Citation Nr: 21031231 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-19 107 DATE: May 20, 2021 ORDER Entitlement to an initial rating of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. For the entire period on appeal, the occupational and social impairment from the Veteran's PTSD has been manifested by deficiencies in most areas. 2. As of the date of this decision, the Veteran has a combined rating of 70 percent, with one disability rated 40 percent or higher, and his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent rating, but not higher, for PTSD, have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from November 1968 to June 1970 This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans law Judge in December 2018. A transcript of that hearing has been associated with this claims file. This case was previously before the Board in April 2019, at which time the issues on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. Increased Rating PTSD The Veteran has asserted that he should have a higher rating for his PTSD as his symptoms are worse than those contemplated by the currently assigned rating. At a June 2013 VA examination, the Veteran reported symptoms of mood lability, panic attacks, irritability, sleep disturbances, nightmares, and reduced concentration. The Veteran reported that he had been living with his female partner, who was disabled, for 28 years, and that he cared for her, her daughter, and her granddaughter. He reported a close relationship with his partner's granddaughter. The Veteran reported that he was co-owner of a 300 acre farm with two relatives, and that he helped out on the farm seasonally. He reported that he was socially isolated, had no outside social activities, and did not want to be involved with people. He reported that he avoided crowds, and was unable to go into stores. The Veteran reported that he restored antique tractors for fun, but did not go to the shows. The Veteran reported that while he had acquaintances, he did not have any close friends. The Veteran reported that he drove a semi-truck for 23 years before stopping work as a result of physical disability. However, he did report that before he started driving a truck, he had difficulty keeping a job due to his inability to "deal" with seeing people all the time. He reported that he was unable to watch movies about the Vietnam war, he was unable to watch fireworks, and he did not like guns. He reported that when he did go out to restaurants, he had to sit with his back to the wall. The Veteran reported that boats and helicopters caused intrusive recollections, and he no longer went on boats. The Veteran reported being hypervigilant, in that he kept the curtains closed during the day, had security lights and motion sensors, and slept with a loaded shot-gun next to his bed. He reported that he was uncomfortable around people of Asian descent, and was uncomfortable going into hospitals due to traumatic memories from his service in the Republic of Vietnam. Upon mental status examination, the Veteran was noted to be alert, oriented, and cooperative. He was casually dressed and appeared younger than his stated age. He displayed adequate grooming. His thought flow was linear, coherent, and goal directed. The Veteran denied homicidal and suicidal ideations, and the examiner noted no psychosis was present. The Veteran's eye contact was good, and his speech was normal in rate, tone, and volume. The Veteran's mood was fair, and his affect was constricted. The examiner noted that the Veteran's symptoms consisted of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, anhedonia, and difficulty establishing and maintaining effective work and social relationships. The examiner noted that the Veteran's depression caused him to feel "down" a few days a week. The examiner confirmed the diagnosis of PTSD, which caused occupational and social impairment manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Of record is an August 2015 private psychiatric evaluation report. In that report, it was noted that the Veteran continued to live on his farm with his non-romantic female companion. The Veteran reported that he had a warm and affectionate relationship with his companion's five-year-old granddaughter. The Veteran reported that he had worked for 22 years as an over-the-road trucker until his retirement in 2008. Upon mental status examination, the Veteran was noted to be fully oriented. His mood was depressed with corresponding depressed affect. There was no evidence of suicidal ideation, plan, or intent, although the Veteran did experience transient wished of death. The Veteran was distractible with poor concentrations. His memory was intact. Thought content revealed no delusions of obsessions. The Veteran denied hallucinations, or other psychotic symptoms. the examiner found that the Veteran's impairment resulting from his PTSD consisted of the following: recurrent and distressing recollections; nightmares; feelings of recurrence of trauma; psychological distress to internal and external cues; avoidance of thoughts and activities; emotional numbness; feelings of detachment; restricted range of affect; chronic sleep impairment; hypervigilance; and angry outburst. The examiner found that the Veteran was totally occupationally and socially impaired as a result of his PTSD. In so funding, the examiner noted that the Veteran's PTSD had impacted many domains of his life, in that he was socially isolated, and mostly confined to his home; he had deficiencies in work and family relations, in that he had two short-lived failed marriages and limited or minimal contact with his long-term girlfriend; he was deficient in his thinking in that he was content to remain as he was; he had deficiencies in mood and affect manifested by a restricted range of emotions; he was deficient in cognitive function, in that he had poor concentration; and he had deficiencies in impulse control, manifested by irritability, and periods of fighting especially in the 1970's. At his December 2018 hearing, the Veteran testified that his PTSD symptoms have gotten worse since his June 2013 VA examination which includes the Veteran having panic attacks every day and his dreams have gotten worse. At a January 2020 VA examination, the Veteran reported that he continued to live with his girlfriend. The Veteran reported that he had "some" friends, but that he did not belong to any clubs or organizations. He reported that he had worked as a truck driver for approximately 25 years before his retirement in 2008. The Veteran reported being hospitalized approximately five years prior for depression and suicidality. The examiner noted that the Veteran experienced the following effects of his PTSD: reexperiencing his traumatic event; recurrent, involuntary, and intrusive distressing recollections; nightmares; physiological distress to external