Citation Nr: 22006830 Decision Date: 02/07/22 Archive Date: 02/07/22 DOCKET NO. 09-46 688 DATE: February 7, 2022 ORDER From May 21, 2008, entitlement to a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. From March 30, 2021, entitlement to a disability rating in excess of 70 percent for PTSD is denied. From May 21, 2008, entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. From May 21, 2008, the severity, frequency, and duration of the Veteran's PTSD symptoms closely approximated occupational and social impairment with deficiencies in most areas. 2. From March 30, 2021, the Veteran's PTSD has not more nearly approximated 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 or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. 3. From May 21. 2008, the Veteran's was serviced connected for PTSD at 70 percent; scars of the nose and upper lip at 10 percent; and a sebaceous cyst of the neck and back at a noncompensable disability rating, 4. From May 21, 2008, the Veteran's service-connected disabilities were of such severity as to preclude the Veteran from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, from May 21, 2008, for PTSD 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 9411. 2. The criteria for a disability rating in excess of 70 percent for PTSD from March 30, 2021 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 9411. 3. From May 2, 2008, 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 had active service from March 1966 to January 1969, and from October 1969 to March 1972. Increased Rating Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 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 when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. 1. Entitlement to a disability rating in excess of 50 percent, from May 21, 2008, for PTSD is granted. The Veteran asserts that he is entitled to an increased disability rating for his service-connected PTSD. The Board finds that, prior to March 30, 2021, the severity, frequency, and duration of the Veteran's PTSD symptoms closely approximated occupational and social impairment with deficiencies in most areas. A May 21, 2008 psychological evaluation for Social Security Administration (SSA) states that the Veteran had a "pattern of markedly diminished interest and participation in significant activities", that he had "[s]evere trouble with irritably and angry outbursts", "[c]oncentration problems were markedly apparent during the interview", that the Veteran had hypervigilance and an exaggerated startle response was reported. The Veteran reported that "he did not 'associate with anybody". Perceptual abnormalities were acknowledged. A Personality Assessment Inventory was completed, and the examiner noted that individuals with profiles similar to the Veteran's "are often experiencing marked distress and severely impaired functioning." Social functional impairment and work-related functional impairment was noted and "[s]ignificant cognitive difficulties ... were also apparent." The examiner opined that the Veteran's "[p]problems with emotional and behavioral controls ... were acknowledged and likely render [the Veteran] to be a danger to any work environment." The report of an August 2009 VA provider stated that the Veteran had extreme impairment in social interaction, extreme impairment in sustained concentration and persistence, and an extreme impairment in his estimated ability to tolerate customary work pressure. July 2010 VA treatment records state the Veteran spent "most of his time alone and "shop[ed] for groceries at 1-2am". February 2012 VA treatment records state the Veteran was "not suicidal, though the thought has occurred to him over the years," Februarly 2018 VA treatment records state the Veteran had thoughts about taking his life and he had "some suicidal ideation". The report of a January 2013 VA examination states that the Veteran's symptoms included, in part, difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene. February 2019 VA treatment records state the Veteran had "thoughts of death at times". October 2019 VA treatment records state that over the prior month the Veteran "wished[d] [he] were dead or wished [he] could go to sleep and not wake up." The Board concludes that the Veteran's symptoms were manifest by symptoms more nearly approximated by the criteria for a disability rating of 70 percent. The May 21, 2008 SSA examiner described symptoms that more nearly approximate the criteria for a 70 percent rating. The August 2009 VA provider opined of impairments that more nearly approximate the criteria for a 70 percent rating. The January 2013 VA examiner identified that the Veteran experienced multiple symptoms such as difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene. Those symptoms are specifically listed as demonstrative of a 70 percent rating. The Veteran's VA treatment records also demonstrate the presence of suicidal ideation, which is another symptom specifically listed as demonstrative of a 70 percent rating. This evidence is supportive of finding the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by the criteria for a 70 percent rating, from May 21, 2008 (prior to March 30, 2021). 2. Entitlement to a disability rating in excess of 70 percent, from March 30, 2021, for PTSD is denied. