Citation Nr: 18123935
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 12-18 262
DATE:	August 3, 2018
ORDER
A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and anxiety with social phobia is denied.
A total disability rating for compensation based on individual unemployability (TDIU), prior to February 26, 2010, is denied.
 
FINDINGS OF FACT
1. The Veteran’s psychiatric disability has not been productive of total occupational and social impairment.
2. Prior to February 26, 2010, the Veteran’s service-connected disabilities did not prevent him from securing and following substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 70 percent for PTSD and anxiety with social phobia have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411.
2. Prior to February 26, 2010, the criteria for a TDIU have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 2002 to December 2005 and from October 2007 to October 2008, including service in Iraq.
The case is on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO).
In August 2017, the claims came before the Board of Veterans’ Appeals (Board) and were remanded for further development.

1. A rating in excess of 70 percent for the psychiatric disability
The Veteran’s procedural history shows his psychiatric claim was initially granted by the RO in a February 2009 rating decision and a 10 rating was assigned.  In a January 2010 rating decision, the rating was increased to 30 percent and in a September 2011 rating decision, the rating was again increased to 70 percent, effective August 3, 2011.  The claim came before the Board in February 2015 and a 70 percent rating was granted back to February 26, 2010.  Additionally, a rating in excess of 30 percent was denied prior to February 26, 2010 and a rating in excess of 70 percent from February 26, 2010 was remanded for further development.  The Board remanded the claim again in August 2017 and directed the RO to attempt to obtain all records of treatment from the Vet Center in Babylon, New York, from approximately 2010 until the present.  Additionally, the RO was directed to obtain updated VA treatment records and if applicable, any private treatment records.  The Veteran was sent a letter on December 12, 2017, requesting he complete and return a release of authorization form so pertinent treatment records from the Vet Center in Babylon, New York could be obtained.  The Veteran was also notified that he could obtain and send VA the records himself, if possible.  There was no response received.  The Veteran’s failure to complete the VA Form 21-4142 leaves the Board without the ability to obtain potentially pertinent treatment records on his behalf.
Legal Criteria
Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C. § 1155.  Generally, 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.  38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.
The Veteran’s psychiatric disorder, to include PTSD, has been evaluated under the provisions of 38 C.F.R. § 4.130, DC 9411.  Under that DC, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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.
The highest rating of 100 percent 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.  Id.
Facts and Analysis
The Veteran was afforded an April 2009 VA examination in which the Veteran reported his anxiety disorder, PTSD and panic attacks were affecting his life and he did not want to be around others.  He was diagnosed with depression and anxiety disorder.  The examiner indicated the Veteran’s anxiety disorder was not severe enough to interfere with his occupational and social functioning.  The Veteran was afforded a May 2009 VA examination in which he reported he was a full-time college student, living with his parents, he socialized with friends and planned to marry his fiancé.  Examination revealed he was alert and oriented with adequate hygiene and behavior.  The examiner noted that the Veteran did not indicate significant periods of depression and his anxiety disorder was not severe enough to interfere with occupational and social functioning.
Thereafter, the Veteran’s psychiatric symptoms worsened, and on February 26, 2010 VA treatment records show that he presented to the emergency room with complaints of being very anxious and having panic attacks.  He reported that he had suicidal feelings, thoughts, and impulses at that time, as well as severe emotional distress, anxiety and sleep difficulties.  On examination, he exhibited psychomotor agitation, pressured speech, his mood was irritable, his affect was labile, and his insight and judgment were limited.  The Board notes he was hospitalized for approximately three weeks.  The treatment records also noted that he was recently married and continued to socialize with peers.
In March 2010, he reported mood swings and suicidal ideations, racing thoughts, irritability/anger, hypersensitivity to sounds, as well as impaired sleep, depression, lack of no motivation and a hard time getting out of bed.  He reported occasional violent thoughts when intoxicated and verbal abuse, including recently having hit his father.
During the December 2010 VA examination, the Veteran reported that he lived with his wife and members of his extended family.  He noted he worked for the past month as a security guard and did not indicate impaired occupational functioning because of his psychiatric symptoms.  The examiner indicated his appearance and hygiene were appropriate, he reported no suicidal or homicidal ideation, he denied hallucinations and delusions, and his speech and thought processes were not impaired.
The Veteran was afforded an August 2011 VA examination which indicated he kept to himself, some days he felt depressed and shaky, and he also felt tense in crowds, elevators, and other places.  He was diagnosed with anxiety disorder and social phobia.  The examiner reported panic attacks, which resulted in his heart pounding and difficulty with breathing, mostly in a crowd.  The Veteran reported suicidal thoughts, but had not attempted suicide.  He also indicated that he experienced homicidal thoughts when he was intoxicated.  His impulse was fair and he had episodes of violence, with previous histories of arrest after an altercation at a club in New York City.
