Citation Nr: 22010231 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 20-20 580 DATE: February 22, 2022 ORDER Entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. At no point during the appeal did the Veteran's PTSD symptoms result in total occupational and social impairment. 2. The Veteran's service-connected disabilities have prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5013, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1993 to August 1996 and from August 1997 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2021. A transcript of the hearing is of record. 1. Entitlement to a disability rating in excess of 70 percent for PTSD The Veteran contends that his PTSD warrants a disability rating in excess of 70 percent. 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 for that rating. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's service-connected PTSD is rated as 70 percent disabling under VA's General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under such formula, a 70 percent evaluation is warranted where there is 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; 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. In an October 2018 private examination for the Veteran's PTSD, Dr. F.N. opined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported symptoms including depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function; chronic sleep impairment; flattened affect; impaired judgment; gross impairment in thought process or communication; 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 worklike setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; impaired impulse control; suicidal ideation; grossly inappropriate behavior; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran reported getting married in 2003 and divorcing in 2018. The Veteran stated that his part was due to his anger, social isolation, withdrawal, and reduced libido. The Veteran stated that he has three children and that they live close, so he shared them with their mother, his ex-wife. He has not joined any civilian civic organizations or military Veterans clubs. He reported that he avoids crowds of all types including concerts, plays, lectures, and sporting events not related to his kids. The Veteran was oriented times four. He spoke clearly with anger but kept it appropriate. He also spoke clearly with no delusions, tangents, stuttering or reaching or words. The Veteran had a VA examination for his PTSD in January 2019. The Veteran exhibited symptoms including depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. The Veteran stated that he has 3 children, and that he was married in 2003 and then divorced in 2018. The Veteran reported that he has some work friends, but he does not socialize with anyone outside of his home or workplace. Additionally, the Veteran reported that when he goes into public places like a restaurant, he has significant anxiety and irritability around others. The Veteran stated that his "kids are my mission" and his children make up his entire social support system. The Veteran reported that he was unable to be promoted at work on several occasions because he has anger outbursts and conflicts. He further stated that his boss tried to terminate him, and he is currently trying to switch jobs because of all of the turmoil with his administration. The Veteran was oriented times four. He appeared to be his stated age and wore appropriate attire for the occasion. The Veteran's mood appeared to be neutral with congruent, blunted affect. His cognitive and memory capabilities were intact, and his speech was coherent. No psychotic processes were detected. The examiner noted that rapport was somewhat guarded throughout the evaluation. In an April 2020 statement, the Veteran stated that he is desperately trying to "balance being a zombie with no desire of anything at all to being so on the edge, hoping not to fall off, of being destructive to my children's relationship around me when my paranoia and extreme anger issues arise". The Veteran further stated that he cannot "progress in any job roles to better my family because of my numerous discipline issues at work with supervisors and the public and have not been promoted in over 20 years of service due to my PTSD". The Veteran stated that he only feels comfortable and relaxed when he is alone, and that he constantly declines group events and invites to prevent any issues. In a June 2020 statement, the Veteran stated that he had an issue at work where coworkers complained about smell issues related to personal hygiene. The Veteran stated that he later realized that he had not taken a shower in over a week. VA treatment records from November 2020 noted that the Veteran admitted to suicidal ideation, with a specific plan. However, the Veteran further stated that unloaded guns and ammunition are now locked in safe and cites children and desire for mental health treatment as protective factors. VA treatment records from May 2021 note that the Veteran was alert and oriented to person, place, and time. The Veteran exhibited adequate hygiene and dress, and normal psychomotor function. His eye contact was good, and his attitude was forthcoming, frustrated, friendly, and engaged. His thought process was organized, goal-directed, and future-oriented. The Veteran did not exhibit suicidal or homicidal ideation, and there was no evidence of delusions, thought blocking, or ideas of reference. There was no evidence of audio or visual hallucinations. His recent and remote memory was good. The Veteran's insight and judgment were good. In an August 2021 statement, the Veteran's ex-wife stated that the Veteran struggles with PTSD every day. She stated that the Veteran does not feel comfortable in crowded places and has difficulty sleeping. She further stated that his children have often been the only thing that stop him from getting into fights with people. At the October 2021 Board hearing, the Veteran testified that he has security rituals such as checking the door and constantly checking to see if someone is outside or around the house. The Veteran further testified that he has had several incidents where he has been driving over 100 miles per hour in afternoon traffic. Additionally, the Veteran reported getting into fights with neighbors and even slashing people's tires. The Veteran testified that his children became his "rock" and why he sought treatment. The Veteran reported that he is in a new relationship but noted that it is still a "challenge", noting that he will occasionally "snap" and that he "can't control it". The Veteran reported that his new partner helps him with paying his bills. The Veteran denied experiencing hallucinations or delusions. To warrant the assignment of a higher 100 percent rating, the Veteran's PTSD must manifest in symptoms causing total occupational and social impairment. While the Veteran's PTSD has caused severe impairment, the persuasive evidence of record is against a finding that his PTSD caused total impairment. Although the Veteran reported a strained relationship with his ex-wife, a relationship with his family does exit. Specifically, the Veteran has stated that that his kids are his "mission" and that his children make up his entire social support system. Furthermore, while the Veteran has reported that he is social isolated, he has described having "some work friends" and being in a current romantic relationship. Additionally, there is also no evidence in the record showing that his service-connected PTSD has manifested in those symptoms typically associated with total social and occupational impairment, such as persistent delusions or hallucinations; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name, or other symptoms on par with the level of severity contemplated by those symptoms. Id. Specifically, the Veteran's medical records consistently note that the Veteran has been oriented to person, time, and place. While he has one noted instance of not keeping up with his hygiene, regular treatment notes show this is not an on-going issue. In short, the Veteran's severity and frequency of his symptoms are not on par with the total rating criteria. In short, the Veteran's PTSD symptoms cause occupational and social impairment in most areas, as contemplated by the 70 percent rating currently assigned. For these reasons, the benefit sought on appeal is denied. 2. Entitlement to a TDIU The Veteran claims he is entitled to a TDIU, asserting his service-connected disabilities make him unemployable. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the Veteran testified that he is not currently regularly working. The Veteran stated that he is self-employed, but that he has not had a job since January. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. See id. As such, the Board concludes that the matter is appropriately before the Board and may be adjudicated herein. See id. The ultimate determination in a claim for a TDIU is not whether a veteran is unemployed or has difficulty finding employment, but rather, whether he is capable of performing the acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total (100 percent) disability ratings will be assigned "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a). TDIU may be assigned to a veteran who is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities," provided that he has received a disability rating of 60 percent or greater, or if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40 percent, and the combined disability rating for all disorders is at least 70 percent. 38 C.F.R. § 4.16(a). The Veteran is service connected for the following disabilities, with the following ratings: PTSD at 70 percent from September 15, 2018; tinnitus at 10 percent from April 21, 2017; and right and left ear hearing loss rated as noncompensable. The Veteran has a combined disability rating of 70 percent from September 15, 2018. Thus, the Veteran meets the threshold criteria for a TDIU. In an October 2018 private examination for the Veteran's PTSD, Dr. F.N. opined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran indicated that he has had three jobs since separation from service, including one that he has been doing for the previous 11 years. The Veteran reported having significant conflicts at work because he "can't shut up" when people make stupid mistakes, which has cost him promotions. He also stated that he has a side-business, making storage boxes for explosives or law enforcement agencies. The Veteran stated that he has a bachelor's degree in criminal social studies. He further stated that, while in school, he sat in the back corner in classrooms, and felt distressed by the naivete of other students and professors. He also reported having problems with concentration due to hypervigilance, and that it took him six years to get the degree due to that poor concentration. Dr. F.N. noted that while the Veteran is employed full-time, "his PTSD symptoms produce extra stress for him and everyone around him". The Veteran had an examination for his PTSD in January 2019. The Veteran stated that he currently works for the city since 2011. He described his job responsibilities as fixing anything that needs to be fixed in the city. He explained that he works by himself, which is good for him, and that he has significant conflicts when he has to work with others. The Veteran further reported that he was unable to be promoted on several occasions because he has anger outbursts and conflicts. He also stated that his boss tried to terminate him, and he is currently trying to switch jobs because of all of the turmoil with his administration. In a June 2020 statement, the Veteran stated that he had an issue at work where coworkers complained about smell issues related to personal hygiene. The Veteran stated that this made him very angry that "someone had said something" and he began thinking about who made the complaint. The Veteran stated that he "eventually narrowed it down and got into a huge argument with them until I was told to move my gear to a different place". The Veteran stated that he later calmed back down and realized that he had not taken a shower in over a week and that he did in fact smell. Additionally, the Veteran stated that he has completely isolated himself to a small area, and that he has had numerous issues with fellow employees and supervisors to the point that in 2018 he was removed from all his extra pay options, removed from various internal specialties, and even had limited access to parts of the building that he previously had access to. The Veteran stated that he has been working the same job for 20 years without a promotion and has no chance of finding another position due to his discipline record and issues with his supervisors. In an August 2021 statement, the Veteran's ex-wife stated that the Veteran's PTSD affects his job. She specifically stated that he does not get along with his supervisors. At the October 2021 Board hearing, the Veteran testified that he has not worked since January. He testified that he is self-employed, selling some stuff online. He further testified that he has tried to get another job but has had difficulty. The Veteran testified that from 2000 when he first started, all the way until 2021 when he was terminated, he was at the same level, and that he never had promotions or moved up like the rest of his peers. Given the totality of the record, the Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities renders him unemployable. He has poor social skills and difficulty concentrating. The Veteran has a history of difficulty with working with others and has specifically exhibited impaired impulse control and outbursts of anger regarding coworkers while employed. Furthermore, The Veteran's mental disorder symptoms of poor sleep, poor hygiene, and impaired judgment compound his difficulties concentrating and interacting with others. Although the Veteran is well educated and likely possesses transferable skills from his past work, his limited ability to concentrate and work well with others has rendered him unable to successfully secure and maintain substantially gainful employment. In short, the Board finds that the Veteran's service-connected disabilities render him unemployable. Because the Veteran is unemployable, he is entitled to a TDIU. Thus, the claim is granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.