Citation Nr: 21031979 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 13-28 967 DATE: May 25, 2021 ORDER Prior to January 5, 2015, an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. From January 5, 2015 to August 29, 2019, a rating in excess of 70 percent for PTSD is denied. Effective July 31, 2009, a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. From July 31, 2009 to August 29, 2019, the Veteran's PTSD manifested in occupational and social impairment with deficiencies in most areas. Total occupational and social impairment for this time period has not been shown. 2. Effective July 31, 2009, the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to January 5, 2015, the criteria for an initial rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. From January 5, 2015 to August 29, 2019, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9411. 3. Effective July 31, 2009, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2002 to October 2005. The matter is before the Board of Veterans' Appeals (Board) on appeal from August 2011 and November 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in August 2017, with the issue of service connection for PTSD remanded for treatment records and a new examination, and the issue of TDIU remanded to attain employment records. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial rating in excess of 30 percent for PTSD prior to January 5, 2015, and in excess of 70 percent from January 5, 2015 to August 29, 2019. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran is seeking a higher rating for his PTSD. The appeal period now before the Board begins in July 2009, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). While the claim was on appeal, the Veteran was awarded 70 percent from January 5, 2015, and 100 percent from August 2019. As this does not represent a full grant of the benefit sought, the increased rating claim now before the Board is entitlement to a rating for PTSD in excess of 30 percent prior to January 5, 2015, and in excess of 70 percent from January 5, 2015 to August 29, 2019. The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. A 10 percent evaluation is warranted for PTSD where there is 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 continuous medication. A 30 percent evaluation is warranted for PTSD where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted for PTSD where there is 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 evaluation is warranted where there is objective evidence demonstrating 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, or 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 the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when 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 and place; and memory loss for names of close relatives, own occupation, or own name. The symptoms listed in DC 9411 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). While Global Assessment of Functioning (GAF) scores may be included in the Veteran's medical records, the Board will not consider GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities). Turning to the evidence, the Veteran contends that his PTSD symptoms have led to the end of his marriage, created an alcohol abuse problem, and caused him the inability to hold down a job. See July 2009 Statement in Support of Claim. He began seeking assistance at VA in 2008, and in February 2009, VA treatment records show the Veteran on the verge of eviction and struggling with PTSD, to include symptoms of hypervigilance, anxiety, decreased memory and concentration, and intrusive thoughts of hurting people. In January 2010, the Veteran was admitted to an inpatient clinic for substance abuse treatment, and was quickly placed in the psychiatric ward of the facility. It was indicated that he exhibited homicidal ideation, after threatening violent acts and that he may end up in jail as he was "going to kill people." His mental health symptoms also included impulsiveness, anger, and difficulty coping with emotions appropriately. He was also described as "unkempt," judgement varying from good to poor, heightened hypervigilance, and experiencing flashbacks. At that time he was intermittently residing between his mother and father's residences. In May 2010, the Veteran underwent a mental status evaluation during the application process for Social Security Administration (SSA) benefits. He self-described being irritable around people, without friends, and was not dating. The psychologist found the Veteran to exhibit memory in the low average range, with impaired short-term memory, weak judgment, and moderate difficulties in social functioning and maintaining concentration. The Veteran was afforded a VA examination in January 2011. The Veteran reported being "always depressed." He also indicated a history of cutting/self-mutilation, staying in bed all day, intrusive thoughts, and avoiding locations that may be reminders. With regard to relationships, he was currently residing with his mother, but was homeless for one year following marital separation, and denied any friendships. The mental status exam found the Veteran positive for irritability, depression, anxiety, blunted affect, distractibility, forgetfulness, paranoia, limited insight and judgment, dissociative symptoms, avoidance, exaggerated startle response, and hypervigilance. The psychologist found that his PTSD adversely affects his psychosocial and occupational functioning and quality of life to a moderate degree. VA treatment records reflect that throughout 2011, the Veteran