Citation Nr: 21031595 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 12-31 415 DATE: May 24, 2021 ORDER An initial disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD is manifested by symptomatology resulting in occupational and social impairment in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. Resolving all doubt in the Veteran's favor, his service-connected PTSD has rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. For the entire appeal period, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1968 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2019, at which time the claim for a higher disability rating for PTSD was denied. The Veteran appealed that decision to the United States Court of Appeals for Veteran Claims (Court). In an August 2020 Order, the Court granted a Joint Motion of the parties, finding that the Board failed to provide an adequate statement of reasons or bases concerning the Veteran's report of some suicidal thoughts, and of experiencing a hallucination. The Court vacated the Board's decision and remanded the case for action consistent with the Joint Motion. Increased Rating PTSD 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's service-connected PTSD is evaluated under the criteria of Diagnostic Code 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under that code, a 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit has explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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." 38 C.F.R. § 4.126 (a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court found that the language of the general rating formula "indicates that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After a review of the record, the Board finds that the Veteran's PTSD results in, at most, occupational and social impairment with deficiencies in most areas, which is indicative of a 70 percent rating, but no higher. In this regard, in an October 2010 statement, the Veteran's ex-wife expressed her personal observations regarding the Veteran's psychiatric symptoms. She described receiving phone calls from the Veteran, telling her that he was having nightmares and smelling flesh burning. She noticed on several occasions the Veteran losing his temper and becoming very impatient with their children, family and friends. She stated that the Veteran did not attend any family functions and watched war movies constantly. She noticed the lack of affection the Veteran showed to their son. The Veteran's ex-wife stated that although he did not physically touch them, she was in fear of her life and her kids due to his irritability. She asserts that their marriage ended due to his psychiatric condition. On an October 2010 treatment record, it was noted that the Veteran presented with anger management issues, intrusive thoughts of combat, depression, irritability, sleep impairment with periodic nightmares, and night sweats. It was also indicated that the Veteran abused cocaine two weeks prior. The Veteran's mental health status was noted as follows: speech was logical, coherent and within normal rate, rhythm, and volume; eye contact was good; Veteran was oriented to person, place, and time; concentration was poor; short term and long term memory problems were noted to be mild; thought processes were within normal limits; negative symptoms were noted to be emotional and social withdrawal; insight and judgment were intact, but impulsive; appetite and energy were fair; anxiety was moderate; affect was appropriate; mood was noted as anxious, depressed, angry, irritable, agitated, mood swings, indicated as "nasty mood". Regarding sleep, the Veteran reported having trouble falling asleep, awakening frequently, and not being able to fall asleep. On the suicide risk assessment, the Veteran affirmed that he felt hopeless and had thoughts about taking his life about a week ago. He denied attempting suicide or having to plan to commit suicide. In a November 2010 treatment record, the Veteran reported witnessing heavy combat and the death of a close friend to suicide while in-service. He still had intrusive thoughts including re-experiencing the smell of burning flesh, nightmares, waking up at night trembling, sweating, and heart racing. The Veteran endorsed efforts to avoid thoughts, feelings and situations associated with his trauma, including abusing cocaine, avoiding close relationships, not attending Fourth of July celebrations, isolation from social interactions, and feeling emotionally detached from his family. He experienced sleeping difficulties at least 3 times per week. The Veteran stated that on most days he felt irritable and impatient towards other people. He attributed the symptoms to his divorce, poor relationships with his family, past legal problems and substance abuse. He endorsed feeling sad almost every day for more than a month. His mental status was noted as follows: appearance and behavior was slightly anxious, shifting body weight around in chair; grooming was clean and appropriately dressed; the Veteran stated that he was feeling shaky when speaking about his traumas; he was rubbing his forehead and eyes when speaking of depressive feelings and sadness; speech was clear; mood was melancholy sad; affect was flat; denied hallucinations, illusions; denied current suicidal and homicidal ideations; confirmed preoccupations with past combat activity and suicide of friend during the war; thought process was liner, logical and goal directed; judgment was intact; insight was appropriate; the Veteran was somewhat impulsive as evidenced by recent use of cocaine and cigarette use; future orientation was limited as evidenced by feelings of hopelessness; Veteran was oriented to person, place, time, and situation; long term memory was intact; and intelligence was average. In another mental health note from November 2010, the Veteran reported feeling depressed, agitated, and jumpy. He had not used (cocaine) in two weeks. He also reported experiencing poor sleep. In January 2011, the Veteran reported feeling tired. He endorsed having weird dreams, which he related to his increase in viewing war movies. The Veteran also felt a little depressed. On the June 2011 VA examination, the Veteran reported his symptoms beginning in 1999. He experienced nightmares regarding his service. He reported getting anxious around crowds of people. The Veteran stated