Citation Nr: 1754210	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-00 073	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


M. Showalter, Associate Counsel


The appellant is a Veteran who served on active duty from February 2001 to February 2005.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the St. Petersburg Department of Veterans Affairs (VA) Regional Office (RO).  In September 2015, the Board remanded the claims for additional development, specifically to obtain a new examination for the Veteran's PTSD.  That examination was held in April 2017.   


1. The Veteran's PTSD has caused him to suffer from uncontrollable irritability, anxiety, depression, passive suicidal thoughts, but has not caused him to have gross impairment of communication or thought processes, persistent delusions or hallucinations, or disorientation to time or place.  

2. The Veteran's PTSD and other service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment as of November 9, 2012, his last day of work for his former employer.  


1. An evaluation in excess of 70 percent is not warranted for the Veteran's PTSD.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code (DC) 9411 (2017).

2. The criteria for a TDIU rating have been met as of November 9, 2012.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321, 4.16, 4.18, 4.19, 4.25 (2017).


Duty to Notify and Assist

The VCAA, in part, describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The VCAA applies to the instant claims  for TDIU and an increased rating for PTSD. 

The notice requirements have been met.  VA's duty to notify was satisfied by letters dated April 2012 and March 2015.  See 38 U.S.C. § 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Those letters notified the Veteran of the information needed to substantiate and complete his increased rating and TDIU claims, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain.  The letters also provided notice as to how VA assigns disability ratings and effective dates. 
Regarding the duty to assist, the Veteran's relevant post-service treatment records have been obtained.  The agency of original jurisdiction (AOJ) arranged for appropriate VA examinations which were held in May 2012 and April 2017.  The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's PTSD and his overall employability in the examinations are sufficient for rating purposes.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008).  

The Board also finds that there has been substantial compliance with the prior September 2015 remand.  See Stegall v. West, 11 Vet. App. 268 (1998).  An examination was held pursuant to that remand in April 2017.  The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein.  The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matters on appeal, and that no further evidentiary development is necessary.  As VA's duties have been met, the Board will address the merits of the claims. 


A. Legal Criteria

Under 38 C.F.R. § 4.130, DC 9411, a 70 percent rating is warranted when 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 work-like setting); and inability to establish and maintain effective relationships.  

A 100 percent rating is warranted when there is 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id. 

Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that 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); see Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists).  Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not limited to those symptoms listed in the General Formula.  

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation 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.  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

Competent (that is, qualified) medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements contained in medical treatises, scientific articles, or research reports.  38 C.F.R. § 3.159(a)(1).  Competent (that is, qualified) lay evidence means evidence not requiring that the person providing it have specialized education, training, or experience.  Lay statements are qualified to establish than an event or circumstance occurred if the statements are provided by a personal who has personal knowledge of matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing observable symptoms or reporting that a medical provider gave them a diagnosis in the past.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   

The Board will grant a claim if the evidence supports the claim or is in relative equipoise.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

B. Factual Background

In VA treatment notes beginning in November 2010, the Veteran denied suicidal thoughts and depression, but screened positive for PTSD.  The Veteran reported that he had difficulty with anger management and described several situations where he lost control and became aggressive toward other people.  

The next month, the Veteran was diagnosed with "intermittent explosive disorder vs Anxiety Disorder."  The Veteran at that time reported that he was concerned about his ability to control his irritability.  He stated that his last job was in September 2010 and that he had previously lost several jobs because of his anger.  He also reported that he had previously threatened his ex-wife in his sleep, but did not remember doing so in the morning.  He expressed some difficulties with thought processes, stating that he often did daily tasks without much cognition and once drove to Connecticut without much thought.  He reported that he only slept four hours a night and had a tendency to wake for no reason.  The examiner noted that the Veteran also suffered from symptoms of hypervigilance.

In a private psychological evaluation dated November 2011, the Veteran reported depressive symptoms, nightmares, and irritability.  He reported that he often had poor impulse control and on two separate occasions had engaged in serious physical fights.  At that time he suffered from flashbacks and intrusive thoughts related to his experiences in service.  The psychologist noted that the Veteran's thought processes appeared to be normal and that the Veteran was oriented to person, place and time, but that his attention and concentration capacities were below normal and there were several cognitive and judgmental abnormalities.  The psychologist found that significant depressive symptoms and anger control issues caused severe social and work-related functional impairments.  Additionally, the psychologist found that the Veteran's suicidal ideation, irritability, depression, and cognitive difficulties were "quite evident and likely to substantially negatively impact his employability." 

In a VA examination dated May 2012, the examiner found that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity.  The Veteran reported that he fought often with his significant other and reported having no friends because he "did not want to have friends,"  and did not trust anyone.  At that time, he reported that he was working in truck maintenance, but tried to stay away from coworkers and customers.  He reported that he often dreamt of being killed or killing people and that he suffered from short term memory loss, providing the example that he forgot parts of his job or even how to navigate his work place.  The examiner noted that the Veteran suffered from a depressed mood, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. 

