Citation Nr: 22010141 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 18-04 432 DATE: February 22, 2022 ORDER Entitlement to an initial 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 PTSD is manifested by occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9411. 2. The criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1996 to December 1998 and the Air Force from February 2000 to February 2003. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. As an initial matter, the Board notes that relevant VA treatment records and a VA examination were added to the claims file since the December 2017 statement of the case. Generally, the Board may not consider evidence not previously reviewed by the AOJ unless a waiver of initial AOJ review is obtained from the veteran. Disabled Am. Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304 (c). As the Veteran, through his representative, waived initial consideration of this evidence by the AOJ, the Board may proceed with adjudication. See January 2022 BVA Letter. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) The Veteran contends his PTSD is worse than indicated by his current 50 percent rating. The Veteran is currently rated under Diagnostic Code 9411 for PTSD with secondary major depression and alcohol use disorder. Under DC 9411, a 70 percent rating for PTSD contemplates 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 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 disability rating is warranted for PTSD resulting in 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran underwent a VA examination in July 2016. The VA examiner noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation as a result of symptoms of depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Veteran underwent another VA examination in September 2017. The VA examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity from symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation or mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran underwent another VA examination in December 2018. The VA examiner noted that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood as a result of chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a work like setting; neglect of personal appearance and hygiene. The Veteran's mother and ex-wife both submitted lay statements indicating the Veteran experienced symptoms of isolation, avoidance of crowds, avoidance of loud noises, and impaired impulse control (such as unprovoked irritability with periods of violence). Based on a review of the evidence of record the Board finds that a 70 percent rating, but no higher, is warranted for the entire period on appeal. The Board finds that based on the level of impairment indicated by the December 2018 VA examiner, the symptom of neglect to personal appearance or hygiene, and the lay statements of the Veteran's mother and ex-wife indicating he experiences impaired impulse control, more nearly approximate the frequency, severity, and duration of the symptoms warranting a 70 percent rating. The Veteran is not entitled to a 100 percent rating for his PTSD because none of the evidence including the VA treatment records, lay statements, or VA examinations note he experiences total occupational and social impairment as a result of symptoms such 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. Therefore, entitlement to an initial rating of 70 percent, but no higher, for PTSD is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The issue of TDIU has been raised by the record as part of the Veteran's claim for an increased rating for his service-connected PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In order to be entitled to a TDIU, the evidence must show that the Veteran is incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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 either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). Employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." Here, service connection is currently in effect for: PTSD, evaluated as 70 percent disabling; Acne scarring of the face, evaluated as 30 percent disabling; Right wrist disability, evaluated as 10 percent disabling; and Right foot fracture, evaluated as 0 percent disabling. Therefore, the Veteran qualifies for a schedular TDIU. The Veteran has a high school diploma. After service the Veteran worked as a police officer for 9 years. Following that he worked as a supervisor for a janitorial service, but he had to leave this job because he was missing too many days due to his PTSD symptoms. After that he worked as an inventory specialist until 2018. The Veteran's service-connected wrist disability limit his gripping, grasping, carrying, pulling, pushing, and lifting such that he can only perform these functions with light to moderate forces, at a pace of greater than low frequency of such motions, over a short to moderate duration of time. See September 2019 VA Examination. A December 2018 VA examiner noted that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood as a result of his service-connected PTSD. Based on the foregoing, the Board finds that the Veteran is entitled to a TDIU. The competent medical and lay evidence establishes that, given the Veteran's education, training and experience, his service-connected disabilities precluded him from obtaining and retaining substantially gainful employment. Affording the Veteran the benefit of the doubt, he is entitled to a TDIU. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Boyd, 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.