Citation Nr: 22012304 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-16 124 DATE: March 3, 2022 ORDER An initial rating of 70 percent for posttraumatic stress disorder (PTSD) from September 21, 2013, to October 9, 2017, is granted. A rating of more than 70 percent for PTSD from October 10, 2017, to July 8, 2018, is denied. A rating of 100 percent for PTSD since July 9, 2018, is granted. A total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. From September 21, 2013, to July 8, 2018, the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas. Since July 9, 2018, the Veteran's PTSD caused total occupational and social impairment. 2. The Veteran was employed full-time through July 8, 2018. Since July 9, 2018, he is in receipt of a 100 percent schedular rating for PTSD and there is no evidence that his service-connected prostate cancer residuals and left upper extremity sensory neuropathy status-post pinky finger laceration alone prevented him from securing or following a substantially gainful occupation since that date. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent from September 21, 2013, to October 9, 2017, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a rating of more than 70 percent from October 10, 2017, to July 8, 2018, for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a rating of 100 percent since July 9, 2018, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.130, Diagnostic Code 9411. 4. The criteria for TDIU have not been met at any time since September 21, 2013. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from October 1964 to October 1968. He served in the Republic of Vietnam. In April 2021, the Veteran was afforded a virtual hearing before the undersigned Veterans Law Judge. 1. Entitlement to an initial rating of more than 50 percent from September 21, 2013, to October 9, 2017, and 70 percent since October 10, 2017, for PTSD. Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A 70 percent rating for PTSD requires 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, 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 an inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an 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 own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Where, as here, the issue involves the assignment of an initial rating for a disability following the award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). A July 2014 private psychological evaluation states that the Veteran had been married to his second spouse since 1975 and had two children and four grandchildren. He and his spouse had a satisfactory marriage but were not close. He had a good relationship with his children and grandchildren. He had purchased a store and been in retail sales for 29 years. He drank alcohol every evening, only slept 3 to 4 hours per night, repeatedly would check the locks on his house doors, had nightmares, and had an exaggerated startle response. Water and the ocean triggered flashbacks to service and caused fear; he refused to swim. He also had a fear of electricity because of service. He had suicidal ideation. He had one close friend but generally was isolated and spent free time watching television alone. He had angry outbursts, which affected his relationship with his spouse and caused several employees to quit working for him. The clinician stated that he had behaviors indicative of a workaholic, had chronic depression and anxiety, and had PTSD. An August 2014 statement from the Veteran's spouse indicated that the Veteran was constantly worried about keeping the doors and windows of their house locked, would remind her every day to do that, and would tell her he preferred that she did not leave the house. He was a light sleeper, and seemed to always be on alert, even when sleeping. He would wake up drenched in sweat from nightmares two to three times per night. She stated that when they met new people through activities, the Veteran always had to have things his way; when people moved on to other activities, he would never speak of them again. Because of this, they were not ever able to make friends, although the Veteran had a few friends from before service. He was suspicious of people. He avoided crowds and any activities where there would be a crowd and had to always be near exits and have an escape route wherever he went. She stated that he had had several bouts of depression in his life where he would stay in his room and watch old movies for months. She stated that the Veteran had bouts of alcoholism but was now able to stop drinking when needed. She reported spending her evenings alone and that the Veteran would ignore, correct, or interrupt her when she spoke. If she would try to speak up, it would cause him angry outbursts. He spent all his energy running his business, working long hours, and using work as an excuse to avoid other activities. She stated that the Veteran's difficulties had limited their life and activities, and that it had been hard for her. In September 2014, the Veteran was afforded a VA examination. He reported similar symptoms to those described above. He stated that he had one friend who lived six hours away, and who he saw twice a year. The examiner found symptoms of