Citation Nr: 22014528 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 14-00 093 DATE: March 14, 2022 ORDER From August 12, 2013, to June 3, 2014, entitlement to an evaluation of 70 percent but not higher for service-connected posttraumatic stress disorder (PTSD) is granted, subject to the law and regulations governing the payment of monetary benefits. From August 12, 2013, entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The most probative evidence shows that from August 12, 2013, to June 3, 2014, the Veteran's symptoms manifested in occupational and social impairment with deficiencies in most areas. 2. The severity, frequency, and duration of the Veteran's symptoms do not more closely approximate total social impairment. 3. From August 12, 2013, the Veteran's service-connected disability is of such severity as to preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From August 12, 2013, to June 3, 2014, the criteria for entitlement to an evaluation of 70 percent but not higher for service-connected PTSD stress disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1, 4.3, 4.7, 4.20, 4.126-4.130, DC 9411. 2. From August 12, 2013, the criteria for a schedular TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to May 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' appeals (Board) from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran timely appealed the decision. In April 2019 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. In August 2020, the Board denied the Veteran's appeal of the denial of his claim for entitlement to a rating in excess of 50 percent from August 12, 2013, to June 3, 2014, and in excess of 70 percent from June 4, 2014, for PTSD. The Veteran appealed that part of the Board's decision that denied entitlement to a rating in excess of 50 percent from August 12, 2013, to June 3, 2014, to United States Court of Appeals for Veterans Claims (the Court). The Veteran did not appeal the Board's denial of a rating in excess of 70 percent from June 4, 2014, for PTSD. In a May 2021 Order, the Court endorsed a Joint Motion for Partial Remand executed by the attorney representing the Veteran and VA's office of General Counsel, which order vacated that part of the Board's August 2020 decision that denied entitlement to a rating in excess of 50 percent for PTSD from August 12, 2013, to June 3, 2014, and remanded the issue back to the Board. 1. Entitlement to an evaluation in excess of 50 percent from August 12, 2013, to June 3, 2014, for service-connected PTSD Increased rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, the Board must consider the medical evidence since the effective date of the award of service connection, and the appropriateness of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here 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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. The Veteran's service-connected psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted for 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 ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows 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; and/or memory loss for names of close relatives, his or her own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. 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. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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." Id, at 442. In adjudicating a claim for a higher 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. Analysis In the parties' joint motion for partial remand, the parties agreed that the Board erred by failing to provide an adequate statement of reasons or bases when it denied a rating in excess of 50 percent for the period from August 12, 2013, to June 3, 2014, for service-connected PTSD. In its decision, the Board explained that "[w]hile the Veteran reported bouts of anger, the evidence does not show that the Veteran had totally lost impulse control" and concluded that his symptomatology does not warrant a 70 percent rating due to mood disturbances. The parties agreed that the Board erred when finding that the Veteran's symptomatology does not warrant a 70 percent rating for this period due to mood disturbances by imposing an incorrect standard whereby the Board required total loss of impulse control, which is not required under the applicable regulation. Tucker v. West, 11 Vet. App. 369 (1998). Turing to the evidence, an August 2013 psychosocial assessment noted that at that time, the Veteran was homeless and was staying with his daughter off and on. The Veteran was in a nine-year relationship described by both the Veteran and his girlfriend as a normal, healthy and happy relationship. He was arrested for domestic violence in 2007 after throwing a lottery ticket at his girlfriend, was released without bond and was given 3 community service days. No protection order issued. He has two daughters with whom he reports a great relationship and a son with whom he has a relationship with "when we are around each other." He has a 20 year old grandson and a teenage granddaughter with whom he reports a good relationship. He reported worshiping regularly in church, has friends for over 40 years, and that his church family is a network for support. The records note that the Veteran and his girlfriend moved into more permanent housing through VASH. An August 2013 psychology outpatient note indicated that the Veteran endorsed mood swings, bad dreams, poor relationships, substance abuse issues, poor anger management, and impatience. He indicated that he "doesn't like to go out to eat because he can't tolerate people." Minor annoyance leads to major eruptions. He becomes flustered by having to make snap decisions about things or being rushed. He is not comfortable around others because he is concerned that someone might tick him off. He is nervous in crowds. He reported 4-5 nightmares per month that are combat related. He drinks to help suppress intrusive thoughts and to avoid dreaming. He related shame that he has been physically abusive to women in past relationships. He indicated that his relationships with family have been poor. He became tearful when talking about mistreatment from returning from Vietnam and expressed anger at the lack of services/treatment. The psychologist noted the Veteran's mood as dysphoric; affect somewhat restricted and congruent with mood; his thought content was a bit tangential. He denied hallucinations, suicidal ideation and homicidal ideation. The Veteran acknowledged he has been blaming the military for his challenges but expressed a desire to take ownership of moving forward and that he is accessing treatment resources. A September 2013 social worker note indicates that the Veteran reported, "I'm happier than I have been" and he feels more at peace with himself. He also stated that "I don't get angry as often and "I'm slower to anger." However, he also admitted to having "moments of madness" that he vents by "screaming and yelling" at himself or his