that he lost his family because of his misuse of words and being nasty towards them, explaining that he hadn't seen his son in four to five years. The Veteran reported last working in 1990 or 1991 for American Airlines and Eastern Airlines. He stopped working because of knee problems. He reported enjoying being around people but did not try as much as he should to see people. Regarding the Veteran's social functioning, it was indicated that he isolated himself, appropriately interacted with others, was capable of basic activities of daily living and able to meet family responsibilities. The severity of the Veteran's symptoms was noted to be mild to moderate. The areas that the Veteran's symptoms affected included family role, relationships, leisure activities, and quality of life. The mental status was noted as follows: the Veteran was casually and appropriately dressed; mood was mildly depressed; affect was appropriate; no impairment of thought process and communication noted; no delusions or hallucinations noted; behavior was appropriate; denied current suicidal thoughts, ideation, plans, or intents; the Veteran admitted having passive suicidal ideation in the 1980's but that he had not had any since then; he was able to maintain personal hygiene and basic activities of daily living; oriented to person, place, and time; no memory loss or impairment noted; no presence of obsessive or ritualistic behavior which interfered with routine activities; rate and flow of speech was normal; no panic attacks noted; presence of depression, depressed mood, and anxiety were indicated; verbal outburst were noted regarding impulse control; sleep impairment was noted. In November 2014, the Veteran indicated that his PTSD symptoms were worsening. He reported that he was not getting along with anybody. He reported feeling more "jumpy." The Veteran endorsed feeling depressed and having sleeping difficulties. He reported that he did "nothing". He reported sometimes feeling hopeless, but denied suicidal ideation. The Veteran reported feeling more anxious, irritable and on edge. The Veteran reported that although he had friends, he did not visit them or talk to them any longer. Mental status was noted as follows: hygiene was fair, dressed in jeans and hooded sweatshirt; behavior was cooperative; eye contact was fair; speech was regular in rate, rhythm, volume, and prosody, spontaneous; no delusions elicited; thought processes were logical and goal directed; mood was depressed; affect was euthymic to mildly dysphoric, congruent with mood; denied any suicidal or homicidal plans or ideations; denied auditory or visual hallucinations; insight and judgment were fair; and no obvious deficiency indicated regarding cognition. In a December 2015 treatment note, the Veteran described experiencing a hallucination, in the form of a dark image, which he had spoken to since his 20's. In October 2017, the Veteran reported that financial stress put stress on his relationship with his girlfriend. He displayed depressed mood, anhedonia, disrupted sleep, excessive feelings of guilt, and "passive death wish" since January, which were in relation to his financial stress. It was noted that the Veteran was a low risk for self-harm and did not have any active suicidal ideation. The Veteran reported that although he had not seen his friends in recent months as much, he still spoke to them on the phone and found them to be supportive. He endorsed having poor concentration and sleeping difficulties. During a brief check-in visit in April 2018, the Veteran reported that he was doing good. He had obtained his own place and was doing side work as a painter. He felt that everything was falling into place. No suicidal or homicidal ideation noted. His affect was calm and stable. In a February 2019 mental health note, the Veteran reported that the holidays were pretty good. He went to Florida to attend his aunt's funeral and reported that he was able to stay around family. The Veteran reported his mood to be good, although not as good as he would like. This was attributed to financial stressors. He reported needing to find another job. The Veteran indicated that he had his own place and felt a lot better about himself. His mental status was noted as follows: appearance and attitude was noted as cooperative and attentive; cognitive functioning was grossly intact; eye contact was good; motor function was within normal limits; mood was good; affect was calm and stable; speech was within regular rate, rhythm, volume, latency, and amount; thought processes were sequential and goal-directed; denied suicidal and homicidal ideation; denied perceptual disturbances; insight and mood were good. In May 2021, the Veteran underwent a VA PTSD examination. At that time, he reported difficulty sleeping, and nightmares. He endorsed symptoms such as a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, as well as adapting to stressful circumstances, including work or a work-like setting. The Veteran also reported an intermittent inability to perform activities of daily living, to include maintenance of minimal personal hygiene. On examination, he was found to be appropriately dressed, cooperative, alert and oriented. His speech was normal in rhythm, rate and volume and his thought process were linear. His affect was down, congruent with a mood he described as "nasty and down." His thought content was void of overt delusional ideation. He reported passive suicidal ideation with no intention or plans. Overall, the examiner determined this symptomatology represented occupational and social impairment with reduced reliability and productivity. Based on the forgoing, the Board finds that for the entire appeal period, the Veteran is entitled to a rating of 70 percent, but no higher, for his service-connected PTSD as such disorder has been manifested by occupational and social impairment in most areas, as a result of his psychiatric symptomatology, including depression; desire to isolate himself; occasional suicidal ideation without attempt; irritability; anxiety; occasional difficulty concentrating; memory impairment; sleep impairment, occasional visual hallucinations; and neglect of personal appearance and hygiene, but without more severe manifestations that more nearly approximate total occupational and social impairment. The Board finds that a 100 percent rating for PTSD is not warranted as such disability