Citation Nr: 21040999 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-32 965 DATE: July 7, 2021 ORDER Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total compensable disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, effective March 18, 2014. FINDINGS OF FACT 1. The preponderance of evidence shows that the Veteran's PTSD does not cause total social and occupational impairment. 2. The evidence of record demonstrates that the Veteran is unable to secure or follow substantially gainful employment due to the combined effects of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1968, to include service in the Republic of Vietnam. His medals include the Combat Infantryman Badge. These matters come before the Board of Veterans Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in November 2014 and June 2015. The November 2014 rating decision granted service connection for PTSD and assigned a 70 percent rating, effective March 18, 2014. The June 2015 rating decision continued the 70 percent rating for PTSD and denied entitlement to a TDIU. In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to a rating higher than 70 percent for PTSD Service connection for PTSD (previously rated as anxiety disorder) was established in the March 2014 rating decision that is the subject of this appeal and assigned a 70 percent rating under 38 U.S.C. § 4.130, Diagnostic Code 9411, effective March 18, 2014 (the date of claim). The RO continued the 70 percent rating in June 2015 and April 2017 decisions. The issue in this appeal is whether the Veteran's PTSD symptoms cause total occupational and social impairment during the appeal period, such that the maximum 100 percent rating is warranted. After reviewing the record, the Board finds that the preponderance of evidence is against assigning a disability rating higher than 70 for PTSD at any point during the appeal period. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted when 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 symptoms such 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 inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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, own occupation or name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall 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. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126(b). During the July 2020 Board hearing, the Veteran testified that his PTSD symptoms include trouble sleeping, nervousness, anxiety, sweating, recurrent dreams, and daytime fatigue and panic attacks that occur while sleeping. He stated he does not experience depression, has not had legal problems or issues with violence since filing his claim in 2014, had attended PTSD classes, and was prescribed medication but did not continue it as it worsened his sleep problems. He stated he currently lives with several individuals and has a close friend who lives nearby. The medical evidence in the record consists of VA examinations in July 2014, March 2015 and September 2016; a May 2017 private mental health assessment submitted by the Veteran; and VA treatment records. The record shows the Veteran is diagnosed with PTSD, as noted by the July 2014, March 2015 and September 2016 VA examiners, which the July 2014 VA examiner noted is a correction of the previously diagnosed anxiety disorder. The most probative evidence indicates that the severity, frequency, and duration of the Veteran's psychiatric symptomatology do not produce total occupational and social impairment, such that a 100 percent disability rating is warranted. The Veteran's level of impairment caused by his PTSD were characterized by the July 2014 VA examiner as causing occupational and social impairment with reduced reliability and productivity. The March 2015 and September 2016 VA examiners each characterized the level of impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. None of the VA examiners characterized the symptoms as productive of total occupational and social impairment. The medical evidence shows the Veteran's PTSD is currently manifested by symptoms of depression, anxiety, chronic sleep impairment, flattened affect, disturbances of mood and motivation, hypervigilance, irritability, and difficulty adapting to work and adapting to stressful circumstances, including work or a work-like setting, as noted by the July 2014, March 2015 and September 2016 VA examiners and the May 2017 private examiner. The July 2014 VA examiner observed that the Veteran's mood was angry and affect was irritable, noting that the Veteran reported he is irritable and angry much of the time, has road rage, startles easily, naps in the daytime in order to get more sleep due to being awake for half of the night with nightmares and night sweating, avoids interacting with people and does not like crowds due to his hypervigilance. The September 2016 VA examiner indicated the Veteran's mood was angry with irritated affect. While the July 2014 VA examiner noted panic attacks that occur weekly or less often and the May 2017 private examiner indicated panic attacks, the March 2015 and September 2016 VA examiners noted the Veteran did not have panic attacks, and the Veteran testified during the July 2020 Board hearing that he does not have panic attacks except when sleeping. The Board finds that the severity, frequency, and duration of these symptoms results in no worse than occupational and social impairment with deficiencies in most areas. The medical evidence does not demonstrate gross impairment of thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or inability to function independently. While the May 2017 private examiner indicated the Veteran's affect was blunted and mood was inappropriate for the content of thought and conversation, he also indicated the Veteran was alert and cooperative, speech was normal, language was linear and coherent although tangential and circumstantial at times, and the Veteran was oriented to time, person, place and situation. Additionally, the record shows the Veteran was alert and oriented during VA treatment in March 2015, May 2015, May 2016, September 2016, January 2017, July 2017, November 2017, April 2018, June 2018, September 2018, February 2019, and November 2020. Further, a July 2017 psychosocial assessment noted the Veteran was alert and oriented and showed normal affect and behavior appropriate for the situation. Additionally, the evidence does not demonstrate memory loss for names of close relatives, own occupation, or own name. The July 2014 VA examiner indicated there was no memory impairment; the March 2015 and September 2016 VA examiners noted short-term and long-term memory impairment, such as forgetting recent events, forgetting directions and forgetting to complete tasks but not memory loss for names of close relatives, own occupation or own name; the May 2017 private evaluator noted short-term and long-term memory impairment; and the Veteran denied memory loss during VA treatment in May 2016, December 2016, October 2017 and August 2018. The Board acknowledges that persistent danger of hurting self or others was noted by the July 2014 VA examiner and that the Veteran reported a history of thoughts of harming others during the July 2014 and September 2016 VA examinations. However, the Veteran also reported during the July 2014 and September 2016 VA examinations that he would not act to harm himself or another person; the March 2015 VA examiner did not find evidence of persistent danger of hurting self or others or suicidal ideation; and the September 2016 VA examiner noted that the Veteran denied past or present