Citation Nr: 21031256 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-63 741 DATE: May 21, 2021 ORDER Prior to September 21, 2020, an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with unspecified depressive disorder is granted. From September 21, 2020, a rating in excess of 70 percent for PTSD with unspecified depressive disorder is denied. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) prior to September 21, 2020 is granted. FINDINGS OF FACT 1. Prior to September 21, 2020, the severity, frequency, and duration of the Veteran's psychiatric symptoms most closely approximated occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been demonstrated. 2. On and after September 21, 2020, the severity, frequency, and duration of the Veteran's psychiatric symptoms most closely approximate occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been demonstrated. 3. Prior to September 21, 2020, the Veteran's service-connected PTSD with unspecified depressive disorder and hearing loss precluded him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to September 21, 2020, the criteria for a rating of 70 percent, but no higher, for PTSD with unspecified depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. On and after September 21, 2020, the criteria for a rating in excess of 70 percent for PTSD with unspecified depressive disorder 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 (DC) 9411. 3. Prior to September 21, 2020, the criteria for entitlement to a TDIU were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the United States Marine Corps from June 1966 to June 1968. These matters are on appeal from a January 2016 rating decision. In March 2020, the Veteran testified at a Board of Veterans' Appeals (Board) hearing before the undersigned. In a July 2020 remand, the Board found the issue of entitlement to a TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In a November 2020 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to a TDIU effective September 21, 2020. As the grant of TDIU was partial in that it did not cover the entire period on appeal, the issue of entitlement to a TDIU for the period prior to September 21, 2020, is still in appellate status and will be addressed by the Board in this decision. Increased Ratings for PTSD The Veteran was initially granted service connection for PTSD with unspecified depressive disorder in a January 2016 Rating Decision pursuant to Diagnostic Code 9411 with an evaluation at 30 percent effective October 6, 2015. In July 2020, the Board remanded the Veteran's claim to obtain an examination to assess the current severity of the Veteran's psychiatric symptoms. In a November 2020 rating decision, the AOJ increased the Veteran's PTSD rating from 30 percent to 70 percent effective September 21, 2020. The Veteran has been rated under DC 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. Under the general rating formula, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 of 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. 38 C.F.R. § 4.130, DC 9411. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated 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." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. Turning to the evidence, the Veteran was afforded a VA examination in December 2015. The examiner concluded that the Veteran's disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The Veteran reported he has been married twice. His first marriage lasted 6 years; he noted that his ex-wife could not handle him and vaguely described impulsiveness and wild behavior. He noted he had two children from this marriage. At the time of this examination, he had a positive relationship with both children. Additionally, he noted that he had been married for 35 years to his second wife and reported that they enjoyed an active lifestyle together. The Veteran had remained physically active since service. He noted that he walked, occasionally lifted weights, played tennis, and enjoyed dancing. The Veteran reported that he had four close friends, but he did not share a lot of personal history with them. Occupationally, the Veteran had worked as a lineman for over 40 years and retired in management. The Veteran denied any problems with work, however, he noted that other employees used to call him "crazy", but he was unable to provide examples of why they called him that. Further, following service, the Veteran was mandated to see a psychologist twice a week for work in the 1970's. After his evaluation, the Veteran was removed from his position and moved to a different department. After being moved to another department, the Veteran reported he did not have any other problems at work. The Veteran's reported symptoms included avoidance of conversations and activities that reminded him of deployment, anxiety, hypervigilance, difficulty connecting with others, chronic sleep impairment due to intermittent waking and nightmares reckless or self-destructive behavior, and difficulty in adapting to stressful circumstances including work or a worklike setting. See December 2015 VA examination. The Veteran appeared for several mental health assessments. In September 2016, he reported symptoms of intrusive memories, hypervigilance, and hyper startle. He also reported a history of heavy drinking, noting that drinking too much could affect his mood and his memory; while he stated he was still drinking, he acknowledged that he had cut back. Additionally, he denied suicidal ideation at the time of the appointment. However, he reported a history of suicidal thoughts, specifically referencing a time in 1976 where he thought about driving his car into a wall. See March 2017 CAPRI p. 3. In November 2017, he reported that he felt his PTSD symptoms were more difficult to manage and he was under more pressure. See December 2017 Medical Treatment Record. The Veteran attended several group counseling sessions in 2019. During these group sessions, he reported symptoms which included, hypervigilance, unprovoked irritability, agitation, and sleepiness. In a March 2019 session, the Veteran shared that he had an overwhelming need to protect his home even when traveling. In an April 2019 session, he reported that he had been experiencing unprovoked irritability. In a May 2019 session, the Veteran discussed his symptoms of agitation, sleepiness, and hypervigilance. In an August 2019 session, he noted that recent current events at the time