Citation Nr: 1749122	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-37 726	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) prior to March 21, 2011; higher than 50 percent from March 21, 2011, to October 15, 2012; and higher than 70 percent from October 16, 2012.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 16, 2012.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active service in the U.S. Army from February 1966 to February 1969, June 1970 to March 1973, and December 1973 to September 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for PTSD and assigned a 30 percent rating effective from October 24, 2007.  In a September 2011 rating decision, PTSD was increased to 50 percent effective from March 21, 2011.

The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2012.  The Board then remanded the matter for additional development in January 2014.  In a February 2014 rating decision, PTSD was increased to 70 percent effective from October 16, 2012, and a TDIU was also awarded from that date.

The matter was remanded by the Board again in March 2016.


FINDINGS OF FACT

1.  Prior to March 21, 2011, to October 15, 2012, PTSD was manifested by depression, anxiety, irritability, and disturbances in motivation and mood and difficulty in establishing and maintaining relationships.

2.  From October 16, 2012, PTSD was not manifested by gross impairment in thought process or communication, a persistent danger of hurting self or others, persistent delusions or hallucinations, or other symptoms of similar severity, frequency, or duration.

3.  Prior to February 28, 2011, the Veteran does not meet the schedular criteria for a TDIU, and his service-connected disabilities did not preclude him from engaging in substantially gainful employment.

4.  From February 28, 2011, to August 31, 2012, the issue of a TDIU is moot.

5.  From September 1, 2012, the Veteran meets the schedular criteria for TDIU, and his conditions would likely preclude gainful employment.


CONCLUSIONS OF LAW

1.  Prior to March 21, 2011, the criteria for an initial rating of 50 percent for PTSD have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2016).

2.  From March 21, 2011, to October 15, 2012, the criteria for an initial rating higher than 50 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2016).

3.  From October 16, 2012, the criteria for an initial rating higher than 70 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2016).

4.  Prior to February 28, 2011, the criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.16 (2016).

5.  From September 1, 2012, the criteria for a TDIU have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Increased Ratings

A.  Applicable Law

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2016).

The Veteran's PTSD is rated under Diagnostic Code 9411, which is part of the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130.  Under that formula, a 30 percent evaluation is warranted where the disorder is manifested by 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 normal conversation) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events).

A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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.

A 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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 work-like setting; and an inability to establish and maintain effective relationships.

A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name.

Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  They are not intended to constitute an exhaustive list.  Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002).  A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013).

Notably, the exact onset of the Veteran's various symptoms or disability levels cannot be determined with any certainty.  The assignment of staged ratings in this case is based upon when the evidence best demonstrates particular ratings.




	(CONTINUED ON NEXT PAGE)

B.  Evidence and Analysis

1.  Prior to March 21, 2011

Although the Veteran is currently assigned a 30 percent rating for this period, the Board finds that a higher 50 percent rating is appropriate.  VA records from January 2008 include a PTSD and depression screen in which the Veteran reported little interest, feelings of depression or hopelessness, and a sense of numbness or detachment from others.  During a June 2008 VA examination, he reported experiencing brief suicidal ideation about twice a week.  The examiner also assessed the Veteran with disturbances in motivation and mood, and difficulty in establishing and maintaining relationships.  Private records from July 2008 noted that he could get really irritable "all of a sudden" and "bark" at his wife.  An October 2008 letter from his counselor documented problems with anger and rage, as well as some suicidal ideation without plan.  Collectively, these findings support a 50 percent rating.

A higher 70 percent rating is not warranted, however.  Although suicidal ideation was documented at various times during the appeal period, it is the only manifestation of PTSD consistent with a 70 percent rating.  The documented anger and irritability was not shown to result in periods of violence.  The June 2008 VA examination noted that the Veteran continued to have regular relationships with his five brothers, seven step-grandchildren, and a friend who he visited once or twice a week.  The examiner's assessment of disturbances in motivation and mood and difficulty in establishing and maintaining relationships is also consistent with an overall level of impairment contemplated by the 50 percent rating.

2.  March 21, 2011, to October 15, 2012

During this period, a rating higher than 50 percent is not warranted.  A VA examination from March 2011 does show certain symptoms consistent with the higher 70 percent rating, specifically angry outbursts and an admission of suicidal ideation without plan or intent.  Additional records from this period show the Veteran had increased anxiety and reduced functioning following a diagnosis of lung cancer, property damage from a tornado, and the loss of his brother.  However, these symptoms have not manifested with sufficient frequency or duration to warrant a higher rating.  Private records from March 2011, August 2011, and November 2011 all document the absence of any suicidal or homicidal ideation.  Additional records from March 2011, September 2011, February, 2012, June 2012 and August 2012 all note that the Veteran's depression and/or anxiety were stable.  

Collectively, the Veteran's records from this period show ongoing anxiety, depression, sleep disturbance, and panic attacks, all of which are contemplated under the currently assigned 50 percent rating.

3.  From October 16, 2012

From October 16, 2012, a rating higher than 70 percent is not warranted.  During this period, the Veteran demonstrated various symptoms indicating significant impairment, including frequent panic attacks (November 2013 VA records), a tendency to isolate (November 2013 private records), and impaired impulse control with periods of violence (December 2013 VA examination).  However, the assigned 70 percent rating already contemplates near-continuous panic, an inability to establish relationships, and impaired impulse control.  The Veteran has not demonstrated any symptoms during this period equivalent in severity to those contemplated by the higher 100 percent rating.  Moreover, those symptoms which are present have not manifested with sufficient frequency or duration to otherwise warrant a higher rating, as shown by private records from October 2012, November 2012, and December 2013 which show the Veteran's condition to be under good control.