and internal cues; avoidance; persistent and exaggerated negative beliefs or expectations of himself, others, and the world; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritability; hypervigilance; and sleep disturbance. Upon mental status examination, the Veteran was alert, oriented, and cooperative. He presented with adequate grooming and hygiene. His speech was normal in rate, tone, and volume. His mood was appropriate, and his affect was congruent with his mood. He presented with linear, coherent, and goal directed. His thought flow was without psychosis, suicidality, or homicidality. Overall, the Veteran was a reliable historian with intact cognition and memory. The examiner noted that the Veteran's PTSD symptoms consisted of depressed mood, anxiety, panic attacks, chronic sleep impairment, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner confirmed the diagnosis of PTSD and found that the occupational and social impairment resulting from such was manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A review of the record shows that the Veteran has received mental health treatment at the VA Medical Center. A review of the VA Medical Center treatment notes of record show that the Veteran generally has reported depression, nightmares, anxiety, panic attacks, isolation, anhedonia, avoidance, poor energy, prior suicide attempts, hypervigilance, hyperarousal, and passive suicidal thoughts with no plan or intent. The Board finds that the Veteran is entitled to an initial rating of 70 percent for PTSD for the entire period on appeal. In this regard, the Board notes that the Veteran's symptoms have more closely approximated deficiencies in most areas for the entire period on appeal. The Veteran has consistently reported significant symptoms of anhedonia, irritability, isolation, avoidance, depression, anxiety, and depression. While the June 2013 VA examiner noted that the Veteran did have some difficulty establishing and maintaining relationships, it does not appear that the Veteran has any close friends, and while he lives with a long-time partner, it does not appear to be a romantic relationship. Further, the Veteran has reported suicidal ideations during the course of the appeal. Additionally, the Veteran has been noted to experience issues with concentration and impulse control, and has been reported to experience angry outbursts. The VA treatment records along with the Veteran's lay testimony support a finding that the Veteran's PTSD symptoms are more severe, more frequent, and longer in duration than contemplated by the currently assigned initial rating of 50 percent rating. As such, the Board finds that an initial 70 percent rating is warranted for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). The Board acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports, the private psychological evaluation report, and the mental health treatment records do not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating for PTSD for the entire period on appeal. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment with deficiencies in most areas sufficient to warrant a 70 percent rating for the entire period on appeal even though all the specific symptoms listed for that rating are not manifested. Consideration has been given to assigning a higher rating for the appeal period. However, there is no indication from the record that the Veteran's PTSD results in total social and occupational impairment. The Veteran has not exhibited gross impairment in thought processes or communications, nor has he had persistent delusions or hallucinations. He has not exhibited grossly inappropriate behavior, and, while he has reported suicidal ideation, he is not in persistent danger of hurting himself or others. Additionally, he has not shown an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Further, while he has exhibited some memory loss and difficulty concentrating, it has not resulted in an inability to remember the names of close relatives or his own name. Accordingly, the record does not demonstrate symptoms so severe as to cause total occupational and social impairment. Therefore, the Board finds that a rating in excess pf 70 percent for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has also been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). TDIU The Veteran asserts he is unable to work because of his service-connected disability. As of the date of this decision, the Veteran has a combined rating of 70 percent, with one disability rated 40 percent or higher. Therefore, the Board finds that the Veteran has met the schedular criteria for assignment of a TDIU for the entire period on appeal. 38 C.F.R. § 4.16. A review of the record shows that the Veteran has reported that he last worked full-time in May 2007 as a truck driver. The Veteran worked in the capacity of a long- haul truck driver from 1986 to 2008, which is over 20 years. He reported that he became too disabled to work because of his PTSD. The Veteran has the equivalent of a high school education and he has completed two years of college. Social Security Administration (SSA) records reflect that the Veteran is in receipt of SSA disability benefits for a primary diagnosis of osteoarthrosis and a secondary diagnosis of muscle/ligament disorders. The Veteran noted on his SSA application that because of arthritis and PTSD, he has been unable to work for the past two years. In the September 2015 private psychiatric evaluation described above, the private examiner found that as a result of PTSD, the Veteran was totally occupationally impaired. Specifically, it was noted that because of impairment resulting from the Veteran's PTSD, he was unable to maintain the sustained attention, the persistence and pace, or the emotional stability required to carry out work functions, and was unemployable as a result. Moreover, the Board notes that the Veteran's depressive symptoms, chronic sleep impairment, panic attacks, flattened affect, disturbances of motivation and mood, and difficulty in stressful worklike setting would severely compromise the Veteran's ability to concentrate and focus on the daily demands of his occupation. The noted service-connected disability would make it challenging for the Veteran to be productive in an occupational environment on a consistent basis. Finally, there is no indication from the record that the Veteran would be capable of other forms of employment, as his industrial experience is limited to long-haul trucking. The Veteran testified that he would not be suited for a desk job because of panic attacks and the lack of computer skills, with an inability to adequately concentrate sufficiently to learn new skills. In light of the Veteran's occupational background and the functional limitations described above, the Board finds that he is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.