girlfriend. The Veteran was afforded a VA examination in September 2013. The Veteran reported he was living with one of his children but was "technically homeless." Symptoms noted included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; and difficulty in being able to establish and maintain effective work and social relationships. The examiner found that the Veteran's symptoms caused occupational and social impairment with reduced reliability and productivity. The examiner also found that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Persistent symptoms were noted as difficulty falling or staying asleep; irritability or outbursts of anger; exaggerated startle response. The examiner remarked that the Veteran has a history of poor adjustment post deployment to Vietnam. At the April 2019 hearing, the Veteran testified to current and past events and symptoms. He indicated that "he doesn't sleep well and he has dreams and sometimes he does not want to go to sleep." On the 4th of July he stays in the house because when he hears firecrackers it brings memories of mortars going around, shells going off and "it's a bad situation." He stated that he tries not to be as hostile toward people but it doesn't always work. He described it as "because all of us that have been in any kind of conflict or whatever, you got these things packed back and you got a big old lock on a pressure thing. You're trying to keep them in." Sometimes "all hell breaks loose." "And we try to keep from going to that point." "You have to get away from around the damn screwed-up situations, the screwed-up people you be around. That brings back things that you've been trying to suppress, you know?" The Veteran indicated that he finds it difficult to work with other people and to deal with other people and because of his symptoms he tends to isolate because he doesn't want to engage in conflict or arguments. He stated that he had one job that he liked, as a painter, where he was basically by himself. However, he stated "I get mad at myself sometimes with them when I was painting. I mean, you know, if I paint and it didn't go like I wanted it to go, you know, I think like a lot of people do, it should be no problem in whatever work you do and maybe I don't deal with problems as good as I should, you know?" He stated that he gets upset and begins to "become unraveled." He stated that his PTSD symptoms interfered with his ability to sustain employment. He indicated that he doesn't make friends easily. The Veteran indicated that his symptoms are very severe and were just as severe prior to 2014 as thereafter. When determining the appropriate disability evaluation, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact a particular Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In adjudicating a claim for a higher rating, all symptoms of a claimant's service-connected mental disorder that affect the level of occupational or social impairment must be considered. The symptoms enumerated under the schedule for rating 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 disability rating. The focus of an increased rating analysis is on the severity of the symptoms and the level of impairment to occupational and social function rather than how many of the listed symptoms the veteran exhibits. The use of the term "such as" in the rating criteria demonstrates that the symptoms 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. 38 C.F.R. §§ 3.321, 4.2, 4.2, 4.10; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board need not find most, or even some, of the enumerated symptoms are present to award a specific rating. A Veteran may meet the criteria for a given disability rating by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Here, upon further review of the evidence of record, the Board finds that the Veteran's service-connected PTSD manifested in symptoms from August 12, 2013, to June 3, 2014, that are not contemplated by a 50 percent disability rating and that his symptoms most closely approximate a 70 percent rating, causing occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. The Board further finds that evidence, including the social worker reports and psychological reports, the VA examination, and the Veteran's testimony and statements indicate symptoms of impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including in work or work like settings); speech, intermittently illogical, obscure, or irrelevant; and an inability to establish and maintain effective relationships. The evidence shows that the Veteran has a history of impaired impulse control with past incidents of violence and consistent unprovoked irritability. He stated that minor annoyance leads to major eruptions and admitted that he physically abused women in the past. The Veteran related that during "moments of madness" he vents by "screaming and yelling" at himself or his girlfriend. The VA examiner noted irritability and outbursts of anger. The Veteran testified that "sometimes all hell breaks loose." The Board notes that there is no mention of violent thoughts or behavior or unprovoked irritability in the criteria for a 50 percent rating and that this symptom is reflected throughout the record. In addition, the Veteran describes continuous efforts to avoid unprovoked irritability so as to avoid violence. His testimony and statements indicate that the Veteran spends a great deal of time and thought thinking about and actively avoiding circumstances with a potential for conflict. In that respect, the Board finds that his impaired impulse control impacts his everyday routine activities and has led to self-isolating. This symptom impacts not only the Veteran's mood but his thinking. As to other symptoms, the Veteran's tangential speech is intermittently illogical, obscure, or irrelevant when he communicates his thoughts and his ongoing efforts to avoid conflict. The Veteran's difficulty in adapting to stressful circumstances (including work or a work like setting) is apparent in his description of symptoms he experienced while working in past jobs in which his unprovoked irritability caused problems. In addition, his description of prior jobs indicates an inability to establish and maintain effective relationships with others in a work environment. The Board has considered a 100 percent rating for PTSD, noting that the evidence of record supports a finding of total occupational impairment due to such symptoms as gross impairment in thought processes or communication and intermittent inability to perform activities of daily living. In addition, a January 2014 VR&E assessment notes that the Veteran has a serious employment handicap and the Veteran's service-connected PTSD contributes in substantial part to the vocational impairment and the Veteran has not overcome the effects of the impairment through further education, transferable skills or being able to obtain and maintain suitable work. However, the evidence does not show total social impairment so as to meet the criteria for a 100 percent disability rating. The