suicidal ideation, plan and intent and none were evidenced during the assessment. Also, the May 2017 private examiner noted that, while the Veteran reported having thoughts of self-harm, he had no present suicidal plan or intent. The record further does not show evidence of persistent delusions or hallucinations, as noted by the three VA examiners and the May 2017 private examiner. In fact, the September 2016 VA examiner noted that the Veteran denied any auditory and visual hallucinations and none were present during the assessment; the July 2014, March 2015 and September 2016 VA examiners indicated there was no impaired impulse control, such as unprovoked irritability with periods of violence; and the May 2017 private examiner indicated no evidence of delusional thought processes, auditory or visual hallucinations, or present homicidal ideation or intent. Also, the Veteran denied hallucinations during July 2017 VA treatment and VA medical screens for suicidal or violent ideation were negative in October 2014, November 2014, May 2016, December 2016, June 2017, October 2017 and April 2018. Ultimately, it is the impact on functioning that results from the symptomatology that dictates the evaluation to be assigned. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) ("[38 U.S.C.] § 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"). Thus, the Board does not find that the thoughts of harming others espoused by the Veteran in July 2014 and September 2016 has affected his overall functioning, so as to support a finding of total occupational and social impairment. Further, the preponderance of evidence does not demonstrate that the Veteran is intermittently unable to perform activities of daily living. The July 2014 VA examiner observed the Veteran was well-groomed and neatly dressed and was able to answer the questions posed and was cooperative, despite appearing agitated with some questions. Although the September 2016 VA examiner noted intermittent inability to perform activities of daily living and stated the Veteran was unshaved and had visible paint stains on his shoes, the examiner also observed that the Veteran arrived on time for his scheduled appointment, remained seated throughout the interview and was cooperative. Further, all three VA examiners found the Veteran was capable of managing his financial affairs. Thus, the Veteran's listed and unlisted symptoms more closely approximate the symptoms consistent with a 70 percent rating. See 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. Accordingly, a rating in excess of 70 percent is not warranted, and the Veteran's claim for a higher rating for PTSD is denied. In reaching this decision, the Board has reviewed and considered the Veteran's reported symptoms. While the Veteran is competent to report observable symptoms, the Board finds that the medical evidence in this case, as discussed above, does not show that his PTSD symptoms reflect total occupational and social impairment. The Board concludes that the medical evidence is more probative as to the level of impairment than the lay statements. The Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to a TDIU due to service-connected disabilities VA will grant a TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. In reaching such a determination, 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). A total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. The Veteran is service-connected for PTSD, rated as 70 percent from March 18, 2014 (previously rated as anxiety disorder, rated as 30 percent prior to March 18, 2014); diabetes mellitus type II with neuropathy, rated as 20 percent from July 28, 2010; diabetic peripheral vascular disease of the bilateral lower extremities, each rated as 20 percent disabling from May 9, 2018; peripheral neuropathy of the bilateral lower extremities, each rated as 10 percent disabling from October 13, 2011; history of malaria without residual, rated as noncompensable from July 28, 2010; and erectile dysfunction and atopic dermatis, each rated as noncompensable from October 13, 2011. His combined rating is 90 percent, and the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met. On VA Form 21-8940, received in January 2015. the Veteran indicated that he last worked full time in February 2007. He testified at the July 2020 Board hearing that he last worked in 2007 and was unable to maintain gainful employment due to leg pain caused by his diabetic peripheral vascular disease and peripheral neuropathy of the bilateral lower extremities, which affect his ability to walk and perform manual labor, and due to lack of sleep caused by his PTSD, which affects his ability to concentrate and function at a desk job. The July 2014 VA examiner concluded that the Veteran is functionally impaired due to his PTSD, as his ability to function well with others is impaired due to chronic anger, difficulty sleeping, nightmares, exaggerated startle response and irritability, and continuing struggles with medical concerns, including diabetes and erectile dysfunction, which add to his negative self-esteem. While the March 2015 and September 2016 VA examiners found the Veteran is not functionally impaired due to his PTSD and can perform physical and sedentary employment, the March 2015 VA examiner also concluded the Veteran is only somewhat able to understand and follow complex instructions, has problems dealing with peers, supervisors and the public in a reasonable manner, is unable to set good persistence over an 8-hour day and a 40-hour workweek, has problems dealing with change and handling pressure and multiple tasks, has increased fatigue due to poor sleep and occasional trouble concentrating, and is unable to maintain emotional stability over an 8-hour day in situations where someone disrespects or irritates him. The September 2016 VA examiner noted the Veteran has difficulty following complex instructions, handling time pressures and multiple tasks, responding to change and handling negative feedback; has significant difficulties dealing with peers, supervisors and the public in a reasonable manner, specifically getting along with others, especially in large groups and the public; has significant difficulties being emotionally stable over an 8-hour day and setting good persistence over an 8-hour day and a 40-hour work week as he tires after 10 minutes of doing any labor work and requires multiple breaks; has moderate to mild difficulties with concentration, stamina and setting good pace and solving problems on the job because of impaired judgment; and his anger and irritation could cause problems in the area of safety hazard. While the March 2015 and September 2016 VA examiners concluded the Veteran's PTSD symptoms results in occupational and social impairment with deficiencies in most areas, a March 2015 VA examiner concluded that the Veteran's peripheral neuropathy of the bilateral lower extremities functionally impairs his ability to walk on uneven surfaces, and a January 2019 VA examiner concluded the Veteran's peripheral vascular disease of the bilateral lower extremities impacts his ability to walk more than 15 minutes without a break, climb more than infrequently and run at all. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that the preponderance of evidence demonstrates that the Veteran is unable to secure and follow a substantially gainful occupation due to the combined effects of his service-connected disabilities as of March 18, 2014. Accordingly, entitlement to a TDIU is granted effective March 18, 2014, the date of claim. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.