Citation Nr: 1749125	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  14-24 973	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for post-traumatic stress disorder (PTSD), for the period prior to July 18, 2013.

2.  Entitlement to an initial rating in excess of 50 percent for PTSD, for the period of July 18, 2013 to April 5, 2016.

3.  Entitlement to an initial rating in excess of 70 percent for PTSD, for the period beginning April 6, 2016.

4.  Entitlement to a total disability rating based on an individual unemployability (TDIU), for the period prior to April 6, 2016.


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

V-N. Pratt, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from February 1966 to January 1968.

These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2012 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

In June 2012, the RO granted the Veteran's service connection claim for PTSD at 10 percent disabling.  In an April 2014 rating decision, the RO increased the service-connected PTSD rating evaluation to 50 percent disabling, effective July 18, 2013.  

In May 2014, the Veteran submitted a form VA 8940 Application for Increased Compensation based on Unemployability (TDIU), on the basis that his service connected disability PTSD disability prevents him from securing or following any substantially gainful occupation.  Since a claim or request for TDIU is part and parcel of an increased rating claim when such a claim is raised by the record, this issue is appropriately before the Board for consideration.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  

In a September 2014 rating decision, the RO denied the claim for TDIU.

In February 2016, the Board remanded the matters for further evidentiary development.

In a May 2017 rating decision, the RO increased the PTSD rating evaluation to 70 percent, effective April 6, 2016.  The RO also granted the TDIU claim, effective April 6, 2016.  However, since this increase is not representative of a total grant of the benefits sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).


FINDINGS OF FACT

1.  For the period prior to July 18, 2013, the Veteran's disability picture more closely approximates an occupational and social impairment with reduced reliability and productivity due to symptoms, including and not limited to, startled response, sleep disturbances, intrusive thoughts, feelings of hopelessness or despair, depression, avoidance and isolation, memory impairment, flattened affect, impaired judgment, and difficulty with maintaining effective work and social relationships.

2.  For the period from July 18, 2013 to April 5, 2016, the Veteran's disability picture more closely approximates an occupational and social impairment with reduced reliability and productivity due to symptoms, including depression, intrusive thoughts, sleep disturbances, hypervigilance, fear of intimacy, avoidance and isolation, poor concentration, memory impairment, and difficulty with maintaining effective work and social relationships.

3.  For the period beginning April 6, 2016, the Veteran's disability picture more closely approximates an occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood due to symptoms, including and not limited to, an inability to perform activities of daily living, such as daily tasks and maintenance of minimal personal hygiene. 

4.  For the period prior to April 6, 2016, the Veteran's combined 60 percent disability rating is adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.


CONCLUSIONS OF LAW

1.  For the period prior to July 18, 2013, the criteria for a rating evaluation of 50 percent for PTSD, are met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017).

2.  For the period from July 18, 2013 to April 5, 2016, the criteria for a rating evaluation of 70 percent or higher are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, DC 9411 (2017).

3.  For the period beginning April 6, 2016, the criteria for a rating evaluation of 100 percent are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, DC 9411 (2017).

4.  For the period prior to April 6, 2016, the criteria for entitlement to TDIU are not met.  38 U.S.C.A. §§ 1114, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16, 4.25 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initial Rating for PTSD

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2017).  When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating applies.  38 C.F.R. § 4.7 (2017).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017). 

The Veteran's entire history is to be considered when making disability evaluations.  38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran has been rated for his service-connected PTSD at 10 percent disabling for PTSD, for the period prior to July 18, 2013; at 50 percent disabling for the period from July 18, 2013 to April 5, 2016; and at 70 percent disabling beginning April 6, 2016. 
	
The criteria for evaluating PTSD are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, DC 9411 (2017).  Pursuant to the General Rating formula, 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 per 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.

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 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 work like setting); inability to establish and maintain effective relationships.

A rating of 100 percent is warranted 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.  The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather, are designed to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating.  Mauerhan, 16 Vet. App. at 436.  

When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission.  VA will assign a rating 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.  38 C.F.R. § 4.126(a) 2017).  When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an rating solely on the basis of social impairment.  38 C.F.R. § 4.126(b) (2017).