flashbacks, avoidance, persistent negative emotional state, hypervigilance, anxiety, and chronic sleep impairment. He had no hallucinations, delusions, or suicidal or homicidal ideation. A June 2016 letter from the Veteran's private therapist indicated symptoms of flashbacks, nightmares, avoidance, negative alterations in cognition and mood, persistent negative emotional state, markedly diminished interest or participation in significant activities, and feelings of detachment or estrangement from others. He had irritability and angry outbursts, hypervigilance, difficulty concentrating, and sleep impairment resulting in only 3 to 5 hours of sleep per night. He had fears of bodies of water, guns, and electricity. He only felt comfortable at home or at his business, which impaired his social functioning. In October 2017, the Veteran was afforded another VA examination. His symptoms were as previously described. The examiner also noted that the Veteran had cognitive processing difficulties, including impairment in short-term memory, and attention and concentration problems, and that he frequently ruminated about in service experiences. At his April 2021 Board hearing, the Veteran reported that he lost his job because his angry outbursts were causing problems with customers, so his spouse took over the business. He stated that he had no social life, and only one friend who he would speak to on the telephone. Angry outbursts affected his relationship with his grandchildren. He reported feeling demoralized. He would go out with his spouse for about an hour but then had to return home. He had to sit near a window or wall at a restaurant. He had to take anti-anxiety medication to fly to visit his daughter because of how small and confined the airplane felt. He could not go to social events. Although he lived at the beach but feared the water and avoided going in it. He stated that he had difficulty maintaining his personal hygiene; his spouse had to remind him to do things like shave. He could not tolerate things being slightly out of line and would straighten artwork at businesses or pick up a scrap of paper off the ground. He reported difficulty in his marriage and that he felt like his wife would be better off without him. On an August 2021 TDIU application form, the Veteran reported that he last worked full time in July 2018 and became too disabled to work in December 2019. He worked 20 hours per week from July 8, 2018, to December 31, 2019, but lost more than 90 days due to illness. On an August 2021 VA Form 21-4192 Request for Employment Information, the Veteran's spouse stated that the Veteran was on the business payroll at half time beginning on July 8, 2018, until the store closed in December 2019. She reported that the Veteran was paid regardless of the amount of time he worked and his ability to work. She stated that he was off from work for 90 days following a prostate cancer operation and many other days because he did not feel up to working. She wrote, "The loss of [the Veteran's] physical ability, his sales expertise, and the effect of his mental changes was a great loss and ultimately caused the closing of the store and the corporation." In December 2021, the Veteran was afforded a VA examination. His symptoms were consistent with those previously described. He had recently been prescribed medication to help with anxiety and depression. He had panic attacks that occurred weekly or less often. He had suicidal ideation. He had no hallucinations or homicidal ideation. VA treatment records throughout the period on appeal indicate the same symptoms as previously described. The Board finds that the Veteran's symptoms most closely approximate a 70 percent rating from September 21, 2013, to July 8, 2018. His symptoms most closely approximate a 100 percent rating since July 9, 2018. Although he was still on the payroll at his business on a part-time basis beginning on that date, his spouse had taken over running the business and he did not consistently work due to his PTSD symptoms. Therefore, the Board finds that he had total social and occupational impairment beginning at that time. An increased rating to 70 percent is granted from September 21, 2013, to October 9, 2017. A rating of more than 70 percent from October 10, 2017, to July 8, 2018, is denied. A 100 percent rating is granted effective July 9, 2018. 2. Entitlement to TDIU. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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. 38 C.F.R. § 4.16(a). The Veteran met the minimum schedular rating requirement for TDIU from September 21, 2013, to July 8, 2018. However, he was employed full-time during this time. Therefore, he was not unemployable and TDIU during this period is not warranted. A TDIU is not warranted since July 9, 2018, because the Veteran is in receipt of a total rating for PTSD during that time. There is also no evidence that his service-connected prostate cancer residuals and left upper extremity sensory neuropathy status-post pinky finger laceration alone prevented him from securing or following a substantially gainful occupation since that date. Therefore, TDIU is not warranted at any time and the appeal is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.