Citation Nr: 22017634 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 98-17 647A DATE: March 25, 2022 ORDER Prior to July 21, 2017, an initial rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. A rating in excess of 70 percent for PTSD is denied. An effective date of September 30, 1998 for the award of a total disability evaluation based upon individual unemployability (TDIU) is granted. REMANDED The issue of entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. The issue of entitlement to an effective date prior to September 30, 1998 for the award of a total disability evaluation based upon individual unemployability (TDIU) is remanded. THE VETERAN'S CONTENTIONS The Veteran seeks an increased rating for his service-connected PTSD. See October 2006 statement in support of claim; December 2011 Board hearing transcript. The Veteran seeks entitlement to TDIU benefits dating back to 1997. See December 2011 Board hearing transcript, p. 28. The Veteran contends that his service-connected conditions prevent him from securing or following any substantially gainful occupation. See July 2015 Veteran's Application for Increased Compensation Based on Unemployability. On the Veteran's July 2015 Veteran's Application for Increased Compensation Based on Unemployability, he reported that he last worked full time in approximately 1998. Id. He noted that, prior to that he was working as a driver, and his highest year of education completed is two years of high school. Id. He stated that his PTSD caused him to become easily frustrated, angered, and argumentative with coworkers and employers. Further, he reported that his back condition limited his mobility, and that he was only able to stand for one half hour at a time and sit for 40 minutes before he experienced pain and numbness in his legs. He reported that during his employment with Arroyo Municipal government as a driver, his condition caused him to miss three to five date of work per month due to pain and drowsiness from his medication. See July 2015 correspondence. At the December 2011 Board hearing, the Veteran's representative indicates that he seeks entitlement to TDIU benefits back to 1997. See December 2011 Board hearing transcript, p. 28. In A June 2015 affidavit, the Veteran reported that when he came back from service, he tried to work again, but was too angry. He reported that whenever his coworkers or supervisors said something to him, he would yell at them and say "don't mess with me" as he had no patience with other people. FINDINGS OF FACT 1. The Veteran's PTSD is productive of occupational and social impairment with deficiencies in most areas throughout the appeal period. Total occupational and social impairment have not been demonstrated. 2. Since September 30, 1998, the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, DC 9411. 2. Since September 30, 1998, the criteria for assignment of TDIU due to the Veteran's service-connected disability are 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 in the Army from December 1990 to September 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2006 and August 2006 rating decisions by the Agency of Original Jurisdiction (AOJ). The issues of entitlement to an initial rating in excess of 30 percent for PTSD and entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity were previously remanded by the Board in March 2007 and January 2010. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court), and pursuant to a Joint Motion for Remand (JMR), the Court issued an order in August 2010 which vacated and remanded the Board's January 2010 decision to the extent that it did not consider whether the Veteran was entitled to TDIU. The Board was directed by the JMR to consider TDIU. The JMR found that the Veteran had abandoned his claim for a rating in excess of 20 percent for a lumbosacral spine disability on an extraschedular basis. The issues of entitlement to an initial rating in excess of 30 percent for PTSD, entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity, and entitlement to TDIU were remanded by the Board in November 2010, February 2012, and November 2016. The Veteran testified at Board hearings in August 2011 and December 2011. Transcripts are of record. The Veterans Law Judge (VLJ) who conducted the August 2011 and December 2011 Board hearings has since retired. VA regulations require that the VLJ who conducts a hearing shall participate in making the final determination of the claim. In August 2021, the Veteran was notified of this requirement and offered the opportunity to request a new hearing. No response was received. Accordingly, the Board will proceed in addressing this appeal. 1. PTSD The Veteran's PTSD is currently rated 30 percent disabling from March 5, 1997 to July 20, 2017; and 70 percent disabling thereafter, under 38 C.F.R. § 4.130, DC 9411. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 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 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), inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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, memory loss for names of close relatives, own occupation or own name. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase 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 (2002). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). After review of the evidence, the Board finds that a 70 percent rating for PTSD, but no higher, is warranted throughout the pendency of this appeal. Since November 2001, the Veteran's medical records show periodic reports of suicidal ideation. See November 2001 Board hearing transcript, p. 23; May 2004 VA examination (reported suicidal ideation in the past); March 2013 private psychodiagnostics assessment report; private treatment records from Dr. A.O.R. from October 2012 through January 2016; August 2017 VA examination report. In light of the Veteran's reports of suicidal ideation, a 70 percent rating is warranted for PTSD. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Prior to November 2001, the evidence of record also shows of occupational and social impairment with deficiencies in most areas. At a February 1997 private psychiatric evaluation, Dr. N.K. determined that the Veteran had "marked impairment in social and occupational functioning." The examination report noted that the Veteran had a difficult relationship with his family; auditory hallucinations; impairment in memory, judgment, and insight; and also disoriented to time. At the April 1997 VA examination, the Veteran reported poor marital relations and irritability with his two youngest children. A December 1998 private psychiatric evaluation conducted by Dr. L.T.C. showed untidy general appearance; impairment in immediate memory; and his judgment and insight were "discredited". As such, the Board finds that a 70 percent rating for PTSD is warranted throughout the pendency of this appeal. However, the Board finds that the evidence does not support a 100 percent rating at any time during the appeal period. The Board acknowledges that the Veteran has total occupational impairment since his last day of work on September 30, 1998 and grants entitlement to TDIU effective September 30, 1998 as discussed below. However, the Board finds that total social impairment has not been demonstrated by the evidence of record. Although the Veteran reported difficulties in his relationships with his family members, he remained married throughout the appeal period. Although the February 1997 private psychiatric evaluation by Dr. N.K. notes "marked impairment in social and occupational functioning", the examiner did not find that there was total impairment in social functioning. At the April 1997 VA examination, the Veteran was adequately dressed and groomed; his responses were relevant and coherent; he was oriented to person, place, and time; his memory was adequately preserved; his intellectual functioning was average; his judgment was fair; his insight was poor; and he reported no delusions or hallucinations. At the May 2004 VA examination, the Veteran did not demonstrate any impairment in thought process or communication, delusions, hallucinations, or inappropriate behavior. The examiner noted that he was capable of maintaining activities of daily living and did not demonstrate memory loss, ritualistic behavior, or panic attacks; and was alert and oriented to all spheres. The Board acknowledges that, at the December 2011 Board hearing, the Veteran reported sadness, anxiety, crying spells, problems sleeping, nightmares, flashbacks, depression, auditory hallucinations, and anxiety attacks. See December 2011 Board hearing transcript, pp. 15-16, 18-19. He testified that he spent most of his time alone, but he did have a few friends that visited him. Id., p. 17. He stated that his PTSD affected his marriage and his relationship with his children. Id., pp. 20-21. However, the November 2012 VA examiner described the Veteran's family relations as good. The examiner noted that the Veteran was alert, coherent, relevant, logical, appropriate, oriented times three, had fair insight and judgment, his mood and affect were euthymic, there were no indications of a perceptual or thought disorder, and he seemed in good contact with reality. The August 2014 VA examination showed that the Veteran's PTSD was in remission and that his symptoms were not severe enough to interfere with his daily activities and social functioning. At the August 2017 VA examination, the Veteran reported that his wife made him feel "crispy" at times, but that their relationship was fine most of the time. He reported that his children visited him on Sundays and that he had a great relationship with them and that he attended mass on Sundays. Upon examination he was clean, alert, responsive, oriented, with appropriate affect, coherent thought process, conserved memory, and logic judgment. The March 2021 VA examination was consistent with this. In light of the Veteran's contentions and the aforementioned evidence, the Board finds that the Veteran's PTSD is productive of deficiencies in most areas and total occupational impairment throughout the appeal period. However, the Veteran's PTSD is not productive of total social impairment at any time during the appeal period. Accordingly, the Board finds that an evaluation of 70 percent, and no higher, is warranted throughout the appeal period. 3. TDIU The Veteran is in receipt of TDIU since July 21, 2017. The Board has jurisdiction over the issue of entitlement to TDIU prior to July 21, 2017 as it is part of his claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Neither a Veteran's nonservice-connected disabilities nor his or her advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are a veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). For a Veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Rather, the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Pursuant to the grant of a 70 percent rating for PTSD effective March 5, 1997 in this Board decision, the Veteran meets the schedular requirements for TDIU since March 5, 1997. A February 1997 report from private psychiatrist, N.K., and an April 1997 VA examination noted that the Veteran was working. On the Veteran's July 2015Application for Increased Compensation Based on Unemployability, he reported that he last worked full time in approximately 1998 and that prior to that he was working as a driver. See Veteran's Application for Increased Compensation Based on Unemployability. Records from the Social Security Administration (SSA) and from the Veteran's claim for workers' compensation show that the Veteran was working until September 30, 1998. A May 2004 VA examiner determined that the Veteran was not employable due to his PTSD. In March 2013 a private psychologist, C.R., determined that the Veteran had been unable to work since 1997 due to his psychiatric symptoms. The Board resolves doubt in the Veteran's favor and finds that his service-connected conditions prevent him from securing or following substantially gainful employment since at least September 30, 1998. Accordingly, an effective date of September 30, 1998 for the award of TDIU is granted. Entitlement to an effective date prior to September 30, 1998 for the award of TDIU is remanded. REASONS FOR REMAND The most recent adjudication of the issue of entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity and entitlement to TDIU prior to July 21, 2017 occurred in a March 3, 2021 Supplemental Statement of the Case (SSOC). Subsequently, on July 30, 2021, translated records were associated with the claims file, which may be relevant to the issues of entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity and entitlement to an effective date prior to September 30, 1998 for the award of TDIU. The Board sent the Veteran a waiver solicitation letter on December 14, 2021 to ascertain whether it could review this newly submitted evidence. The Board explained in the letter that if no response from the Veteran was received within 45 days, the Board would remand the appeal for consideration of the evidence by the Agency of Original Jurisdiction in the first instance. The Board has not received a response from the Veteran. As such, the issues of entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity and entitlement to an effective date prior to September 30, 1998 for the award of TDIU must be remanded to the AOJ for consideration of the additional evidence and the issuance of an SSOC. See 38 C.F.R. § 19.37. The matters are REMANDED for the following action: Readjudicate the issues of entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity and an effective date prior to September 30, 1998 for the award of a TDIU, with consideration of all additional evidence associated with the claims file after the March 3, 2021 SSOC, to include the translated records associated with the claims file on July 30, 2021. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.