had little to no social interaction other than with his mother with whom he lives. He exhibited dysthymia, flat affect, slowed speech, poor concentration and memory, and poor insight and judgment. It was noted in February 2011 that his quality of life was "severely" impacted due to his mental health problems. The Veteran underwent another psychological evaluation in November 2011, during a second application for SSA benefits. The Veteran expressed suicidal thoughts, and the examiner found the Veteran experiencing difficulty with tracking conversation, frequent tangential or circumstantial thinking, impaired reality, delusional thoughts, and poor insight, memory, and concentration. The psychologist provided a "poor" prognosis for the Veteran's ability to perform even routine, repetitive tasks, specifically in competitive work environments. Based on this evaluation and other findings, the SSA awarded the Veteran disability benefits from January 2008, as the last date he worked as a result of his PTSD and seizures. Up until the next VA examination in January 2015, the Veteran continued to exhibit mental health struggles to include self-harm by cutting, and suicidal ideation described as "that's the way I feel all the time and is nothing new." There was also a possible suicide attempt in October 2013 when the Veteran's mother reported to VA that her son had attempted to kill himself with a knife, made a couple of superficial cuts, and additionally threatened her. At his January 2015 examination, the Veteran reported still living with his mother. The examiner noted the following symptoms at the January 2015 examination: social isolation; suicidal and homicidal ideation without intent; insomnia; irritability; anxiety attacks; paranoia; spotty long and short term memory; depressed mood; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, and in adapting to stressful circumstances; and neglect of personal appearance and hygiene. The examiner determined that he suffers occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At the time of his most recent VA examination in August 2019, the VA examiner determined that his PTSD symptoms were causing him total occupational and social impairment. This was based on symptoms of depressed mood, anxiety, suspiciousness, weekly panic attacks, mild memory loss (forgetting names, directions or recent events), flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or work like setting, apathy, poor hygiene, and lethargy. Based on the foregoing, the Board determines that the evidence in the Veteran's claims file reflect that his PTSD symptoms most closely approximate occupational and social impairment with deficiencies in most areas, from the time of service connection on July 31, 2009, until August 29, 2019. This warrants a 70 percent rating. 38 C.F.R. § 4.7. The Board also finds that the Veteran's features of service-connected PTSD do not warrant a rating in excess of 70 percent during this period because the frequency, severity, and duration of the symptoms did not result in total occupational and social impairment. This is with consideration of the listed example symptoms in the rating criteria, consideration that the listed examples are not exhaustive, and with a focus on the impairment levels in which they result. See Vazquez-Claudio, 713 F.3d at 117-118; Mauerhan, 16 Vet. App. at 442. In February 2009, just prior to his initial service-connection claim, the Veteran was experiencing crisis, with eviction looming, intrusive thoughts of hurting others, hypervigilance, anxiety, and problems with memory and concentration. This escalated into inpatient treatment in January 2010 for addiction and PTSD, with homicidal threats, impulsivity, and poor judgment. He has an ongoing history of periodic self-harm with cutting and burning himself, and continued homicidal and suicidal ideation. He also has demonstrated the inability to establish and maintain effective relationships, with a divorce, little to no friendships, and almost complete social isolation. This evidence supports the criteria for a 70 percent rating since the effective date of service connection for PTSD. While an increased rating to 70 percent for the appeal period prior to August 29, 2019 is warranted, a further increase to 100 for total occupational and social impairment is not warranted. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a "persistent" threat of danger to others, "gross impairment in thought processes or communication," not knowing one's own name, the names of close relatives, or one's occupation, and an inability to perform activities of daily living, including maintenance of even minimal personal hygiene due to psychological distress. The Board determines the Veteran has not exhibited such symptoms. The evidence shows that the Veteran maintains the ability to perform activities of daily living, and while he prefers isolation, still maintains relationships with his mother and father. Further, the January 2011 VA examiner determined that his symptoms his PTSD adversely affects his psychosocial an occupational functioning and quality of life to a moderate degree, rather than a marked or severe degree. The January 2015 VA examiner found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, but not total impairment. The Board has considered the arguments of the Veteran and his representative that the April 2019 VA examination was inadequate as the examiner did not discuss or provide rationale as to an earlier effective date for a 100 percent rating based on the grant of SSA disability benefits effective