of the meeting had caused regression in his behavior and that he was more irritable and off centered. The Veteran was also seen for individual sessions. He reported that he was experiencing severe nightmares and he had been acting out his dreams in his sleep which resulted in him sleepwalking, falling out of bed, and harming himself and his wife. He had become so violent in his sleep he noted that he was punching and hitting his wife and even broke his own knuckle on his nightstand. Following this report, the Veteran was referred for substance abuse treatment for his drinking. The Veteran had previously noted that drinking had lessened his PTSD symptoms. In a January 2020 individual social work consult, the Veteran had reported increased anxiety, depression, and chronic sleep disruption, specifically nightmares. Moreover, the social worker had noted at the time of the consult, that the Veteran had a positive primary screen for risk of suicide in the past two weeks. See March 2020 Medical Treatment Record pp. 37, 72, 73, 74, 76, 80, 86, 95, 100, 101, 103, 124, 125. The Veteran testified at a hearing in March 2020 regarding his PTSD symptoms indicated his symptoms had worsened since his last examination. He noted that his nightmares had returned. He described his nightmares as violent, reporting that he kicked, punched, sleepwalked, had night sweats and sleep apnea. The Veteran stated that he does not sleep in the same bed as his wife because of the violence. Additionally, the Veteran reported he was having anger issues and difficulties with his depression and anxiety. Occupationally, the Veteran noted on two occasions his PTSD symptoms impacted his employment. First, he testified that he was formally disciplined as a lineman. He reported an incident where he was drinking while at work and had an accident where filing cabinets fell out of the back of his truck. Second, he noted that when he worked at a nuclear plant, was deemed unfit by the plants psychiatrist to work there, and was transferred to a new department. Socially, he testified that he has been married to his second wife for 39 years but that he has separated from his current wife twice. The Veteran's wife testified that he had become emotionally abusive towards her. She testified that she thought about leaving him because he was very angry and would scream and punch. She noted that being married to the Veteran is very stressful. She would worry about him getting fired from his job. She further noted that he does not have a good relationship with his children from his previous marriage but has a good relationship with his daughter from his current marriage. Moreover, the Veteran testified that had suicidal thoughts every once in a while, specifically noting that he has been thinking about it for a long time especially when the pressure got to a certain point. See March 2020 Hearing Transcript. The Veteran's wife spoke regarding the Veteran's PTSD symptoms in a March 2020 mental health note. She reported that the Veteran lost his temper often and that this was his basic problem at work. She noted that his days were numbered, and so he decided to retire rather than be fired. She also noted that his anger issues were not only at work. She reported that she was frightened by the intensity of his anger. See April 2020 Medical Treatment Record p. 1. Following the Board's remand, the Veteran was afforded a VA examination in September 2020. The examiner concluded that the Veteran's disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran indicated he has two children from his first marriage and does not have a great relationship with them. The relationship deteriorated in the past five years to the point where they barely talk. At the time of this examination, the Veteran had been married for 40 years to his current wife; he reported they sleep separately because of his violent nightmares. The Veteran has one child from this marriage, and he has a good relationship with his daughter. The Veteran also reported he recently reconnected with his brother after he was diagnosed with a prolonged illness and noted they got along fine. Socially, the Veteran noted he considers himself a loner and sees one friend, a neighbor. He reported that he was less social than five years ago, and that people get on his nerves. However, he belongs to the American Legion and Moose Lodge. Occupationally, the Veteran noted that no new work history since his last evaluation and that he has remained retired for 10 years. Additionally, the Veteran's wife reported that the Veteran drinks himself to sleep every night. The Veteran acknowledged he does drink to cope with his mental health, stating that it calms him down. The Veteran's reported symptoms included irritable behavior and angry outbursts, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances including work or a work like setting. The Veteran noted that he feels sad and admitted to some feelings of worthlessness and guilt. He is withdrawn and prefers to be alone and was worried about his family and finances. Moreover, the Veteran's wife noted the Veteran had to be reminded to shower but he was able to brush his teeth and change his clothing on his own. In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board concludes the evidence supports a 70 percent rating throughout the period on appeal. Prior to the increase in rating on September 21, 2020, the Veteran's psychiatric symptoms included depressed mood, anxiety, chronic sleep impairment, unprovoked irritability, suicidal ideation, anger, and difficulty in establishing and maintaining effective and social relationships. Notably, the United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). As a result of his consistent feelings of anxiety, depression, and chronic anger resulting in unprovoked irritability and outbursts, coupled with the Court's guidance in Bankhead concerning suicidal ideation, the Board finds that the criteria for a 70 percent rating have been more nearly approximated. Based on the foregoing, a 70 percent rating for the period prior to September 21, 2020, is granted. However, the Board finds that the preponderance of the evidence is against finding that a higher rating of 100 percent is warranted at any point during the appeal period. The evidence does not demonstrate total occupational and social impairment. For example, at no point during appeal period, was there evidence of persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, nor