Citation Nr: 18154167
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-52 854
DATE:	November 29, 2018
ORDER
Entitlement to an initial disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is denied.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.
REMANDED
Entitlement to an effective date earlier than March 10, 2009, for the grant of service connection for PTSD is remanded.
Entitlement to dependency benefits is remanded.
FINDINGS OF FACT 
1. The Veteran’s PTSD has not more nearly approximated total occupational and social impairment.   
2. The Veteran is currently incarcerated.
CONCLUSIONS OF LAW
1. The criteria for an initial disability rating in excess of 70 percent for PTSD are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2017).  
2. The criteria for entitlement to TDIU are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1971 through July 1974.  
1. Entitlement to an initial disability rating in excess of 70 percent for service-connected PTSD.
The Veteran asserts that he is entitled to a 100 percent disability evaluation for PTSD.  Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.
In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).
An appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).   If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  
The Veteran has been assigned a 70 percent evaluation under 38 C.F.R. § 4.130, DC 9411, which contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as:  suicidal ideations; 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 the inability to establish and maintain effective relationships.
A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as:  gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 
However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.”  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  The symptoms shall have caused occupational and social impairment in most of the referenced areas.  Vazquez-Claudio, 713 F.3d 112.  When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126.  In addition, the evaluation must be 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.  Id.
Factual History
The Veteran initially filed his claim of entitlement to service connection for PTSD on March 10, 2009.  There are no VA or private treatment records regarding the Veteran’s PTSD.  The Board notes that the Veteran has been incarcerated since March 1988 and his release date is scheduled for 2039.
In a May 2014 VA social and industrial survey, the Veteran reported that he was always getting fights which inhibited his obtaining parole.  He was not on medication.  The Veteran reported sleep impairment, including taking 3 hours to get to sleep, waking to noises, and nightmares of military service operations.  The Veteran stated his mood was anxious and reported feelings of guilt, hopelessness, depression, and worthlessness.  He reported being unable to look people in the eye and is most comfortable in his cell alone.  He denied suicidal ideation and hallucinations.  The Veteran denied flashbacks and could not stand crowds or public places.  He reported feeling emotionally numb and dead inside.  He reported problems with anger, including feeling irritable and getting into fights.  He could not stand the sounds of ticking as it reminded him of bombs.  The Veteran had to sit with his back to the wall.  He felt that he needed the controlled environment of prison.  He was married in 1977 until his wife died a few years ago.  He had contact with his two children.
Upon mental status examination, the examiner found the Veteran had direct eye contact and was extremely alert and somewhat startled.  The Veteran’s eyes were always darting all around the interview room and out the door, easily distracted.  The Veteran’s affect was congruent, and his answers were appropriate, clear, and coherent.  There were periods of disassociation.  There were logical connections between his thoughts.  The Veteran was alert and oriented in all 3 spheres.  His long-term memory was better than short-term memory and judgment and insight were intact for safety and self-care.  The examiner noted intrusive and distressing thoughts, nightmares.  The examiner found the Veteran competent.
In May 2014 the Veteran was afforded a VA PTSD examination.  The Veteran reported he was hypervigilant in jail and had been involved in several fights.  The Veteran was alert and oriented.  He was pleasant and maintained appropriate eye contact.  The examiner found the thought process was logical and goal-oriented with an anxious mood.  There were passive suicidal and homicidal thoughts, but no plan.  The Veteran could be quite reactive if threatened.  The examiner found that the Veteran’s PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.  The examiner found the Veteran’s PTSD caused symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired judgment, suicidal ideation, obsessional rituals which interfere with routine activities, and impaired impulse control, such as unprovoked irritability with periods of violence.  
Analysis
The Board finds that a rating in excess of 70 percent is not warranted.  Initially, the Board finds that there is not total occupational and social impairment.  The Veteran preferred to be isolated, but had been married from 1977 until his wife died, and maintained some contact with his children from jail.  First, the examiners found the Veteran fully oriented and did not find that there was any inability to perform activities of daily living.  Both examiners found the Veteran competent.  It was also noted that his long-term memory was better than his short-term memory, and mild memory loss, but neither noted memory loss for names of relatives, occupation, or own name.  These findings indicate that a 100 percent evaluation is not for evaluation.  Furthermore, the PTSD examiner found the Veteran’s thought process was logical and goal-oriented.  The social and industrial examiner found that there were logical connections between the Veteran’s thoughts.  Finally, a VA examiner concluded that the Veteran’s judgment and insight were intact for safety and self-care, despite judgment and impulse control being impaired.  There was unprovoked irritability with periods of violence, to include fights in prison.  Importantly, the Veteran did not exhibit symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting self or others.  Although the Veteran reported suicidal and homicidal ideations, he had no active plans.  
