Citation Nr: 22017378 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-32 958 DATE: March 24, 2022 ORDER Prior to August 2, 2019, entitlement to a 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD) is granted. From August 2, 2019, entitlement to a rating in excess of 70 percent PTSD is denied. From January 17, 2018, a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From January 17, 2018, the severity, frequency, and duration of the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas. 2. Total occupational and social impairment has not been found during the appeal period. 3. From January 17, 2018, the Veteran's service-connected psychiatric disorder has precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From January 17, 2018, but no earlier, the criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9411. 2. From January 17, 2018, a rating in excess of 70 percent for PTSD has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9411. 3. From January 17, 2018, but no earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to May 1968. The case is on appeal from a September 2018 rating decision. The Board notes a subsequent rating decision was issued in October 2019, granting an increased rating from 50 percent to 70 percent from August 2, 2019, and awarding a TDIU from August 2, 2019. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Veteran provided testimony at a November 2021 hearing before the undersigned. 1. A rating in excess of 50 percent prior to August 2, 2019, and in excess of 70 percent thereafter for PTSD. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's psychiatric disorder has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9410. A 50 percent evaluation is warranted where there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Background and Facts The Veteran is seeking an increased rating for his service-connected PTSD. He filed this claim in January 2018 and contends the assigned 50 percent rating does not reflect the severity of his PTSD symptoms. In an October 2019 rating decision, the RO increased the PTSD rating to 70 percent effective August 2, 2019. The Veteran underwent a VA examination in March 2018. The examiner noted diagnoses including PTSD and unspecified insomnia disorder. She commented that the Veteran has moderate to serious difficulty in social and emotional functioning but has some meaningful interpersonal relationships. The examiner noted that the Veteran's diagnoses were independent of each other, but the symptoms that comprise each disorder were similar and overlap significantly. With regard to occupational and social impairment, the examiner determined the Veteran has occupational and social impairment with reduced reliability and productivity. Concerning the Veteran's relevant social and family history, he reported experiencing moderate social and family stressors and occupational limitations since his last evaluation 2007. He stated he and his wife divorced, and his "mood, withdrawn behavior, and anger contributed to the unsuccessful marriage." He also stated he has a good relationship with his adult daughter, and his three grandsons, but has a distant relationship with his adult son. The Veteran reported he has a good relationship with his six living siblings, and he maintains a few friendships. He reported further he enjoys watching sports and fishing but does not engage in many activities "for fun anymore." The Veteran reported he lives alone. Concerning his occupational history, the Veteran reported he retired from the Police Department in 1994 and later worked as a private investigator but stopped working in 2010 or 2011. With regard to his mental health history, the Veteran reported he continues to struggle with PTSD symptoms, including reoccurring intruding recollections related to his deployments to Vietnam, sleep disturbance, anger, avoidance, hypervigilance, startle response, and flashbacks. The examiner noted he also reported depression symptoms including depressed mood, social isolation, lack of motivation, fatigue, irritability, crying spells, and decreased sexual interest and performance. The examiner noted the Veteran also had difficulties concentrating and focusing and he experiences anxiety symptoms including restlessness, muscle tension, difficulty relaxing, and suspiciousness. She noted the Veteran reported being short tempered and gets easily frustrated with little provocation. Concerning the Veteran's sleep impairment, he reported he experienced insomnia since 1968, which has become increasingly worse. He reported he sleeps for about three to four hours per night, and experiences continuous awakenings, restlessness, and nightmares five to six nights per month. The examiner also noted the Veteran has difficulty initiating and maintaining sleep, and the difficulty occurs at least three nights per week. Due to insomnia, the examiner noted the Veteran experiences fatigue and sluggishness, mood problems, and concentration difficulties which contribute to significant distress in cognitive, social, and occupational areas of functioning. The examiner also noted the Veteran denied suicidal and homicidal ideations; panic attacks; self-injury; past psychiatric hospitalizations; and auditory, tactile, and visual hallucinations. Concerning symptoms associated with PTSD diagnostic criteria, the examiner noted the presence of intrusion symptoms (Criterion B) to include recurrent, involuntary and intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s); and dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. The examiner noted presence of avoidance symptoms (Criterion C) including avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); and avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s). In regard to negative alterations in cognitions and mood (Criterion D), the examiner noted the Veteran experiences persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame), and markedly diminished interest or participation in significant activities). In regard to marked alterations in arousal and reactivity (Criterion E), the examiner noted the Veteran experiences hypervigilance; exaggerated startle response; problems with concentration; and sleep disturbance. The examiner indicated that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Concerning symptoms for VA rating purposes, the examiner indicated the Veteran experiences depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. With regard to behavioral observations, the examiner commented that the Veteran's attire and grooming were appropriate; he was alert and oriented to person, place, and time; he was cooperative, tearful at times and showed appropriate eye contact; and his speech was normal and affect appropriate to content. The Veteran underwent an additional VA examination in October 2019. At that time, the examiner determined the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. Regarding his relevant social and family history, the Veteran reported he divorced his wife of 42 years in 2012, although they were separated for 14 years prior to the divorce. The