Period Prior to July 18, 2013

After a review of the record, the Board finds that the Veteran's PTSD symptoms more nearly approximate a 50 percent disability rating for the period prior to July 18, 2013.  

During this period, medical records reflect that the Veteran complained of, and/or manifested symptoms such as, startled response, sleep disturbances, intrusive thoughts, feelings of hopelessness or despair, depression, avoidance and isolation, memory impairment, flattened affect, impaired judgment, and difficulty with maintaining effective work and social relationships.  See, e.g. August 2012 Progress Notes (reporting that he has ended all personal relationships with friends, as well as extended family members, as he could not seem to tolerate having people close to him); see also October 2012 Intake Assessment (reporting that he was having feelings of hopelessness or despair, with an assessment reflecting evidence of depression, including sleep disturbance, such as middle insomnia); see, too December 2012 Progress Notes (reporting that he was still having nightmares about Vietnam); See, too March 2013 Progress Notes (stating, "I often get startled in an extreme way, I was thinking recently about how South Korean troops in Vietnam were especially vicious."); See, too June 2013 Progress Notes (reflecting that the Veteran reported that he had been working away from home and when alone in a hotel room, his mind often went to vivid scenes he witnessed or experienced in Vietnam).

Medical records also reflect that the Veteran has taken a PH-Q2 screen for depression, which have rendered a negative screen for depression on a few occasions.  See, e.g. July 2011 Progress Notes; see also June 2012 Outpatient Notes.  Notwithstanding, the evidence of record for the this period, overall, is reflective of a level of impairment that more closely approximates an occupational and social impairment with reduced reliability and productivity due to the PTSD symptoms, as stated above.  However, a rating higher than 50 percent is not available for this period because the Veteran's disability picture is not reflective of an occupational and social impairment in most areas of his life.  There is no evidence, nor has the Veteran reported or manifested, symptoms of suicidal thought, plan, prior attempts; thought disorder, such as delusions, disorganized thinking, hallucinations, or being grossly disorganized; obsessional rituals; neglect of personal hygiene and appearance; near-continuous panic or depression affecting his ability to function independently; or any other manifestations that severely impact his activities of daily living.  Therefore, the evidence fails to show deficiencies in most areas due to symptoms similar or equivalent in severity to those listed in the rating criteria for a 70 percent rating, and thus, a rating in excess of 50 percent, for the period prior to July 18, 2013, is not warranted.  See Vazquez-Claudio v. Shinseki, 713 F. 3d 112, 118 (Fed. Cir. 2013) (holding that a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation).  

Period from July 18, 2013 to April 5, 2016

After a review the record, the Board finds that the Veteran's PTSD symptoms more nearly approximate a 50 percent disability rating for the period from July 18 2013 to April 5, 2016.  

During this period, medical records reflect that the Veteran complained of, and/or manifested symptoms such as, reduced reliability and productivity due to symptoms, including depression, intrusive thoughts, sleep disturbances, hypervigilance, fear of intimacy, avoidance and isolation, poor concentration, memory impairment, and difficulty with maintaining effective work and social relationships.  The most probative evidence of record is a July 2013 clinical report, which provides a comprehensive, detailed assessment of the Veteran's disability picture, which consists of specific examples of these symptoms.  It reflects that on psychological testing, a PTSD diagnostic scale reflected, among various factors, features of trauma, to include physical injury to others; thinking/feeling that his life was in danger; thinking that the lives of others were in danger; feelings of helplessness; and feelings of terror.  The diagnostic scale also reflects that the life areas affected, include relationships with friends; fun & leisure activities; relationship with family; sex life; and general satisfaction with life.  

The clinical report also reflects that the Veteran's PTSD symptoms included depression, disturbing memories (intrusive imaginary), hypervigilance, fear of intimacy, excessive desire for isolation and privacy, poor concentration, short-term memory impairment, withdrawal as a result of efforts to avoid distressing environmental stimuli, difficulty tolerating normal or routine stress in workplace/society, trouble sleeping usually associated with intrusive imaginary (nightmares), extreme sensitivity to news reports of current wars, and feelings of grief and loss.  

