Citation Nr: 21032473 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-29 154 DATE: May 27, 2021 ORDER Entitlement to increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran's service-connected PTSD more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, judgement, thinking, and mood. 2. For the entire rating period on appeal, the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent for service-connected PTSD, but not higher, have been met for the entire rating period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38C.F.R. §§4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020) 2. The criteria for entitlement to a TDIU have been met for the entire rating period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Army from February 1980 to March 1992. The matter comes before the Board of Veterans' Appeals (Board) upon appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) granting entitlement to service connection for PTSD and assigned a 50 percent rating. The Veteran's claim for entitlement to a TDIU rating was denied in a September 2014 rating decision. The Board denied the Veteran's claims in a February 2019 decision, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court vacated the February 2019 decision in a Joint Motion for Remand because the Board did not consider all the favorable evidence relevant to both claims. In a May 2020 decision, the Board again denied the Veteran's claims for an increased rating for his service-connected PTSD and for entitlement to a TDIU rating. The Veteran appealed the Board's decision to the Court. The Court vacated the May 2020 via a Joint Motion for Remand noting that the Board failed to consider all relevant evidence of record, including the report of a Vocational Rehabilitation Counselor. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to increased rating in excess of 50 percent for posttraumatic stress disorder The Veteran is in receipt of a 50 percent disability rating for PTSD under Diagnostic Code 9411 for the entire initial rating period on appeal. Under, DC 9411, 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. 38 C.F.R. § 4.130. A 70 percent disability 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The Board finds that, for the entire rating period on appeal, the Veteran's PTSD more nearly approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. His symptoms do not more nearly approximate a 100 percent disability evaluation as the Board finds that his symptoms were not so severe or frequent so as to result in total social and occupational impairment. The Veteran underwent VA mental disorders examination in May 2014 where the Veteran was described as divorced, living in the attic of the home of his elderly mother and sister. He stated he did not have much of a social life no, but did attend church and had been dating a woman. The Veteran's work for the hospital janitorial staff in the emergency room (ER) caused the Veteran to experience increased trauma because blood brought back war memories. The Veteran exhibited symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbance in motivation or mood. The Veteran's memory was intact, and speech and behavior were assessed as normal. His mood ranged from euthymic to mildly dysphoric, without the presence of delusions or hallucinations. Additionally, the Veteran denied experiencing panic attacks, obsessive rituals, excessive anger, and irritability, and suicidal or homicidal ideation. The main symptoms exhibited were anxiety and hypervigilance as the Veteran is on guard and watchful, and he prefers being at home where he feels safe. Nightmares were present up to twice per week, and he suffered issues with sleep but did not experience issues with impulse control of concentration as a result. VA treatment records reflect April through June 2015 mental health clinic follow-up notes indicate that the Veteran was re-experiencing trauma with nightmares 3 to 4 times a week; intrusive thoughts, avoidance of crowds, hyperarousal, hypervigilance, and paranoia with a restricted affect was apparent. At that interview the Veteran denied suicidal or homicidal ideation or hallucinations. The Veteran declined increased dosages of his medications. In April 2016, he discussed poor sleep with nightmares that wake him up. He acknowledged low energy level, lack of motivation and drive and fair attention and concentration. His mental status examination reflects that he was appropriately groomed, hypervigilant with fair eye contact, anxious mood, with linear and logical thought processes. In May 2017, the Veteran became irate because of appointment scheduling issue and was hostile and agitated for most of the appointment. He demonstrated antisocial personality traits, impulsivity, and irritability and aggressiveness. In both September and November 2017, the Veteran became upset and paranoid towards his provider and abruptly walked out on his appointment. The Veteran's history includes Gulf War service, a court martial in service, 16 years in prison on a drug charge post service. In 2018, the treatment notes reflect that the Veteran had experienced sporadic auditory hallucinations and was given a trial on a new medication. He continued to suffer from chronic, moderately severe and disabling symptoms of PTSD including hypervigilance, paranoia, being easily startled, lack of sleep, lack of trust and anger, with irritability. Intermittently the veteran had periods when he went without sleep for over 48 hours. During a VA mental health examination in May 2018, the examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran remarried in 2015 and was working in a warehouse for his wife's cleaning company a few hours each week split up over two to three days. He exhibited symptoms of a depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, disturbance in motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran exhibited no memory deficits, and appropriate speech, and judgment. In a December 2019 mental health visit the Veteran's mood was dysthymic, his affect was anxious his psychomotor activity was mildly elevated although the thought processes appeared logical and insight was fair with good judgment. The Veteran was afforded a third VA examination for PTSD in September 2019. The Veteran was working 1 hour per day three times a week at 5 am and one hours 3 times a week at 9 pm for his wife's cleaning company. The Veteran indicated that he maintains contact with his 92-year old mother and 70-year-old sister and helps them when he can. He has verbal contact with his son and daughter occasionally. He has no friends that visit him or that he visits and is always anxious and tense and rechecks locks during the day. He occasionally enjoys taking a scenic drive and playing with his dog on the deck. The Veteran indicated that he is always anxious and tense and the sight of blood, diesel fuel smell, floodlights and news about current wars incites intrusive memories. The Board finds that for the entire rating period on appeal that the Veteran's PTSD more nearly approximates the criteria for a 70 percent rating. The Veteran suffers from disturbance of motivation and mood, has obsessional rituals, sleep impairment, impaired impulse control, almost weekly panic attacks, and difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Accordingly, the Board finds that an increased disability rating to 70 percent is warranted for the entire period on appeal. TDIU A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16 (a) (2019). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran's ability or inability to engage in substantial gainful activity, must be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "Substantially gainful" employment is employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the occupation in the community where the veteran resides. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16 (a); see also Moore, 1 Vet. App. at 358 ("The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment."). In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2019); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). When there is an approximate balance of positive and negative 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 (b) (2012). Entitlement to a TDIU rating The Board finds that the Veteran has met the schedular criteria for a TDIU at all times relevant to the appeal period. The Veteran has a combined 70 percent disability rating with a 50 percent rating for PTSD effective August 26, 2010; sciatica of the left lower extremity at 20 percent, lumbar muscle strain at 20 percent, and tinnitus at 10 percent. For the reasons outlined below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disabilities preclude his ability to follow a substantially gainful occupation. On March 2020 a certified rehabilitation counselor prepared a vocational assessment on the Veteran. The Veteran is a high school graduate without higher education or skilled trade certifications. The counselor noted that the Veteran isolates daily and needs to avoid being in public as he is paranoid and always on guard, even in his own home. Although married, the Veteran lives alone in the attic of his mother's house because it feels safer. He becomes irritated over small things such as the way dishes are placed on a table. During the interview, the Veteran became agitated, used profanity, and had to be deescalated and redirected. The Veteran is unable to be around his grandchildren as they make loud noise when playing. He endorsed panic attacks with increased heart rate and shortness of breath several days a month that last up to an hour. The Veteran's last full-time job ended in 2012 as a housekeeper for a local hospital. He worked only at night-time as he could not interact with coworkers or others in the hospital. He was absent approximately three times a month due to lack of motivation, racing thoughts and hypervigilance. This excessive absenteeism was accommodated by a supervisor sympathetic to his veteran status but with new management he received a written warning for excessive absenteeism and resigned before being terminated. Prior to the hospital, he worked for his wife's cleaning business being paid for 15 hours a week. Tasks that routinely took others 40 minutes to complete took him three hours due to his racing thoughts, severe hypervigilance, and paranoia. The counselor offered his vocational opinion that the work that the Veteran performed after August 2010 was not substantially gainful employment as it was performed in a sheltered or sheltered-like environment, where his unreasonably slow pace and absenteeism was accommodated. It was the counselor's vocational opinion there was no field of unskilled labor employment in which the Veteran could work in absolute isolation required by the Veteran's inability to interact appropriately with others due to irritability and angry outbursts. and his pace would not be tolerated by employers in competitive employment. In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38C.F.R. §4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10, but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2). The Board also observes that the Veteran's current employment at approximately 6 hours per week is not substantially gainful employment. See Moore, 1 Vet. App. at 358. (Continued on the next page) Accordingly, the Board finds that based on the Veteran's level of education and prior vocational experience, his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.