Veteran reported he has two adult children and stated his relationship with his daughter is "fine" and his relationship with his son is "not good at all." With regard to his occupational history, the Veteran reported stopped working in 2010 or 2011 due to experiencing dizziness. With regard to his mental health history, the Veteran reported he was not currently in any treatment for PTSD but thinks he should be treated because the nightmares and lack of sleep are worsening. Concerning symptoms associated with PTSD diagnostic criteria, the examiner noted the presence of intrusion symptoms (Criterion B) to include recurrent, involuntary and intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s); intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); and marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic events. The examiner noted presence of avoidance symptoms (Criterion C) including avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); and avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s). In regard to negative alterations in cognitions and mood (Criterion D), the examiner noted the Veteran experiences persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others; markedly diminished interest or participation in significant activities); and feelings of detachment or estrangement from others. In regard to marked alterations in arousal and reactivity (Criterion E), the examiner noted the Veteran experiences irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; and sleep disturbance. The examiner indicated that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Concerning symptoms for VA rating purposes, the examiner indicated the Veteran experiences depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; 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. With regard to behavioral observations, the examiner commented that the Veteran denied suicidal ideation, intent, or plan, and that he was fearful of dying. The examiner also provided additional commentary regarding the Veteran's PTSD symptoms as they relate to memories of his service in Vietnam. She also stated the Veteran reported that three to four times per year he experiences episodes of increased heart rate, tingling in his extremities and feeling short of breath, and that during these episodes he went to the emergency room thinking he was having a heart attack, although no physical cause was found. He believes that during these episodes he was experiencing a panic attack. In November 2021, the Veteran provided testimony concerning his symptoms at a Board hearing. The Veteran stated he experiences sleeplessness, insomnia, depressed mood, and anxiety. He stated that his depression affects his relationships, and he is socially withdrawn and isolated. He also stated that his sleep impairment interferes with motivation because he feels tired. The Veteran testified that when he is reminded of Vietnam, he can experience crying spells. He also reported difficulty with his memory and concentration. The Veteran also described experiencing panic attacks and stated that he constantly checks the locks on the windows and doors at his home. Regarding the duration of such symptoms, the Veteran asserted that his symptoms had not worsened over the appellate period but had stayed the same since filing his claim. The evidence of record also includes VA treatment records. These records reflect that the Veteran initiated treatment for his PTSD symptoms in March 2017 and underwent therapy from March 2017 until July 2017. The specific details of VA treatment records will be discussed in more detail as they pertain to the analysis below. Analysis After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's PTSD, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds an earlier increased rating is warranted. During the course of the appeal, the RO increased the rating for the Veteran's PTSD from 50 percent to 70 percent effective August 2, 2019, based on the date the Veteran's application for a TDIU was received. However, after reviewing all of the evidence, the Board finds that the evidence supports that an earlier increased rating to 70 percent is warranted as of January 1, 2018, the date the Veteran filed his claim for an increased rating for his PTSD. However, the Board finds the criteria for a 100 percent rating is not supported at any point during the appellate period. See Vazquez-Claudio, 713 F.3d at 117; Bankhead, 29 Vet. App. at 22. With regard to the rating period prior to August 2, 2019, the Board finds the evidence of record reflects that the Veteran's PTSD approximates occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating. In this regard, the evidence of record reflects that the Veteran exhibited symptoms consistent with the 70 percent rating criteria prior to August 2, 2019, including obsessional rituals that interfere with routine activities, as the Veteran reported that he stated that he constantly checks the locks on the windows and doors at his home at the November 2021 Board hearing. The evidence of record shows that the Veteran also exhibited PTSD symptoms similar to the 70 percent criteria symptom of "near continuous panic or depression" including a persistent negative emotional state and markedly diminished interest or participation in significant activities as noted in the March 2018 VA examination report. The Board acknowledges that the examiner who provided the March 2018 VA examination determined that the Veteran had occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating during this time. However, the Board notes the Veteran testified to experiencing symptoms consistent with a 70 percent rating throughout the appellate period and the severity of his symptom did not worsen during this time. The Board finds the Veteran's statements regarding his symptom frequency and severity credible in this regard. Thus, the Board finds that the October 2019 VA examiner's determination that the Veteran's symptoms approximated occupational and social impairment, with deficiencies in most areas, consistent with a 70 percent rating, did not indicate that the Veteran's symptoms worsened during the appellate period, but instead confirmed that the Veteran's symptoms severity warranted a 70 percent rating during the entire period on appeal. While an increased rating to 70 percent is warranted prior to August 2, 2019, a further increase to 100 percent for total occupational and social impairment is not warranted at any time during the appeal period. The Board acknowledges the severity of the Veteran's PTSD symptoms depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; 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. However, the evidence does not support that his PTSD causes total occupational and social impairment. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a "persistent" threat of danger to others, "gross impairment in thought processes or communication," not knowing one's own name, the names of close relatives, or one's occupation, and an inability to perform activities of daily living, including maintenance of even minimal personal hygiene. The Board determines the Veteran has not exhibited such symptoms. These symptoms are consistently absent throughout the appellate period as VA treatment records show that the Veteran was always oriented to time, place, situation, and person; and he consistently denied suicidal and homicidal ideation. The Board finds the Veteran has not exhibited such symptoms. In regard to the effective date of the increased 70 percent rating, the Veteran filed a claim for an increased rating for his PTSD on January 17, 2018, which begins the period of appellate review before the Board (plus the consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). However, the evidence of record does not reveal a factually ascertainable date on which an increase in severity of the condition occurred within the one year look back period prior to the filing of the claim. In sum, the Board finds that prior to August 2, 2019, an increased PTSD rating to 70 percent is supported, but a rating in excess of 70 percent is not supported during the appeal period. See 38 U.S.C. § 5017(b); 38 C.F.R. §§ 3.102, 4.3. The benefit of the doubt has been afforded to the Veteran in awarding the increased rating to 70 percent prior to August 2, 2019, and the evidence is persuasively against a rating in excess of 70 percent during the appeal period. 2. A TDIU prior to August 2, 2019. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; 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 by 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, as well as 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 work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Facts and Analysis Initially, the Board notes the issue of entitlement to a TDIU is part and parcel of the increased rating claim associated with the Veteran's PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As the TDIU claim arose under Rice, the issue of entitlement to a TDIU from January 17, 2018 (the date the Veteran filed a claim for an increased rating) is before the Board. In addition to the evidence of record pertaining the severity of the Veteran's PTSD described above, the evidence of record also includes the Veteran's August 2019 TDIU claim form. The Veteran asserted that his PTSD prevented him from securing or following substantially gainful employment. The Veteran reported the date his disability affected his full-time employment was January 2, 2012, and the date he last worked full time and the date he became too disabled to work was January 1, 2012. With regard to employment history, the Veteran reported he was employed as a U.S. Investigator, where his highest gross earnings per month were $7, 750. The Veteran reported that he completed one year of college, and underwent training and education associated with law enforcement, criminal justice, and homicide investigation. The Veteran stated that he was unable to continue working due to his PTSD because the stress caused from interacting with others made him feel dizzy and lightheaded. He also stated that he was so stressed from working with people as a detective, it was difficult to stand for long periods of time due to the dizziness. The evidence of record also includes an October 2019 VA opinion concerning the effect of the Veteran's PTSD on his ability to function in an occupational environment. Overall, the examiner found the Veteran's abilities in many areas of occupational functioning varied from moderate to markedly impairment. In this regard, Veteran's she determined the Veteran's ability to understand and follow instructions is considered moderately impaired. His ability to retain instructions and sustain concentration to perform simple tasks is considered moderately to markedly impaired. His ability to sustain concentration to task persistence and pace is considered moderately to markedly impaired. His ability to respond appropriately to coworkers, supervisors, or the public is considered markedly impaired. His ability to accept supervision is considered markedly impaired. His ability to accept criticism is considered markedly impaired. His ability to be flexible in the work setting is considered markedly impaired. His ability to work in groups is considered markedly impaired. His ability for impulse control in the work setting is considered markedly impaired. The Veteran testified at the November 2021 Board hearing concerning his occupational impairment. In this regard, he stated he last worked in 2012 and he stopped working due to anxiety attacks. He also stated his sleep impairment interfered with his motivation and concentration. Applying the evidence of record to the Ray factors, concerning the Veteran's history, education, and training, the evidence of record reflects that the Veteran has a work history and training in law enforcement and as an investigator. Concerning whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue, the Board notes the Veteran is not service connected for any other disabilities aside from PTSD, thus, any physical limitations are not for consideration. With regard to whether the Veteran has the mental ability to perform the activities required by the occupation at issue, the Board finds that the symptoms of the Veteran's PTSD limit his ability to work. In this regard, the evidence of record reflects that Veteran's PTSD symptoms include depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships. See October 2019 VA examination report. In addition, the examiner who provided the October 2019 opinion concerning the Veteran's ability to function in an occupational environment determined the Veteran's abilities concerning occupational functioning varied from moderate to markedly impairment. This evidence makes it unlikely that the Veteran would be able to perform the functional requirements of any substantially gainful employment. Any type of job would require some degree of minimal social interactions, the ability to concentrate, and regular attendance. Thus, due to his PTSD symptoms, he would unlikely be able to secure or follow more than marginal employment consistent with his background, training, and education at any job, whether sedentary or physical, which would require a degree of mental functioning to carry out the job functions that has been outside the Veteran's capacity. In addition, the Board notes that Veteran also meets the schedular requirements for a TDIU from January 17, 2018. From that date, the Veteran's service-connected PTSD is rated 70 percent disabling. As such, he meets the schedular requirement for a TDIU under 38 C.F.R. § 4.16(a). Accordingly, when reasonable doubt is resolved in favor of the Veteran, the Board finds that, from January 17, 2018, the Veteran was no longer employed, and his service-connected disability picture prevented him from securing or following a substantially gainful occupation consistent with his educational and occupational background. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, effective January 17, 2018, a TDIU is warranted. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.