By addressing readjustment concerns, the Veteran reported having a history of verbal violence, in which he identified one incident in which he pushed his wife, another in which he stated that he "lost control" once with his son, and instances in which he had been verbally and physically "over the top and violent" with his family, for which he had deep regret.  He also reported that he was distant/withdrawn/antisocial, he made friends but didn't keep them, he sabotaged friendships, and that his wife told him that every friendship they developed he destroyed it.  The Veteran also indicated that he felt like he never fit in unless he is with fellow Vietnam veterans.  He further reported that he has two grown children and that they are "emotionally estranged"-not close, and also indicated that he always had trouble dealing with authority in the workplace.  The Veteran also reported that he struggled with certain PTSD symptoms of images and memories, shame and guilt, exaggerated startled response, hypervigilance and poor sleep, affective numbing of fear of intimacy, and nightmares.

A June 2014 updated clinical information letter described the nature of the Veteran's PTSD as profound and severe, based on a battery of six diagnostic instruments that the clinical therapist administered and discussed in his July 2013 clinical report.  However, for this appellate period, the Veteran's PTSD symptoms, as specified above, are more closely reflective of an occupational and social impairment with reduced reliability and productivity.  There is no evidence, nor has the Veteran reported or manifested, symptoms of suicidal thought, plan, prior attempts; thought disorder, such as delusions, disorganized thinking, hallucinations, or being grossly disorganized; obsessional rituals; neglect of personal hygiene and appearance; near-continuous panic or depression affecting his ability to function independently; or any other manifestations that severely impact his activities of daily living.  Therefore, the evidence fails to show deficiencies in most areas due to symptoms similar or equivalent in severity to those listed in the rating criteria for a 70 percent rating, and thus, a rating in excess of 50 percent, for the period from July 18, 2013 to April 5, 2016, is not warranted.  See Vazquez-Claudio, 713 F. 3d at 118 (Fed. Cir. 2013) (holding that a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation).  

Period Beginning April 6, 2016

For the period beginning April 6, 2016, the Board finds that the Veteran's PTSD symptoms more nearly approximate a 70 percent disability rating.  

In an April 2016 updated clinical opinion/letter, the same readjustment therapist who had provided the July 2013 clinical report and July 2014 clinical updated letter, indicated that he has consistently treated the Veteran for chronic PTSD and major depressive disorder since October 2012.  The therapist then opined that the Veteran is 100 percent disabled and unemployable with PTSD that is chronic, severe and profound.  As the rationale for the basis of his opinion, he explained that the Veteran has a total occupational and social impairment which is confirmed by factors, including and not limited to, his ongoing dependence on VA mental health counseling and his lengthy commitment to individual psychotherapy; numerous PTSD symptoms; and the Veteran's persistent readjustment struggles, including inability to perform activities of daily living, including hygiene and simple household tasks, which the therapist particularly noted and highlighted.  The therapist, however, made it clear that although the Veteran's brain cancer diagnosis has overshadowed his chronic PTSD, his diagnostic testing and years of consistent counseling/psychotherapy provide ample clinical evidence to warrant a 100 percent classification.  

While an April 2017 letter/opinion from a private physician opines that the Veteran's intensive treatment course for the Veteran's brain cancer likely exacerbated his PTSD, the letter/opinion does not provide a rationale for this conclusion, and therefore, the Board attributes no probative value to this opinion.  See Nieves-Rodriguez, 22 Vet. App. at 302 - 04 (2008) (ruling that neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service connection or rating context if it contains only data and conclusions).

Therefore, based on a review of the medical evidence of record, the Board finds that the Veteran's disability picture more nearly approximates an occupational and social impairment with deficiencies in most areas, such as work, school and family relations, for the period beginning April 6, 2016.  Although the April 2016 updated clinical letter/opinion is the most probative evidence of record during this period, the therapist only cited one specific PTSD symptom-inability to perform activities of daily living (including maintenance of minimal personal hygiene), and generally indicated that the Veteran has numerous PTSD symptoms.  Furthermore, evidence of record suggests that he has been able to maintain a relationship with his wife and children, although not a perfect one, but nonetheless, further refutes a finding of total occupational and social impairment.

In this regard, this April 2016 updated letter/opinion, nor any medical evidence or lay statements from the Veteran, have shown that that the Veteran manifests symptoms such as a gross impairment in thought process or communication, persistent delusions or hallucinations, or grossly inappropriate behavior.  Although the Veteran previously indicated in the July 2013 clinical report that he had been "over the top and violent" with his family, he has not asserted or indicated that this conduct continued and/or has risen to the level of conduct that is in persistent danger of hurting himself or others. 

