Citation Nr: 18124024
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-41 962
DATE:	August 3, 2018
ORDER
Entitlement to a disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted.
Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.
FINDINGS OF FACT
1. Throughout the entire period on appeal, the Veteran’s service-connected PTSD was manifested by occupational and social impairment, with deficiencies in most areas.
2. Throughout the entire period on appeal, the Veteran’s PTSD has not been productive of total occupational and total social impairment.
3. The Veteran is precluded from gaining or maintaining substantially gainful employment due to his service-connected disability.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a disability rating of 70 percent, but no higher, for service-connected PTSD have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 
2. Resolving all doubt in the Veteran’s favor, the criteria for entitlement to a TDIU have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from May 1970 to January 1973.  
Increased Rating
Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  See 38 C.F.R. § 4.3.
PTSD is evaluated under a general rating formula for mental disorders.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 50 percent rating 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 (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 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); inability to establish and maintain effective relationships.
A 100 percent rating is warranted where 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); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.
The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.  The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation.  Id.  
The Veteran is currently assigned a 50 percent rating for his service-connected posttraumatic stress disorder.  He contends that a higher rating for his PTSD is warranted.
In January 2014 the Veteran’s physician submitted a statement indicating that the Veteran reported symptoms consistent with a diagnosis of chronic PTSD, such as depressed and anxious mood, recurrent nightmares, sleep problems, hypervigilance, emotional detachment, isolation, irritability, impaired concentration, psychological distress to cues, and cognitive difficulties.  The physician also indicated that the Veteran’s disability interfered significantly with his ability to function in social and occupational roles.  
The Veteran appeared for a VA PTSD examination in April 2014.  The examiner indicated that the Veteran’s level of occupational and social impairment could be best summarized as occupational and social impairment with reduced reliability and productivity.  The Veteran reported that he continued to have frequent nightmares, night sweats, anxiety and hypervigilance, despite his full compliance with his medications.  The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of movement and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting.  
The Veteran’s physician submitted a statement in June 2015 and April 2018 indicating that the Veteran continued to suffer from chronic PTSD symptoms, such as sad and anxious mood, isolation, emotional detachment, avoidance, restricted range of affect, extreme hypervigilance, impaired sleep, impaired concentration, recurrent trauma-related nightmares, psychological distress to cues, and cognitive difficulties.  The physician also indicated that the Veteran’s chronic PTSD and depression affected his ability to function in social and occupational roles.
At his May 2018 videoconference hearing, the Veteran testified that he became easily upset and experienced unprovoked rage when in public; thus, he prefers to stay home.  He reported a history of physical violence toward others when angry.  He indicated that his most recent arrest was in June 2017 for aggravated battery and aggravated assault.  He stated that he felt continuous depression and panic.  He also reported that he had trouble sleeping when he had not taken his medication.  The Veteran further stated that he experienced hallucinations, hypervigilance, and sometimes had to be reminded to take a shower and get dressed.  
The Veteran’s spouse testified that the Veteran was always on the defense and seldom participated in activities outside of the home.  She also reported that the Veteran had difficulty sleeping, walked through the house all night, and often looked out of the window to see if someone was outside.  
The Veteran further testified that he has adult children with whom he speaks with occasionally.  He indicated that he would get together with his two long-term friends roughly twice a week.  He also stated that he enjoyed growing plants and would occasionally visit the beach with his spouse.  
In addition to the medical evidence, the Veteran and his spouse have provided written statements regarding his PTSD symptoms.  This lay evidence is also consistent with the medical evidence of record.
In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board concludes that the Veteran is entitled to a 70 percent evaluation for his service-connected PTSD throughout the appeal period.  The medical and lay evidence shows that the Veteran’s symptomology has remained relatively consistent throughout the appeal period.  The Veteran has consistently reported symptoms that include anxiety, suspiciousness, irritability, hypervigilance, chronic sleep impairment, disturbances of movement and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting.  The effect of his symptoms is occupational and social impairment deficiencies in most areas.  Thus, the Board will afford the Veteran the full benefit-of-the-doubt and find that the totality of the evidence favors the assignment of an initial 70 percent rating.  
Although an increased rating of 70 percent is warranted, the evidence of record does not reflect symptoms that would meet the criteria for a 100 percent rating for any period of time during the pendency of the claim.  
The treatment records and multiple VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 100 percent.  Rather, while the evidence of record demonstrates significant impairment in occupational and social functioning, and the Veteran has testified that he experiences hallucinations and needs to be prompted to shower and change clothes, overall, the record does not show the total social impairment to warrant an increased rating of 100 percent.  The Veteran has expressed that he interacts with friends at least twice weekly.  In addition, he has been able to maintain his relationship throughout the appellate period and maintains relationships with his adult children.  In sum, the Veteran’s symptoms do not more nearly approximate both total social and total occupational impairment as required to warrant a 100 percent rating at any time during the appellate period.  Mauerhan, supra, Vazquez-Claudio, supra; see 38 C.F.R. § 4.130, Diagnostic Code 9411.  Assignment of staged ratings is not warranted.  See Hart, supra.
For all the foregoing reasons, the Board finds that a 70 percent initial rating, but no higher, is appropriate for the entire period on appeal.  In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).
TDIU
Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record.
Total disability ratings for compensation based on individual unemployability 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).  Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be 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, “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 the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
In order for a Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other Veterans who meet the basic schedular criteria.  The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment.  See Van Hoose, 4 Vet. App. at 361.
With the grant of 70 percent for the Veteran’s PTSD, he now meets the schedular requirements for TDIU under 38 C.F.R. § 4.16(a).  However, the evidence must still show that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities in order to be entitled to a TDIU.
In January 2014 the Veteran’s physician submitted a statement indicating that the Veteran’s chronic PTSD interfered significantly with his ability to function in his social and occupational roles.  The physician further indicated that the Veteran had difficulties sustaining employment due to his psychiatric problems. 
The Veteran appeared for a VA PTSD examination in April 2014.  The Veteran reported that he had worked intermittently as handyman and mechanic.  The Veteran stated that he has tried to find a job, but lacked the skills and qualifications to find a suitable position.
The Veteran’s physician submitted a statements in June 2015 and April 2018 indicating that the Veteran’s chronic PTSD and depression affected his ability to function in social and occupational roles.  The physician further indicated the Veteran had difficulties sustaining employment due to his psychiatric problems. 
At his May 2018 videoconference hearing, the Veteran testified that he completed twelve years of school and obtained his GED while in the Army.  He indicated that he applied for a job at the airport after his separation from service, but was denied due to his Vietnam Veteran status.  The Veteran reported that he last worked in 1974.  He stated that he was pushed out of his job because of his attitude. 
Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability.  The Veteran’s last period of gainful employment ended in 1974.  There is no evidence of any type of special training.  The Veteran’s work history of record has consisted of intermittent employment as a handyman and mechanic.  Even if the Veteran had special training or advanced education, the medical and lay evidence of record documents significant symptoms that would impair employment, such as social isolation, anxiety, suspiciousness irritability, unprovoked rage, impaired concentration, psychological distress to cues, cognitive difficulties, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting.
Considering the foregoing, the Board will resolve reasonable doubt in the Veteran’s favor, and find that the criteria for TDIU are met.  Accordingly, the claim is granted.
 
A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Joseph, Associate Counsel 

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