does not result in total social and occupational impairment. In this regard, the Veteran's PTSD is not manifested by gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Specifically, while the Veteran has experienced hallucinations during the appeal period, they have not been persistent as evidenced by the fact that he has denied them on all but the December 2015 occasion. Moreover, the Veteran has not had any cognitive impairment, such as disorientation to person, place, or time, at any time during the course of the appeal. In this regard, there is no evidence of an impaired thought process, to include delusion or psychotic thought processes. Furthermore, there is no evidence that the Veteran is disoriented, or has more than mild memory loss. Although he indicated at the May 2021 VA examination that there was some neglect of personal appearance, this was intermittent at best as the bulk of examiners noted him to be adequately dressed and groomed. Consequently, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. In reaching such determinations, the Board has considered the Veteran's assertions as to his symptomatology and the severity of his condition, but to the extent he believes he is entitled to a rating in excess of 70 percent for PTSD, concludes that the findings of the medical professionals are entitled to greater probative weight. The Board has considered whether staged ratings are appropriate for the Veteran's service-connected PTSD. See Hart, supra. However, the Board find that his symptomatology has been stable throughout the appeal period; therefore, assigning staged ratings for such disability is not warranted. Therefore, based on the foregoing, the Board finds that, for the entire appeal period, a 70 percent rating, but no higher, for PTSD is warranted. To the extent that the Board herein denies a 100 percent rating for such disability, the preponderance of the evidence is against such a finding. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and a rating in excess of 70 percent for PTSD is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. TDIU Under the applicable criteria, a TDIU 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 service-connected disabilities, provided that one of those disabilities is ratable 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 total disability rating may be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). In determining employability, consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairments caused by nonservice-connected disabilities. See 38 C.F.R. § 3.341, 4.16, 4.19, see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central inquiry is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, not whether a veteran is unemployable solely due to his or her service-connected disabilities. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). Even if a claimant terminated his employment because of nonservice-connected disabilities, the Board must make clear to what extent this fact is even relevant to a determination that the service-connected disabilities do not prevent him from undertaking any substantially gainful employment. Floore v. Shinseki, 26 Vet. App. 376, 383 (2013). The Board has assumed jurisdiction over the issue of TDIU as part and parcel of the Veteran's initial claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). Based on the Board's decision herein, he is in receipt of a 70 percent rating for PTSD for the entire appeal period. Therefore, he meets the schedular threshold for consideration of a TDIU for the entire appeal period. Consequently, the remaining question is whether his PTSD renders him unable to secure and follow a substantially gainful occupation. The Veteran has a high school diploma and some college credits. Immediately following service, he worked for 17 years for a utility company. Then, he worked odd jobs for friends until being hired as a baggage handler by American Airlines. He last worked that job in 2000. Since that time, he continued to do odd jobs for friends, as evidenced by a March 2021 statement from a friend, but did not have full-time employment. As previously determined, the Board found that, for the entire appeal period, the Veteran's PTSD resulted in occupational impairment with deficiencies in most areas, to include work. A March 2021 report by a private psychiatrist noted the Veteran's inconsistent work history since 2000. He noted that although the Veteran's non-service connected knee disability contributed to his leaving the workforce, it was clear that the intensity, frequency, and severity of his PTSD symptomatology prevented him from working. He was incapable of consistent and appropriate communication, is often inordinately angry, and at times was unpredictable, volatile and threatening. Due to his irritability, difficulty with concentration, and struggle with suicidal ideation, the Veteran was unable to engage with the workforce since June 2000. The May 2021 VA examiner noted that irritability, an exaggerated startle response, anhedonia, feeling detached and estranged from others, and feelings of worthlessness can interfere with his interpersonal relations with coworkers and employers, leading to difficulty with appropriate communication and the ability to receive constructive criticism. The Veteran's difficulty concentrating, sleep disturbance and avoidant behaviors would interfere with his ability to concentrate and problem-solve. The examiner also explained that anhedonia, sleep impairment and fatigue would interfere with motivation, drive and the ability to deploy energy resources efficiently. Combined, these symptoms of PTSD would interfere with the ability of the Veteran to obtain and maintain employment. Based on the totality of the evidence, the Board resolves doubt in the Veteran's favor and finds that his service-connected PTSD has rendered him unable to secure or follow a substantially gainful occupation for the entire appeal period. In this regard, the Veteran's PTSD results in severe occupational impairment in regard to establishing and maintaining effective work relationships, which affected his efficiency, reliability, and productivity during the appeal period. Therefore, the Board resolves all reasonable doubt in his favor and finds that a TDIU for the entire appeal period is warranted. The claim is granted. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.