In November 2012, the Veteran's former employer provided a statement indicating that the Veteran was no longer an employee and that his last day of work was November 9, 2012.

In a December 2012 private psychological evaluation, the examiner found that the Veteran had homicidal tendencies and was unable "to maintain a normal standard of living."  The examiner noted that problems with emotional and behavioral controls, "as evidenced by his history of angry outbursts and physical fighting on the job" would likely make the Veteran "a danger to any work environment."  The examiner found, however, that the Veteran's thought processes fell within normal limits and that he was oriented to person, place, and time.  Judgment and insight, however, were noted to be below normal limits. 

In October 2013, the Veteran reported that he was receiving Social Security Administration disability benefits because of his service-connected disabilities. 

In his application for TDIU dated October 2013, the Veteran reported that he last worked in November 2012.  Social Security records show that in November 2012, the Veteran was "let go due to physical altercations."  He was determined disabled by the Social Security Administration beginning in that month. 

In correspondence dated February 2015, the Veteran's caretaker reported that he could not sleep well, had nightmares, and suffered from anxiety.  He reported in March 2015 that despite adhering to his medication, his symptoms were still severe. 

In an April 2017 VA examination report, the examiner noted that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity.  The examiner noted that the Veteran suffered from depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances in motivation, suicidal ideation, impaired impulse control and unprovoked irritability with periods of violence.  The examiner found that the Veteran was oriented to person, place, and time, and that his thought processes, insight, and judgement were normal.  There was no evidence of any perceptual disturbances, paranoia, or delusional thinking.  The examiner found that the Veteran's symptoms had worsened since 2010.  He noted that the Veteran now reported frequent passive suicidal ideations, and frequent panic attacks. 

C. Analysis

After reviewing the record, the Board finds that a higher than 70 percent evaluation is not warranted for the degree of the Veteran's symptoms.  It is plainly apparent from both private and VA psychological assessments that the Veteran's PTSD symptoms are severe and cause occupational and social impairment.  

That said, while the Veteran has been assessed to have impaired judgment, evidenced by his spontaneous violence, he has been noted to have normal thought processes.  Evidence shows that he is able to perform activities of daily living and does not experience persistent delusions.  The Veteran does not suffer from memory loss of close relatives or her own name.  He does not endorse gross impairment in communication.  He is not disoriented to time and place or other symptoms of a similar type or severity as those listed among the criteria for a 100 percent disability rating.  Overall, his symptoms affect most areas of his life (as contemplated by a 70 percent disability rating), but have never been shown to equate to total occupational and social impairment.  Accordingly, a rating in excess of 70 percent is not warranted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.21. 

The Board recognizes that it is reaching this determination about PTSD at the same time that it has decided (as discussed below) that entitlement to TDIU is warranted.  However, it is important to note that the criteria for TDIU are markedly different than those for a 100 percent evaluation for PTSD.  Moreover, consideration for TDIU takes into account the Veteran's service-connected disabilities in their totality, and the Veteran's PTSD is not the only service-connected disability that has a significant effect on his employability.  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


An award of TDIU requires that a veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability, and that the veteran have a single service-connected disability rated at 60 percent or more, or at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  The central inquiry is whether the Veteran's service-connected disabilities are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In making this determination, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

In this case, the Veteran met the schedular criteria for consideration under 38 C.F.R. § 4.16(a) on February 17, 2012, the date on which he was service connected for PTSD at an evaluation of 70 percent.  Additionally, the record shows that the Veteran has been unable to work since November 9, 2012 when he left his last job after a physical altercation initiated in part by his PTSD symptoms.  Since that time, he has been determined to be disabled by the Social Security Administration. 

The record supports a finding that the Veteran's service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment.  Both private psychologists and VA examiners have found that the Veteran's violent tendencies caused by his PTSD pose a risk for himself and for those around him in any occupational environment.  As far back as December 2012, the Veteran was assessed to be "a danger to any work environment."  The record shows that, in fact, the Veteran engaged in multiple physical fights while at work that resulted in his ultimate resignation in November 2012 from his last place of employment.  He reported that since that time, he has been unable to work because of his PTSD symptoms.  In addition to irritability, the Veteran's PTSD causes anxiety, depression, and asocial tendencies that would also negatively affect his ability to perform in any occupational capacity.  

Additionally, the Veteran's other service-connected disabilities, as listed in a June 2017 rating decision), would cause difficulties at work.  The Veteran has reported that his tinnitus is a constant distraction.  His knee disabilities have been noted to limit his physical capabilities.  

Taking into account all of the Veteran's service-connected disabilities, it is clear that he is unable to secure or follow a substantially gainful occupation as a consequence of such disabilities..  As the record shows that the Veteran met the schedular criteria for TDIU and was unemployable beginning November 9, 2012, TDIU is warranted effective November 9, 2012.  An award of TDIU is granted. 


Entitlement to a rating in excess of 70 percent for PTSD is denied. 

Entitlement to TDIU is granted effective November 9, 2012.

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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