During an October 2011 VA examination, the examiner indicated he suffers from occupational and social impairment due to mild or transient symptoms.  He noted symptoms of depression, anxiety, panic attacks and chronic sleep impairment.  In a January 2012 statement, the Veteran indicated he was hearing and seeing things which were not there.  On July 2012 VA examination, the examiner stated he suffers from occupational and social impairment with occasional decrease in work efficiency.  The examiner noted hypervigilance; more vivid recollections of combat trauma to include visual, auditory, and illusionary hallucinatory behavior; intrusive thoughts; and increased anxiety.  He additionally indicated the Veteran suffers from temper outbursts, low self-confidence, poor concentration and motivation and thought content disturbances.  He noted symptoms of suspiciousness, panic attacks, chronic sleep impairment, memory loss, disturbances in motivation and mood, suicidal ideations, and difficulty in establishing and maintaining effective work and social relationships.
The Veteran was then afforded a February 2015 VA examination in which the examiner indicated the Veteran suffered from occupational and social impairment with reduced reliability and productivity.  Such level of impairment is consistent with a 50 percent psychiatric rating.  38 C.F.R. § 4.130, DC 9411.  The examiner indicated the Veteran was married and had one biological child and two step children, whom he has cared for since they were babies.  The examiner noted symptoms similar to the previous examination reports, including irritable behavior and anger, hypervigilance, exaggerated startle response and problems with concentration.  He indicated the Veteran suffers symptoms of panic attacks, mild memory loss, disturbances of motivation and mood, an inability to establish relationships and impaired impulse control.  He also noted the Veteran dressed and spoke appropriately.
As noted above, the Board remanded the claim for a psychiatric rating in excess of 70 percent from February 26, 2010.  Additional VA treatment records were obtained, including a May 2015 record which indicated the Veteran suffers from sleep impairment and intrusive thoughts, with no suicidal thoughts at that time.  A November 2015 VA record similarly reported the Veteran had no suicidal thoughts, but suffered from sleep trouble, hypervigilance and avoidance.  A July 2017 record further noted the Veteran’s depression was improving with no suicidal thought or intent, as well as good cognition, insight and impulse control.
In consideration of the lay and medical evidence of record, the Board finds that the criteria for a rating in excess of 70 percent for the service-connected psychiatric disability have not been met.  Throughout the period on appeal, the record reflects the Veteran has experienced significant psychiatric symptoms; however, total occupational and social impairment has not been exhibited.
The Board notes a worsening of the Veteran’s symptoms in February 2010 that caused him to be hospitalized for approximately three weeks due to anxiety and panic attacks.  Further, the medical evidence suggests symptoms of suicidal ideation, occasional impulse control, irritability, sleep difficulties, occasional homicidal thoughts only when intoxicated and reports of visual and auditory perceptions, and thought content disturbances.  The Board is sympathetic to the Veteran’s impairment level and acknowledges the severity of his symptoms.  However, the Board determines that while the Veteran is totally occupationally disabled, as has been found, he is not totally socially impaired based on his psychiatric disability.
The Veteran is married with one biological child and two step children that he has cared for since they were babies.  The VA examination reports show he has a good relationship with his immediate and extended family.  He reported to the February 2015 examiner that he likes spending time with his kids, including watching cartoons, and generally appreciates the support and understanding that his wife provides for him.  Additionally, the Veteran’s symptoms overall have not been productive of total social impairment, as he has not demonstrated gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place or significant memory loss, including for names of close relatives and his own name.  While the Veteran has reported hallucinations, the medical evidence does not suggest “persistent” delusions or hallucinations, including the most recent February 2015 VA examination.  Moreover, the Board acknowledges the Veteran has suffered suicidal ideation and homicidal thoughts when intoxicated.  However, symptoms of “persistent” threat of danger to himself or others has not been exhibited by the Veteran.
The Board notes it has already been determined that the Veteran’s PTSD alone prevent him from pursuing a substantially gainful occupation and he was awarded a TDIU rating, effective February 26, 2010.  Thus, a 100 percent rating via that benefit is already in effect.  However, total social impairment has not been shown.
For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 70 percent for the psychiatric disorder.  As there is no doubt to be resolved, an increased rating is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert at 49, 53-56.