was evidence of a similar type and degree of such symptoms found. Rather, although his marriage was strained at times, the Veteran was able to remain married for 40 years and maintained his position as lineman until he retired. Speech, thought content, and processes were generally noted to be clear, coherent, and unremarkable. There is no indication of persistent delusions or hallucinations. In the Veteran's counseling sessions, he actively participated in discussion and has been able to maintain various social relationships to include with one of his daughters, a neighbor and through belonging to the American Legion and Moose Lodge. In sum, symptoms and functioning consistent with total occupational and social impairment have not been demonstrated. As such, a 100 percent rating for PTSD with unspecified depressive disorder is not warranted. TDIU As explained, following the Board's June 2020 remand, the Veteran was granted entitlement to a TDIU in a November 2020 rating decision. In that decision, the AOJ assigned an effective date of September 21, 2020, because that is when the Veteran's service-connected disabilities met the schedular requirements under 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Given that the claim for a TDIU is part and parcel of the underlying increased rating claim, the issue of entitlement to a TDIU prior to September 21, 2020 remains before the Board. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). Here, the Veteran contends his symptoms from his service-connected disabilities including PTSD, coronary artery disease and hearing loss have rendered him unemployable in both sedentary and labor-intensive employment. See August 2020 VA Form 21-8940. Prior to September 21, 2020, the Veteran was service connected for tinnitus at a 10 percent rating, bilateral hearing loss at a 10 percent rating, coronary artery disease at a 10 percent rating and PTSD at a 30 percent rating. However, as a result of the increased rating granted in this decision, the Veteran's 30 percent PTSD rating has been increased to 70 percent. Therefore, the schedular criteria for a TDIU have been met throughout the appeal period. Thus, the crux of this appeal rests upon whether the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities prior to the grant of TDIU effective September 21, 2020. Turning to the evidence, the Veteran submitted a VA Form 21-8940, an Application for Increased Compensation based on Unemployability, in August 2020. The Veteran noted that he last worked in September 2010 as a lineman for First Energy Corporation for 39 years. He completed his high school education and did not report any other specialized education or training. See August 2020 VA Form 21-8940. Regarding PTSD, the Veteran noted in a December 2015 examination that his PTSD symptoms made it difficult to adapt to stressful circumstances including work or a worklike setting. The Veteran noted that people at work would call him "Crazy John" and that he was previously removed from one job after a psychological evaluation in 1970. However, the examiner noted the Veteran's PTSD symptoms would not preclude the Veteran from obtaining or maintaining gainful employment. See December 2015 examination. In the Veteran's March 2020 Hearing, the Veteran noted two occasions where his PTSD symptoms impacted his employment. First, he testified that he was formally disciplined as a lineman. He reported an incident where he was drinking while at work and had an accident where filing cabinets fell out of the back of his truck. Second, he noted that when he worked at a nuclear plant, was deemed unfit by the plants psychiatrist to work there, and was transferred to a new department. The Veteran's wife also testified that she worried the Veteran would be fired for his temper. See March 2020 Hearing Transcript. Additionally, the Veteran's wife yet again reported in a March 2020 mental health note that his temper affected his employability. She noted that the Veteran retired from his position because he knew he would have been fired due to his anger issues. See April 2020 Medical Treatment Record p. 1. Regarding hearing loss and tinnitus, the Veteran noted in a December 2015 examination that he had difficulty in most listening situations. Further, the Veteran reported that his tinnitus did not interfere with his daily activities. See December 2015 VA examination. Regarding coronary artery disease, an examiner in a December 2016 Disability Benefits Questionnaire noted that the Veteran's heart disability impacted his ability to work. However, the examiner did note that the Veteran could perform sedentary work. The Veteran was also afforded a VA examination in March 2017 and the examiner noted that his heart disabilities did not impact his ability to work. See March 2017 VA examination. After a careful review of the record, the Board finds that the preponderance of the evidence supports the conclusion that the Veteran's PTSD symptoms and hearing loss rendered him unemployable prior to September 21, 2020. While the December 2015 examiner found the Veteran's PTSD symptoms would not preclude the him from obtaining or maintaining gainful employment, the Veteran consistently reported that his irritability and anger issues impacted his ability to work. Additionally, the Veteran's wife corroborated that his anger issues at work were so bad he felt he had to retire to avoid being fired on account of them. Further, while the December 2015 examiner noted that tinnitus did not interfere with his daily life, the Veteran reported a functional impact caused by hearing loss, specifically difficulty in most listening situations. In sum, the Board finds that the Veteran's hearing loss coupled with significant psychiatric limitations, specifically his irritability, can reasonably be said to render employment impossible under the circumstances of this case prior to September 21, 2020. See Geib v. Shinseki, 733 F.3d 1350 (2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the AOJ). Resolving any doubt in the Veteran's favor, the Board finds that there is evidence sufficient to conclude that prior to September 21, 2020, the Veteran was unable to obtain or maintain substantially gainful employment due solely to his service-connected disabilities. Accordingly, the criteria for a TDIU are met and the claim is granted. 38 C.F.R. §§ 3.340, 3.341, 4.16. C.B. IWANOWSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.