In view of the aforementioned evidence, the Board finds that the Veteran’s PTSD is primarily characterized by the following signs or symptoms:  anxiety; suspiciousness; chronic sleep impairment; mild memory loss; impaired judgment; suicidal ideations; and impaired impulse control.  Essentially, these symptoms are similar to many of those contemplated by the currently assigned 70 percent rating.  In particular, the General Rating Formula lists suicidal ideations, depression affecting the ability to function, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances (including work or a worklike setting), and the inability to establish and maintain effective relationships.  38 C.F.R. § 4.130.  These are not unlike those the Board finds to be associated with this Veteran’s PTSD.  
Further, given the frequency, nature, and duration of those symptoms, as reflected in the medical evidence, the Board finds that they result in no more than occupational and social impairment with deficiencies in most areas.  They do not more closely approximate the types of symptoms contemplated by a 100 percent rating, and therefore, a 100 percent rating is not warranted.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Significantly, the evidence shows that the Veteran has been able to perform his activities of daily living and maintain relationships.
The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his PTSD and has assigned these statements probative value as they are competent.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Despite this, the lay statements and objective findings of record demonstrate that a 100 percent evaluation is not for assignment.  
In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 70 percent.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.
2. Entitlement to a total disability rating based on TDIU.
The Veteran filed a claim for entitlement to TDIU in July 2014.  Although he submitted a statement suggesting an intent to withdraw his appeal for this issue in September 2016, his statement conflicts with his October 2016 substantive appeal. As to not unduly prejudice the Veteran, the Board will address the issue of TDIU.
A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the Veteran 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 service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  VA will grant TDIU when the evidence shows that a Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16. 
Specific provisions, however, apply to incarcerated veterans that limit the availability of TDIU as a matter of law.  Under 38 C.F.R. § 3.341(b), a rating for TDIU that would first become effective while a veteran is incarcerated in a penal institution for conviction of a felony, shall not be assigned during such period of incarceration.  See 38 U.S.C. § 5313(c).  Adjudication of TDIU is prohibited if that rating would begin while the veteran is incarcerated for a felony conviction.  See VAOPGCPREC 13-97 (Apr. 7, 1997).  Accordingly, entitlement to TDIU may be denied as a matter of law if the TDIU rating would commence during a period of incarceration for a felony. 
The Veteran filed a claim of entitlement to TDIU in July 2014.  In March 1988, the Veteran was convicted of a felony in the state of Delaware.  He was incarcerated for that felony in March 1988.  The evidence of record reflects that the Veteran continues to be incarcerated in connection with this aforementioned felony conviction.  As such, the Veteran filed his claim of entitlement to TDIU while incarcerated for a felony conviction.  There is also no indication of record in his claims file, or according to Delaware Department of Corrections records, that a parole date has been established.  If this claim were to be adjudicated, the rating would thus begin during a period in which the Veteran was incarcerated, and would therefore violate 38 U.S.C. § 5313(c) and 38 C.F.R. § 3.341(b).  As such, the Veteran’s claim of entitlement to TDIU must be denied as a matter of law.
 
REASONS FOR REMAND
1. Entitlement to an effective date earlier than March 10, 2009, for the grant of service connection for PTSD.
2. Entitlement to dependency benefits.
These issues were denied in a May 2014 rating decision and October 2014 notice letter and were appealed in a May 2015 notice of disagreement.  A statement of the case (SOC) has not yet been issued.  Thus, remand is necessary.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
The matters are REMANDED for the following action:
Send the Veteran an SOC that addresses entitlement to an effective date earlier than March 10, 2009, for the grant of service connection for PTSD, and entitlement to dependency benefits. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration as appropriate.

 
K. MILLIKAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Martinez, 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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