For these reasons, a rating higher than 70 percent from October 16, 2012, is not appropriate.

II.  TDIU

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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) (2016).

The Veteran was already assigned a TDIU effective from October 16, 2012.  Initially, the Board notes that the Veteran was granted a 100 percent rating for a right upper lobectomy as of February 28, 2011, which was reduced to 60 percent on September 1, 2012.

In addition, prior to October 16, 2012, he was service-connected for PTSD (50 percent), bilateral hearing loss (0 percent prior to June 17, 2010; 10 percent thereafter), tinnitus (10 percent), a right great toe fracture (0 percent); a right palm granuloma (0 percent).  His combined rating from these disabilities is 60 percent.  See 38 C.F.R. § 4.25.

In sum, prior to February 28, 2011, the Veteran had a combined 60 percent rating from his disabilities, and does not meet the schedular criteria for a TDIU.  From February 28, 2011, to August 31, 2012, he had a 100 percent rating for a right upper lobectomy, which combined with the separate 60 percent rating for his other disabilities, warrants special monthly compensation under 38 U.S.C.A. § 1114(s) and renders the consideration of TDIU during this period moot.  From September 1, 2012, his combined rating for all conditions is 90 percent and he meets the schedular criteria for a TDIU.

Because the Veteran has already been assigned a TDIU effective from October 16, 2012 (the day of his Board hearing), and because his 90 percent rating meets the schedular criteria for a TDIU from September 1, 2012, the Board finds that granting the TDIU from September 1, 2012, rather than October 16, 2012, is appropriate in this case.  In making this determination, the Board has been informed by the uniquely pro-claimant principles underlying the veterans' benefits system.  See Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330   (Fed. Cir. 2013); Kouvaris v. Shinseki, 22 Vet. App. 377, 381 (2009) (noting that the veterans' benefits system is a "veteran-friendly" system); see also Shinseki v. Sanders, 556 U.S. 396, 412   (2009) ("Congress has expressed special solicitude for the veterans' cause...").

However, as noted above, the Veteran does not meet the schedular criteria for a TDIU prior to February 28, 2011.  However, even when the rating percentage requirements are not met, entitlement to TDIU benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).

The central inquiry is determining whether a TDIU is warranted 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).  Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted.  See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363.

In a November 2013 VA Form 21-8940, the Veteran reported having a general equivalency diploma.  He indicated that he worked for a telephone company as a system technician from 2001 to 2006.  From 2005 through 2006, he indicated that he missed 7 to 8 months of work due to illness.  Social Security Administration (SSA) records from September 2006 document prior work for a salvage service (1990-1993), a police chief (1993-1999), and a part-time operator (1999-2001).

Private records from May 2006 show the Veteran was being treated for degenerative disc disease of the neck, including the possibility of surgery.  Records from June 2006 show the Veteran was nervous and acutely anxious, and had become depressed, anxious, and frightful over his neck condition.  Additional records show that he had quit his job and reported being unable to work anymore.  The Veteran filed for SSA benefits shortly thereafter, and indicated that his spinal condition and depression/anxiety limited his ability to work.  He also noted that tinnitus made it difficult to hear.

A June 2008 VA examination shows the Veteran reported leaving his job at the phone company due to panic attacks.  In a March 2012 statement, his wife reported that the Veteran started having panic attacks at work to the point that he soiled his pants and had to get out of the truck he was traveling in.  These attacks worsened until he quit his job.

With regards to functional impairment, the June 2008 VA examination recorded that the Veteran was able to cook dinner, do yard work, take out the trash, and work on an old car.  He used the computer and read the newspaper.  He was able to carry on his daily life in a fairly adequate manner, and was able to establish and maintain social relationships with family and a friend.  He was also able to follow simply to slightly moderately complex instructions.  A July 2010 VA examination noted that hearing loss and tinnitus would result in difficulties sleeping and communicating.

Based on this evidence, the Board finds that a TDIU is not warranted prior to February 28, 2011.  The Board acknowledges the various functional limitations identified in the evidence, as well as the Veteran's employment history.  However, the activities discussed in the June 2008 examination report indicate the Veteran is capable of performing the mental and physical acts of employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1991).  

Moreover, the assigned 60 percent rating in effect during this period, particularly the 50 percent rating for PTSD, contemplates reduced reliability and productivity, as well as difficulty in establishing and maintaining effective work relationships.  This rating also represents the average impairment in earning capacity in civil occupations resulting from his condition, and is considered adequate to compensate for considerable loss of working time.  38 C.F.R. § 4.1.  Ultimately, the Veteran does not meet the schedular criteria for a TDIU, and the evidence does not reflect some factor that takes his case "outside the norm" of any other veteran rated at the same level.  Van Hoose, supra.  Therefore, a TDIU prior to February 28, 2011, is not appropriate.


ORDER

An initial 50 percent rating for PTSD is granted prior to March 21, 2011; ratings higher than 50 percent from March 21, 2011 through October 15, 2012, and higher than 70 percent from October 16, 2012, are denied.

A TDIU is denied prior to September 1, 2012, but granted from that date.



____________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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