Citation Nr: 1648558	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  04-13 606	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an initial disability rating higher than 50 percent for his service-connected psychiatric disability.  

2.  Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Sean Kendall, Esq.








INTRODUCTION

The Veteran had active service from September 1972 to February 1973. 

This matter comes before the Board of Veterans' Appeals (Board) from an August 2003 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO), which denied a disability rating in excess of 50 percent for the Veteran's service-connected generalized anxiety disorder. 

By a December 2006 decision, the Board denied a rating in excess of 50 percent.  Thereafter, the Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court).  In a June 2008 Order, the Court granted a joint motion for remand, vacated the Board's decision, and remanded the case to the Board.

The appeal was subsequently remanded in September 2008 and July 2011 for further development.  Given that this appeal is nearly 14 years old, it is well-past time to provide a final decision to the Veteran.  

The Board grants the Veteran's appeal for a higher rating for his psychiatric disability and also grants TDIU benefits. 

REASONS AND BASES 

The Veteran's PTSD is rated as 50 percent disabling.  He argues that his symptoms more closely approximate the criteria for a higher rating.  The Board agrees and thus grants a 70 percent rating for the entire appeal period, as well as a TDIU rating from the day after the Veteran stopped working.    

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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent evaluation is warranted where there is 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); and inability to establish and maintain effective relationships.  Id. 

A 100 percent evaluation requires 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; and, memory loss for names of close relatives, own occupation, or own name.  Id. 

The symptoms listed above serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list.  See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002).  

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a) (2016).



Analysis

The medical evidence throughout the appeal period reveal that the Veteran suffered from anxiety, depression, insomnia, irritability, anger, nervousness, isolating behavior, hallucinations and suicidal thoughts.  He suffered from significant occupational impairment, including that he thought that everybody in his job was against him and some statements that he was not able to work.  Moreover, the Board notes that the Social Security Administration (SSA) found him unable due work due to his psychiatric disability.  The Veteran also had GAF scores as low as 50.  

In total, the evidence includes a mix of positive and negative evidence regarding whether the Veteran's symptoms and their effects warrant a higher rating.  However, when considered together, the Board finds that the weight of the evidence is at least in equipoise as to approximating a 70 percent rating, but no higher.  38 C.F.R. § 4.7.  In resolving all doubt in his favor, he has occupational and social impairment with deficiencies in most are due to such symptoms as suicidal ideation; 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 and difficulty in adapting to stressful circumstances (including work or a worklike setting) and intermittent hallucinations.  38 C.F.R. § 4.130.  

However, the Board does not find that his symptoms result in total occupational and social impairment, and that he does not meet the criteria for a 100 percent rating.  Although the Board herein finds the Veteran is totally occupationally disabled, as reflected in the TDIU rating, he does not suffer from total social impairment.  The May 2009 social and industrial survey and April 2016 VA examination demonstrate that social impairment is not total.  

In the May 2009 survey, it was noted that when the surveyor showed up unannounced, the Veteran was visiting his sister at the time.  When he reported for the survey, he was  observed in good hygiene and excellent grooming.  He came to the office dressed in jeans and polo shirt.  He was calm, open and cooperative, maintaining good eye to eye contact.  The surveyor noted that the Veteran maintained "good relations and communication with his big family who provides good support."  In the summary, the surveyor noted that the Veteran "lives alone, receives support from his sister and maintains close relation and communication with immediate family and neighbors." He was independent for his activities of daily living (ADL's and IADL's) and his family provides support for cooking, cleaning and chores. He reported periods of depression and isolation, and a lack of energy to do the things he likes, especially his music. 

In the April 2016 VA examination, the Veteran reported that he was living alone in his own house.  There were no significant interpersonal relation difficulties reported.  In addition, the Veteran reported maintaining a "good" family relation and that his sisters were living nearby.  He reported being active in church activities and enjoys playing the guitar with the church chorus.  

Therefore, the Board finds he does not suffer from total social impairment.  Thus, while his symptoms are severe (as reflected in the now assigned 70 percent rating and TDIU), the Board does not find them to result in total social and occupational impairment.  Id.

The Board does not find that referral for extraschedular consideration is warranted, as his symptoms are contemplated by the rating schedule.  Thun v. Peake, 22 Vet. App, 111 (2008).  His psychiatric symptoms are rated based on the extent of social and occupational impairment they cause.  The symptoms that are listed under the criteria applicable to his disability serve as mere examples of the type and degree of the symptoms, and their effects, which would justify a particular rating, and are not intended to constitute an exhaustive list.  Mauerhan, supra.  Thus, all of his symptoms are contemplated by the Rating Schedule, and were taken into consideration when assigning a 70 percent rating.  

Moreover, the Board herein grants TDIU, which equates to a total rating and the Veteran has no other service-connected disabilities.  Thus, VA is maximizing benefits and Special Monthly Compensation is not presently before it.
TDIU

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience.  
38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). 

The Veteran must meet specific requirements before consideration of whether the evidence demonstrates unemployability.  If the Veteran has only one service-connected disability, it must be rated at 60 percent or more.  The Veteran is only service connected for his psychiatric disorder, which as of this decision is rated at 70 percent disabling.  This meets the schedular requirements for the assignment of a TDIU. 

The question that remains, then, is whether the Veteran's service-connected disability precludes him from obtaining or engaging in substantially gainful employment.  The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The record shows the Veteran has not worked since 2004.  The Board finds that the above discussed psychiatric symptoms have prevented him from working cooperatively with others, or dealing with the stress of work.  Numerous instances in the record, including the June 2016 Disability Benefits Questionairre submitted by his private physician, supports this.  Thus, he has been precluded from gainful employment for the entire period since he stopped working.  This is also supported by the SSA's finding of an inability to work, as well.  Accordingly, a TDIU rating is warranted.



ORDER

A 70 percent rating for the Veteran's service-connected psychiatric disability is granted for the entire appeal period.

A TDIU is granted from the day after the last day he worked full-time, July 31, 2004.  



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



Department of Veterans Affairs

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