from January 2008. However, the April 2019 VA examiner indicated a review of the Veteran's VA claims folder prior to rendering an opinion, which included the January 2012 SSA determination and findings. The Board additionally notes that SSA decisions are not binding on VA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA decisions). The Board also finds that the appropriate date for the increase to 70 percent for PTSD is July 31, 2009, as the later date between the date the claim was received by VA or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. With regard to the appeal period after August 29, 2019, the Veteran is currently in receipt of the maximum schedular disability rating of 100 percent, under his correctly assigned diagnostic code (9411), based on the symptomatology. The Board finds that extraschedular rating consideration was not raised in this case and that the evidence does not present any exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, after resolving reasonable doubt in the Veteran's favor, the Board finds his PTSD warrants a 70 percent rating from July 31, 2009 to August 29, 2019, but not higher. See 38 U.S.C. § 5017(b); 38 C.F.R. §§ 3.102, 4.3. Such determination is based on a holistic analysis of the totality of the medical and lay evidence. 2. A TDIU prior to January 5, 2015. During the course of the appeal, in a September 2019 rating decision, the RO granted a TDIU effective from January 5, 2015. The Board has jurisdiction to consider whether TDIU is warranted for an earlier period as a separate notice of disagreement (NOD) for an earlier effective date is not required if the TDIU issue is part and parcel of the rating claim on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue of a TDIU prior to January 5, 2015, is at least raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating for compensation may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and; Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Based on the above grant of an increased rating for PTSD of 70 percent since the effective date of service connection, the Veteran has met the schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) since July 31, 2009. In his June 2015 TDIU application, the Veteran listed his service-connected PTSD, and non-service related seizures as preventing him from securing or following a substantially gainful occupation. His last employment was listed as working for temporary services as a day laborer from January 2003 to January 2009. The record does not reflect the Veteran working at any point during the appeal period. The Veteran initially applied for, and was denied SSA disability benefits in 2010, despite recognition that he exhibited a low average memory, PTSD, alcohol dependence, and a personality disorder. However, in November 2011, he was examined by a psychologist in a second attempt to qualify for SSA disability. She found that the Veteran had difficulty with normal conversation, to include losing track of what had been said and frequent tangential or circumstantial thinking. She also identified impaired reality testing, delusions, and poor short-term memory, concentration, judgment, and insight. Importantly, the psychologist determined diminished mental ability with an inability to perform even routine, repetitive tasks, specifically in a competitive work environment. He was additionally found to exhibit poor ability to interact with coworkers or supervisors, poor concentration, and had an "extremely poor" prognosis to tolerate workplace stress. In January 2012, the SSA determined the Veteran disabled since January 2008, the last date he worked full-time. VA examinations to evaluate the Veteran's level of functioning in relation to his PTSD, were conducted in January 2011, January 2015, and August 2019. In January 2011, the Veteran reported that since his military discharge in October 2005, he had worked four or five months in temporary labor jobs, but was "drunk all the time," and was also fired from working in a deli when someone smelled alcohol on his breath. He had not worked since then. The examiner found the Veteran's PTSD to adversely affect his psychosocial and occupational functioning and quality of life to a moderate degree. At the January 2015 examination, it was determined that the Veteran's level of functioning was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. By the time of his April 2019 examination, he was identified as having total occupational and social impairment due to his PTSD. The Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities since at least January 2008. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this regard, the Veteran has not held substantial, gainful employment since January 2008. This determination is supported by the SSA's findings, the Veteran's statements, and the remarks of the PTSD examiners and treating medical professionals. Given the procedural history, the Board also finds that the award of a TDIU is warranted effective from July 31, 2009. The Veteran now meets the schedular criteria as of this date, and has been unable to hold substantial, gainful employment since 2008. As the date entitlement arose is more than one year prior to the date of receipt of the claim for PTSD, the appropriate effective date for TDIU is July 31, 2009, the effective date of the claim. Harper, 10 Vet. App. at 126-27; see also Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010). To the extent any earlier effective date is sought, the Board finds that a preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.