade of the Veteran's active employment, he worked as a building equipment mechanic for USPS. Such a position required the Veteran's to climb ladders and maintenance all areas of the building. However, the Veteran expressed safety concerns given his sleepiness throughout the day due to his PTSD and medication. Additionally, the Veteran had irritability and anger issues. The Veteran noted issues with his supervisor due to his PTSD symptoms. Overall, the Veteran would not be able to work a job that required him to work with others given his anger issues and desired isolation from others. This includes customer service or retail positions. Although the Veteran may have been able to work a position in isolation, as warehousing, home improvement, or with computers, the Veteran still had safety concerns given his sleep issues, had trouble with supervisors, and did not have experience or training in such fields. Notably, the record includes statements from medical providers noting the Veteran was not able to work at the time due to his PTSD. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected PTSD. Therefore, given the totality of the evidence, the Board finds the criteria for an effective date of October 1, 2011, but no earlier, for entitlement to TDIU have been met. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.