Veteran related good relationships with his children and was staying with his daughter during this time period before finding permanent housing through VASH. He had a long term girlfriend with whom he resided during the relevant time period and each expressed that their relationship was good. He reestablished permanent housing for himself and his girlfriend. Additionally, he has support through his church and has friends there. Entitlement to a total disability rating based on individual unemployability (TDIU) A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry in a TDIU claim 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). In determining whether unemployability exists for TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a Veteran to prevail on a claim for a TDIU, the sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A request for TDIU is not a separate claim for benefits, but it is instead an attempt to obtain an appropriate rating for a disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board notes that as of this decision, based on the 70 percent rating for PTSD, the schedular criteria of 38 C.F.R. § 4.16 (a) are met from August 12, 2013. In addition, although a higher evaluation exists, the Veteran did not appeal that part of the Board's prior decision that assigned a 70 percent rating from June 4, 2014, to the Court of Appeals for Veterans Claims. As the schedular criteria are met, the remaining issue is whether the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court interpreted the phrase substantially gainful employment to include an economic component and a non-economic component. The economic component is defined as occupations earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce for one person. The Court, in addressing the noneconomic component of the ability to secure and follow that type of employment held that attention must be given to: the veteran's history, education, skill and training, and whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required to the occupation at issue. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, and auditory and visual limitations, and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate ability and productivity. As noted above, the Board has found that the most probative evidence shows they Veteran's symptoms have caused total occupational impairment. Specifically, the January 2014 VR&E assessment notes that the Veteran has a serious employment handicap, that his service-connected PTSD contributes in substantial part to the vocational impairment and the Veteran has not overcome the effects of the impairment through further education, transferable skills or being able to obtain and maintain suitable work. A June 2014 vocational assessment competed by a vocational rehabilitation counselor states that it is not reasonably feasible for the Veteran to achieve a vocational objective due to service-connected and non-service-connected disabilities. Also, he has an extensive legal history, is 67 years old, and has not worked in the last 10 to 15 years. He lacks current job skills. He also has a lengthy history of substance abuse. The report stated that due to his vocational limitations, lack of recent work history and job skills, age, and legal history it is unlikely that he will be able to benefit from additional training or be able to obtain employment. While this evidence indicates a finding of unemployability, such is based on factors that are not to be considered in the evaluation of a TDIU, including age and any impairment caused by nonservice-connected disabilities. The Veteran's age or impairment caused by nonservice-connected disabilities are not considered in this analysis. 38 C.F.R. §§ 3.341, 4.16, 4.19. During the August 2019 hearing, the Veteran testified that he finds it difficult wo work with other people and to deal with other people. He stated that he tries not to be as hostile toward people but it doesn't always work. He described this as "because all of us that have been in any kind of conflict or whatever, you got these things packed back and you got a big old lock on a pressure thing. You're trying to keep them in." Sometimes "all hell breaks loose." "And we try to keep from going to that point." "You have to get away from around the damn screwed-up situations, the screwed-up people you be around. That brings back things that you've been trying to suppress, you know?" The Veteran further indicated that he finds it difficult to work with other people and to deal with other people and because of his symptoms he tends to isolate because he doesn't want to engage in conflict or arguments. He stated that he had one job that he liked, as a painter, where he was basically by himself. However, he stated "I get mad at myself sometimes with them when I was painting. I mean, you know, if I paint and it didn't go like I wanted it to go, you know, I think like a lot of people do, it should be no problem in whatever work you do and maybe I don't deal with problems as good as I should, you know?" He stated that he gets upset and begins to "become unraveled." "Even when somebody else is doing something and I'm doing it with them, then that -- that really becomes a problem, you know? He stated that his PTSD symptoms interfere with his ability to sustain employment. The Veteran submitted a private vocational assessment submitted in December 2021. The assessor indicates that the Veteran last performed substantially gainful employment in 2002. The assessor opined that "In my professional opinion, it is more likely than not that [the Veteran] has been precluded from securing and following substantially gainful employment, to include unskilled sedentary employment due to his service-connected posttraumatic stress disorder since at least August 2013 and continuing to the present." While acknowledging that other factors may impact the Veteran's unemployability, the Board finds that his service-connected PTSD alone, without consideration of his nonservice connected-disabilities, is of sufficient severity to cause an inability to maintain substantially gainful employment. As to the economic component, the Board has considered the Veteran's history, and limited education, skills, and training, and notes that he has been unable to maintain gainful employment during the course of the appeal period. As to the noneconomic component, the Board finds that the evidence shows the Veteran does not have the mental ability to perform the activities that would be required to obtain or maintain gainful employment as the Veteran's PTSD symptoms cause substantial limitations regarding concentration and his ability to adapt to change, to handle workplace stress, to get along with coworkers, and to demonstrate reliability and productivity. Providing all reasonable doubt in the Veteran's favor, the Board therefore finds that a TDIU is warranted due to his service-connected PTSD. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102, 4.3. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.