2. TDIU
The Veteran’s claim for a TDIU was granted in the December 2012 rating decision, effective August 3, 2011.  Thereafter, a March 2016 rating decision awarded an earlier effective date for the award of a TDIU to February 26, 2010.  Thus, as noted, the appeal period includes review for a TDIU prior to February 26, 2010.
Legal Criteria
A total disability rating 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 the result of service-connected disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.16.  Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities.  See 38 C.F.R. §§ 4.16, 4.19.  To meet the schedular requirements, there must be one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent.  38 C.F.R. § 4.16(a).
Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.”  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991).
Facts and Analysis
VA treatment records prior to February 26, 2010 show treatment for anxiety and social phobia.  In October 2008, the Veteran’s appearance, attention, concentration, memory, and thought processes were normal and his judgment, insight, and impulse control were reported as fair.  He had complaints of fear of being in social situations and public speaking, as well as panic attacks in the evenings.  A May 2009 VA record indicated the Veteran was “doing fine,” doing well in school with plans to graduate and was coping well with his anxiety.  An August 2009 record noted the Veteran was interested in seeking employment related to people with disabilities.  An October 2009 record indicated the Veteran reported feeling good, despite suffering from anxiety and dealing with a recent arrest for assaulting a police officer.  A December 2009 record indicated the Veteran was proud to have graduated from college and also, of his recent marriage.
The April and May 2009 VA psychiatric examiners indicated the Veteran’s psychiatric symptoms were not severe enough to interfere with occupational and social functioning.  The May 2009 examiner noted he was a full-time college student and doing well in his courses.  He lived with his parents, worked out at a gym for exercise, socialized with friends, and planned to get married, which he did thereafter.  A May 2009 VA examiner for the Veteran’s headaches indicated he had a mixed headache disorder which mildly interfered with his quality of life.
As indicated above, the Veteran’s psychiatric symptoms worsened in February 2010, and on February 26, 2010 he presented to the emergency room with complaints of being very anxious and having panic attacks.  He reported that he had suicidal feelings, thoughts, and impulses at that time, as well as severe emotional distress, anxiety and sleep difficulties.  The Board notes he was hospitalized for approximately three weeks.
In an April 2010 statement, the Veteran reported worsening PTSD symptoms, despite medication, counseling, and therapy.  During the December 2010 VA examination, the Veteran reported that he lived with his wife and members of his extended family.  He stated he worked for the past month as a security guard and did not indicate any problems on the job as a result of psychiatric symptoms.
Subsequently, in the August 2011 VA examiner indicated the Veteran kept to himself, was depressed and felt tense in crowded situations, elevators, and other places.  He reported panic attacks all the time, suicidal thoughts, and homicidal thoughts when he was intoxicated.  The October 2011 VA examiner indicated he suffered from occupational and social impairment due to mild or transient symptoms.  The July 2012 VA examiner stated he suffers from occupational and social impairment with occasional decrease in work efficiency.  He indicated symptoms of visual, auditory, and illusionary hallucinatory behavior; intrusive thoughts; and increased anxiety.  Additionally, records from the Social Security Administration (SSA) reflect that the Veteran was not considered disabled for SSA purposes as of May 2012 due to his psychiatric disability.
Based on the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran has been prevented from securing or following substantially gainful employment as a result of his service-connected disabilities, prior to February 26, 2010.  His service-connected disabilities impact his employability.  However, the evidence shows that the Veteran was not prevented from any employment due to these disabilities until February 26, 2010.
The VA treatment records and VA examinations of record show the Veteran was suffering psychiatric symptoms prior to February 2010, but was receiving adequate treatment for such.  He was finishing school, enjoyed spending time with his family and planned to get married.  However, he suffered significant worsening of the psychiatric symptoms in February 2010 which led to him being hospitalized for approximately three weeks.  Thus, the VA psychiatric opinions of record support that the Veteran’s employment is affected by his psychiatric disorder, but not that it prevents him from substantially gainful employment, prior to February 26, 2010.
The Board notes the record does not contain any medical opinions to the effect that the Veteran’s service-connected psychiatric disorder, or the other service-connected disabilities, prevent him from securing or following a substantially gainful occupation prior to February 26, 2010.  Although a TDIU determination is not a medical issue, the medical opinions in this case serve to inform the Board in its decision.  The evidence suggests that the Veteran is prevented from working due to his psychiatric disorder, but not until February 26, 2010.
In sum, the evidence of record does not show that the Veteran is prevented from securing or following substantially gainful employment due to his service-connected disabilities, prior to February 26, 2010.  As the preponderance of the evidence is against the claim, entitlement to a TDIU is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Isaacs, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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