Citation Nr: 18132219
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 09-22 785
DATE:	September 6, 2018
ORDER
Entitlement to an initial disability rating of 70 percent for the Veteran's service connected Posttraumatic Stress Disorder (PTSD) but no higher is granted.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.
FINDINGS OF FACT
1. Resolving all doubt in the Veteran's favor, the Veteran's PTSD has been manifested by no worse than occupational and social impairment, with deficiencies in most areas.
2. Resolving all doubt in the Veteran's favor, the evidence of record supports a finding that the Veteran’s service connected disabilities render him unable to secure and follow substantially gainful employment. 
CONCLUSIONS OF LAW
1. The criteria for a disability rating of 70 percent, but no higher, for the Veteran's service-connected PTSD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017).
2. The criteria for entitlement to a TDIU have been met.  38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
This claim has been the subject of April 2012 and November 2016 Board remands and a May 2011 Joint Motion to Remand from the Court of Appeals for Veterans Claims.  In all instances it was determined there was insufficient records to properly adjudicate the claim.  The Board notes that all records that have been requested in prior remands have now been obtained and associated with the file.  Thus, no further remands are necessary and the Board will adjudicate the matter.
Increased Rating
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.
The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).
1. PTSD 
The Veteran was initially awarded service connection for PTSD by way of the March 2008 rating decision on appeal.  A 50 percent rating was assigned.    
Under the applicable rating criteria for mental disorders, including the Veteran’s service-connected PTSD, 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 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.  38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).  
A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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.  Id.  
The maximum 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; and memory loss for names of close relatives, own occupation, or own name.  Id.  
The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather 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, 443 (2002).  Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.”  Id.  
A veteran may only qualify for a given initial or increased rating based on mental disorder by demonstrating the particular symptoms associated with that percentage in the rating criteria, or others of similar severity, frequency, and duration.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  Although a veteran’s symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for that rating.  Id.; 38 C.F.R. § 4.130. 
The Veteran's private psychologist, RJO, has been treating the Veteran for over ten years.  During that time, he has identified a consistent array of symptoms.  Most recently, in an April 2018 report, RJO identified the Veteran's symptoms as gross impairment in thought integration and effective communication, inappropriate social behaviors, poor impulse control, obsessive rituals, difficulty in adaptation to stressful circumstances, an incapacity of establishing meaningful relationships with others, and social isolation.
Previously, RJO has stated that the Veteran's symptoms included panic attacks, sleep disorder, irritability, memory loss, inability to maintain relationships, and anxiety. Additionally, the Veteran has consistently expressed suicidal ideation.  
VA examiners have found the Veteran's symptoms to be less severe than RJO.  VA examiners have noted the symptoms as depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, irritability, impatience, and distractibility.   
Additionally, VA examiners have stated they believe the Veteran was embellishing his symptomatology.  RJO specifically rebutted this claim in his February 2008, July 2010, and December 2011 reports.  In each of these reports, RJO indicated that positive malingering was evident.  In the December 2011 report, RJO went further and stated that the Veteran’s “reliability and credibility within testing environments and clinical interview are beyond reproach” and that he was a “forthright and … accurate historian.”  
Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's symptoms more closely approximate occupational and social impairment, with deficiencies in most areas.  The Veteran's symptoms do not more closely approximate total occupational and social impairment as he has not evidenced any persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, or any other similar symptoms.  As such a higher 100 percent rating is not warranted. 
2. TDIU
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  The Veteran is currently assigned a 10 percent rating for residuals of a fracture to the T-10 and T-11 vertebrae and, as granted above, a 70 percent rating for PTSD, for a combined evaluation of 70 percent.  (These constitute the disabilities for which service connection is in effect.)  This satisfies the criteria for consideration of TDIU on a schedular basis. 
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 gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  Unlike the analysis for increased rating claims, which are based on average levels of impairment, the analysis for a TDIU claim is based upon the individual.  Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  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).
The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”).
The issue of entitlement to a TDIU was raised by the record as a component of the claim for increase on appeal.  The Veteran's psychologist, RJO, has provided multiple statements that the Veteran's psychiatric symptoms have caused significant negative impacts on his ability to work, including anger, irritability, impaired concentration, anxiety, and an inability to interact with the general public, rendering him unable to obtain and maintain substantially gainful employment. Additionally, the Veteran stated at his 2010 Board hearing that he last worked in 2000.  
The significant effects of the Veteran’s psychiatric disorder on his employability are also borne out by his VA and private treatment records.  Moreover, a review of the record shows that the Veteran’s contentions have been corroborated by the SSA which found the Veteran to be disabled due to his psychiatric conditions and service connected back disability.
As the evidence shows that the Veteran is unable to obtain and maintain gainful employment as a result of his service-connected disabilities, the assignment of a TDIU is warranted.

 
MICHAEL E. KILCOYNE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Uller, Associate Counsel 

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