Citation Nr: 22016276 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-66 651 DATE: March 21, 2022 ORDER A 70 percent initial rating, and no higher, for posttraumatic stress disorder (PTSD) is granted throughout the appeal period. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted throughout the appeal period. FINDINGS OF FACT 1. The Board resolves all doubt in the Veteran's favor by finding that his PTSD was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, throughout the appeal period. 2. The Board resolves reasonable doubt in the Veteran's favor by finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, and no higher, for PTSD have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU due to service-connected disabilities have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to March 1968, to include service in the Republic of Vietnam. His medals include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter in December 2019 for additional development. 1. Entitlement to an initial rating higher than 50 percent for PTSD Service connection for PTSD was established in the April 2014 rating decision that is the subject of this appeal and assigned a 50 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective May 8, 2013 (date of claim). The Veteran seeks a higher rating for PTSD, asserting in essence that his PTSD symptoms are more severe and disabling than reflected in the current rating. He testified that his symptoms include uncontrolled anger and outbursts; constant depression; social withdrawal and isolation from others; issues with authority; limited to no social interactions; irritability; excessive alcohol use; inability to interact with others; and inability to maintain employment, such that he has changed jobs on average two to three times a year over a 30 year span. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted when there is objective evidence demonstrating 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting others; 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 name. Id. 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." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126(b). After considering the evidence and resolving all doubt in favor of the Veteran, the Board finds that a 70 percent rating is warranted for PTSD throughout the appeal period, as the Veteran's symptoms have more nearly approximate occupational and social impairment with deficiencies in most areas. This decision is based on evidence of symptoms that include impaired impulse control (unprovoked irritability with periods of violence), as evidenced by reports of uncontrolled anger and physical outbursts towards others, described as throwing objects at others, road rage and "wanting to strangle others;" an inability to establish and maintain effective relationships or adapt to stressful circumstances, evidenced by strong negative attitudes towards authorities, distrust of others, an inability to listen to others and follow instructions, getting easily irritated and frustrated, having worked 40 different jobs during a 30 year span, having limited social interactions and difficulty getting along with extended family; and disturbance in mood and motivation, evidenced by anhedonia, hypervigilance, hyperarousal, intrusive thoughts, sleep disturbances, problems with concentration and use of alcohol to avoid memories of traumatic events and daily life. Moreover, a September 2016 statement from a VA psychiatrist noted personal isolation, hypervigilance, difficulty with authority and difficulty working in a group setting. A May 2019 VA treating psychiatrist indicated the Veteran's PTSD symptoms cause chronic difficulty with employment and cause him to struggle to maintain employment in environments that require constant supervision. A May 2019 vocational assessment by a private consultant noted anger outbursts; increased irritability; fits of rage when things do not go his way; inability to be around loud crowds due to anxiety and hypervigilance; self-isolation; paranoia; and racing thoughts, which impact the Veteran's ability to maintain jobs because he is unable to deal with authority and interact with co-workers, supervisors and the public for prolonged periods of time. However, the Board finds that a rating higher than 70 percent for PTSD is not warranted at any time during the appeal period, as the weight of the evidence does not more nearly approximate total social and occupational impairment. Indeed, the Veteran does not contend that his PTSD results in total social and occupational impairment; rather, during the appeal, he has sought a 70 percent rating. See, e.g., June 2015 notice of disagreement and May 2019 correspondence. More specifically, although the evidence shows the Veteran isolates and has limitations in the area of social interaction and adaptability, it also shows he reportedly enjoys spending time with his grandchildren, whom he saw regularly before relocating and currently continues to see occasionally, including during holidays and when he drives to visit them. He also has been able to attend VA group therapy; has been married for over 50 years; and enjoys some activities, such as fishing and woodworking. In addition, there is no evidence that the Veteran has or had gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; suicidal ideation; 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 name. Rather, VA examiners in March 2014, February 2015 and January 2020 indicated the Veteran arrived early or on time for the appointment. He was appropriately dressed and groomed; cooperative; maintained good eye contact; oriented to time, place and person; speech and communication were goal directed and logical; affect was appropriate; thought process was coherent and goal-directed; and there was no evidence of hallucinations, delusions, homicidal ideation, impaired judgement, or defects in cognition, memory or insight. All three VA examiners indicated the Veteran is capable of managing his own financial affairs. In addition, VA treatment records throughout the appeal period show the Veteran was consistently well-groomed with good hygiene; oriented to time, place and person; speech was within normal limits with normal rate and volume; thought process was logical, sequential and relevant; thought content and perception were normal; insight and judgment were fair or good; and the Veteran denied suicidal or homicidal ideations, hallucinations and perceptual disturbances. The Veteran consistently reported he could perform activities of daily living independently. See April 2014, October 2015, November 2016, March 2017, July 2018, December 2018 and December 2019 VA treatment records. The Veteran's wife testified that she has not witnessed delusions or abnormal speech. In sum, after resolving reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence supports a 70 percent rating, but no higher, for PTSD throughout the appeal period. 2. Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry 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 arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall 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). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is 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. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is service-connected for PTSD; prostate cancer; and erectile dysfunction associated with prostate cancer. He meets the schedular criteria for entitlement to a TDIU during the entire appeal period. In VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) received in November 2014, the Veteran reported that PTSD and prostate cancer prevent him from securing or following substantially gainful employment; he last worked as a stationery engineer; completed high school; and had no further education or training. During the Board hearing, the Veteran clarified that he last worked full time in 2010, not 2014 as noted on Form 21-8940. A July 2014 employment form completed by a prior supervisor indicates the Veteran ended employment due to long-term disability and last worked in August 2010 as a boiler operator. The March 2014 and February 2015 VA PTSD examiners summarized the Veteran's level of occupational and social impairment as that consistent with a 30 percent rating under the diagnostic criteria, while the January 2020 VA examiner indicated occupational and social impairment consistent with a 50 percent rating. The February 2015 VA examiner indicated the Veteran's overall level of functioning had declined within the past year, evidenced by being more withdrawn, irritable and less tolerant around others, but that people within the Veteran's range of functionality have been able to obtain and maintain employment. The January 2020 VA examiner commented that the Veteran's PTSD affects his ability to function in an occupational environment in that the Veteran's insomnia had worsened over the past few years and he had an increase in intrusive thoughts and hypervigilance; a very strong negative attitude towards authority which directly impacts his ability to work; and that these issues, when taken together, increase the Veteran's occupational and social impairments. A March 2014 VA prostate cancer examiner indicated that the service-connected prostate cancer did not functionally impact the Veteran's ability to work; however, he noted voiding dysfunction of mild urine leakage, especially after lifting and coughing, that requires a change in absorbent material less than 2 times per day and causes increased urinary frequency of daytime voiding intervals between 1 and 2 hours. A February 2015 VA prostate cancer examiner indicated the prostate cancer functionally impacted the Veteran's ability to work, described as urinary incontinence when doing any heavy lifting, and that voiding dysfunction causes leakage requiring a change in absorbent material 2 to 4 times per day and causes increased urinary frequency of daytime voiding intervals between 1 and 2 hours. A January 2019 VA psychiatrist opined that the Veteran's PTSD symptoms more likely than not contribute to the Veteran's chronic difficulty with employment and has caused him to struggle to maintain employment in environments which require supervision. In a May 2019 letter, a private vocational specialist opined that the Veteran is more likely than not unable to secure and follow substantially gainful employment throughout the appeal period due to his PTSD and prostate cancer. She reasoned that the Veteran would be unable to follow very basic requirements of employment, including an inability to sustain focus and attention for at least 2 hours at a time throughout the workday; take breaks only as scheduled and stay at his workstation; attend work on a regular schedule without unscheduled absences and tardiness; and produce a certain, minimal amount of work. She indicated that the Veteran is rendered unemployable, as his PTSD has caused him to struggle to interact with his co-workers and supervisors throughout his career and there is no competitive work that can be done in isolation, and his prostate cancer renders him unable to satisfy industry standards of pace, productivity and reliability due to frequency of urination and disruptions throughout the day. She opined that the service-connected disabilities preclude even sedentary employment because the Veteran is unable to be a reliable and productive employee and because his prostate cancer further precludes him from satisfying the exertional requirements required for sedentary employment. Thus, when considering the above evidence and after resolving all doubt in favor of the Veteran, the Board finds the weight of the evidence shows that the service-connected PTSD and prostate cancer, when considered together, as likely as not render the Veteran unable to maintain gainful employment consistent with his education and occupational experience. However, the Board does not find that the Veteran is unemployable due solely to PTSD. While the VA examiners and clinicians noted his PTSD symptoms have an impact on employment, none has suggested those symptoms render him unable to obtain or maintain employment. Moreover, the private vocational consultant noted the Veteran was unemployable due to the combination of his service-connected PTSD and prostate cancer residuals, not solely as a result of PTSD symptomatology. In sum, the weight of the evidence supports entitlement to a TDIU based on the combined effects of service-connected disabilities for the period on appeal is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.