Therefore, based on the foregoing, a 50 percent disability rating, but not higher, is warranted for the period prior to April 6, 2016; and effective April 6, 2016, a disability rating that is no higher than 70 percent is warranted for the Veteran's service-connected PTSD.

TDIU

It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16 (2017).  A finding of total disability is appropriate when there is any present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340(a)(1), 4.15 (2017). 

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, 3.34l, 4.16(a) (2017).  In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability.  38 C.F.R. § 4.16(b). 

The Veteran asserts that his PTSD and Glioblastoma Multiforme (G.M.) disabilities prevent him from securing or following any substantially gainful occupation, prior to 2016.  See May 2014 VA 21-8940 Application for Increased Compensation Based on Unemployability (Application for TDIU). 

For the period prior to April 6, 2016, the Veteran is service connected for PTSD at 50 percent disabling; tinnitus at 10 percent disabling; and left hearing loss at zero percent disabling.  Therefore, the combined disability rating is 60 percent.  38 C.F.R. § 4.25.  However, the Veteran does not meet the minimum requirements for TDIU under 38 C.F.R. § 4.16(a) because his combined disability rating is 60 percent.  Notwithstanding, this is not dispositive of the issue because consideration of TDIU must also be considered under 38 C.F.R. § 4.16(b).  As such, the Board will only consider the TDIU claim, as due to his service-connected PTSD disability, since G.M. is a non-service-connected disability.

In this regard, the central inquiry is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment, work which is more than marginal that permits the individual to earn a living wage consistent with education and occupational experience.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  

For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must show some factor which takes the case outside the norm.  The sole fact that a claimant is unemployed, is employed only part-time, or has difficulty obtaining employment, is not enough.  A rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).

In his May 2014 Application for TDIU, the Veteran reported that the last time he worked full-time was in November 2011, in which he had worked as an elevator inspector since August 2005.  The Veteran, however, provided no other work history information prior to that period.  In his application, he also indicated that he did not leave his last job/self-employment as a result of his disability, and that he did not attempt to obtain employment since he became too disabled to work.  His TDIU application further reflects that the highest level of education he completed was high school, and since becoming too disabled to work, he has not had any other form of education or training.  

In a July 2013 clinical report, the Veteran reported that he always had trouble dealing with authority in the workplace.  The report also reflects PTSD symptoms that included difficulty with tolerating normal or routine stress in workplace/society.  However, there are no other medical evidence or lay statements of record that provide additional details on how the manifestations of his PTSD symptoms have made it impracticable for him to continue his work as an elevator inspector, or in any other position (e.g. whether he had to interact with the public, how he interacted with co-workers, or what symptoms interfered with his job functions). 

Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU claim prior to April 6, 2015.  Rather, the evidence shows that the Veteran's service-connected disabilities impose, at most, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

In this regard, the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 60 percent rating for the period prior to April 6, 2016.  Furthermore, loss of industrial capacity is the principal factor in assigning schedular disability ratings.  See 38 C.F.R. §§ 3.321(a), 4.1.  Additionally, 38 C.F.R. § 4.1 specifically states that "[g]enerally, 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."  See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired).  

At this juncture, the Board finds that the facts are not sufficient to warrant referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis.  The evidence of record has not shown, nor has the Veteran asserted, any exceptional circumstances or unique factors which takes this case outside the norm.  The Veteran provided limited evidence to support his claim for a TDIU, prior to April 6, 2016.  

Therefore, based on the foregoing, the preponderance of the evidence is against this TDIU request, for the period prior to April 6, 2016.  As such, the "benefit of the doubt" rule is not applicable, and the claim is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 4.3.


ORDER

For the period prior to July 18, 2013, entitlement to an initial rating of 50 percent for PTSD is granted.

For the period from July 18, 2013 to April 5, 2016, entitlement to an initial rating in excess of 50 percent is denied.

For the period beginning, April 6, 2016, entitlement to an initial rating of 100 percent for PTSD is denied.

For the period prior to April 6, 2016, entitlement to a TDIU is denied.



____________________________________________
BRADLEY W. HENNINGS 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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