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. VA treatment records; SSA records; the August 2008, January 2013, and April 2021 VA examinations; and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating such as suicidal ideation, difficulty in adapting to stressful circumstances, neglect of personal appearance and hygiene, and suicidal ideation. However, the record does not demonstrate the symptoms associated with a 100 percent rating, and the Veteran's symptoms not specifically listed with a specific rating are not demonstrative of the criteria for a 100 percent rating. The Veteran contains evidence of suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records and the VA examiners did not identify a persistent danger of the Veteran hurting himself or others. While the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability, he was not totally socially impaired. VA treatment records show the Veteran reported being isolated, he still maintained relationships with family. February 2015 VA treatment records state the Veteran had "a few friends to have a good time with", although they "don't talk, just fish." Being able to maintain limited social relationships is not consistent with total social impairment. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. 3. Entitlement to a TDIU. The Veteran has not specifically claimed entitlement to a TDIU. The Board found in its May 2012 decision that the issue of entitlement to a TDIU had been raised by the record. The Veteran has not responded to multiple requests to provide employment information including VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). Nevertheless, the record contains sufficient information regarding the Veteran's education and work history to determine the Veteran's entitlement to a TDIU. Total ratings for compensation purposes may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to make the veteran unemployable without regard to either advancing age or the presence of any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341. Total ratings for compensation purposes are assigned where the schedular rating is less than total, 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. If there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of nonservice connected disabilities or previous unemployability status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Service connection has been established for PTSD rated as 70 percent disabling, scars of the nose and upper lip rated as 10 percent disabling, and sebaceous cyst of the neck and back rated as non-compensable. The Veteran's combined service connected rating is 70 percent. Therefore, the Veteran meets the schedular criteria for consideration for TDIU. 38 C.F.R. § 4.16(a). November 2008 VA treatment records state the Veteran retired in 2006 as a cement finisher. January 2009 VA treatment records state the Veteran was retired. In September 2009 SSA found the Veteran had not engaged in substantial gainful activity since 2006. The January 2013 VA examination report stated the Veteran last worked four to five years prior. August 2020 VA treatment records stated the Veteran retired 10 years prior from road construction. The Veteran reported to the March 2021 VA examiner that he retired as a concrete laborer. This evidence demonstrates that the Veteran has not worked during the period on appeal as he has consistently reported being retired. The Veteran has a high school education and some vocational training in welding. He has past work as a concrete laborer. (Continued on the next page) As discussed above, the May 2008 SSA examiner opined that the Veteran's symptoms likely render him to be a danger in any work environment. The August 2009 VA provider opined of extreme impairment in multiple areas that would prevent the Veteran being able to engage in substantially gainful employment. Although the Board is not bound by SSA findings, the Veteran was nevertheless found to be disabled, by SSA, due to his mental impairment. The January 2013 VA examiner opined that the Veteran's PTSD symptoms would prevent him from returning to gainful employment. The report of a March 2021 VA examination states that the Veteran would have difficulty handling supervisory feedback, his sleep problems would make it difficult getting up for work, his PTSD might make him hypervigilant, he may have to leave the worksite when stressed out, and he might have a hard time interacting appropriated. As of the instant decision, the Veteran had was serviced connected for PTSD at 70 percent; scars of the nose and upper lip at 10 percent; and a sebaceous cyst of the neck and back at a noncompensable disability rating. The record demonstrates that the Veteran has not worked since 2006. The record contains multiple opinions from competent and credible medical sources that the Veteran's PTSD results in symptoms that would prevent him from finding or maintaining any form of substantially gainful employment. Accordingly, the Board finds that the service-connected PTSD causes the Veteran to be unable to secure or follow a substantially gainful occupation. Therefore, the claim for a TDIU is granted. 38 C.F.R. § 4.16. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.