Citation Nr: 18160553
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-04 515
DATE:	December 27, 2018
ORDER
For the rating period prior to May 5, 2015, a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied.
For the rating period from May 5, 2015 to May 11, 2015, a temporary 100 percent rating for PTSD is granted.
For the rating period beginning May 12, 2015, a rating in excess of 70 percent for PTSD is denied. 
For the rating period from April 2, 2013 to September 2, 2014, entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities is granted.
For the rating period beginning September 3, 2014, a TDIU is moot.
FINDINGS OF FACT
1. From May 5, 2015 to May 11, 2015, the Veteran was hospitalized for symptoms associated with his service-connected PTSD disability, more nearly approximating total occupational and social impairment.
2. For the entire rating period on appeal (excluding the period of temporary total rating from May 5, 2015 to May 11, 2015), the Veteran’s PTSD did not more nearly approximate total social impairment.
3. The Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation for the rating period from April 2, 2013 to September 2, 2014.
4. A TDIU is moot for the rating period beginning September 3, 2014.
CONCLUSIONS OF LAW
1. For the rating period from May 5, 2015 to May 11, 2015, the criteria for a temporary rating of 100 percent for PTSD are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).
2. For the rating period on appeal (excluding the period of temporary total rating from May 5, 2015 to May 11, 2015), the criteria for a rating in excess of 70 percent for PTSD are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).
3. For the rating period from April 2, 2013 to September 2, 2014, the criteria for entitlement to a TDIU are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R.                      §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017).
4. For the rating period beginning September 3, 2014, the criteria for entitlement to a TDIU are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1970 to December 1971.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
Laws and Analysis for PTSD Disability
Disability evaluations 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. 
The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017). 
The Veteran’s PTSD disability is rated under the General Rating Formula for Mental Disorders.  See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).  Ratings are assigned according to the manifestation of symptoms.  When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). 
Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.
The Veteran is in receipt of a 70 percent disability rating for his PTSD disability under Diagnostic Code 9411 for the rating period on appeal.  The criteria for a 70 percent rating are: 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.). 
The criteria for a 100 percent rating are: 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.  38 C.F.R. § 4.130, Diagnostic Code 9411. 
In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS.  If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436.
The evidence includes an April 2012 VA psychiatric examination report.  During the evaluation, the Veteran reported continued difficulty getting along with others, irritability, and remorse/guilt for actions in combat.  The Veteran also indicated that he enjoyed his solitary hobby of making walking canes.  Current symptoms were also noted to include weekly panic attacks, chronic sleep impairment, difficulty in establishing and maintaining effective social relationships, and difficulty adapting to stressful circumstances.  
During an April 2014 VA PTSD examination, the Veteran reported having been married for 19 years, but had been separated since 1998.  The examiner noted that the Veteran’s interpersonal relationships were “limited” as he only had a couple friends.  It was further noted that the Veteran had retired in 2011 because he was “having difficulty getting along with coworkers.”  Current psychiatric symptoms were noted to include depressed mood, anxiety, mild memory problems, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective social relationships, difficulty adapting to stressful circumstances, and a history of suicidal ideation.  It was also noted that the Veteran had been hospitalized for psychiatric problems in 2009 and continued to receive medication for his symptoms.  
VA treatment records include a May 4, 2015 VA emergency room treatment note where the Veteran complained of feeling stressed out, depressed, and hearing voices.  His psychological status at that time was noted as “suicidal” and the Veteran reported suicidal ideation over the weekend with worsening paranoia.  He also endorsed poor sleep, limited energy, poor concentration, and anhedonia.  
On May 5, 2015, the Veteran was admitted to a contract inpatient psychiatric care hospital.  In a May 11, 2015 VA mental health discharge note, it was indicated that, during his hospitalization, the Veteran attended and participated in groups.  The Veteran had positive interactions with staff and peers with improved mood, thoughts, and overall outlook.  He denied suicidal ideation, homicidal ideation, psychosis, or delusions.  
In a June 2015 VA mental health note, it was noted that the Veteran had been recently hospitalized due to suicidal ideation.  During the evaluation, the Veteran also reported having frequent flashbacks and nightmares, difficulty with crowds, and fleeting suicidal ideations.  
Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran’s PTSD more nearly approximates symptoms resulting in total occupational and social impairment for his period of hospitalization from May 5, 2015 to May 11, 2015.  During this time, the Veteran reported feeling depressed, and hearing voices.  His psychological status at that time was noted as “suicidal” and the Veteran reported suicidal ideation over the weekend with worsening paranoia.  He also endorsed poor sleep, limited energy, poor concentration, and anhedonia.  At the time of his discharge, on May 11, 2015, the Veteran was noted to have had positive interactions with staff and peers with improved mood, thoughts, and overall outlook.  He denied suicidal ideation, homicidal ideation, psychosis, or delusions.
For these reasons, the Board finds that, for the rating period from May 5, 2015 to May 11, 2015, a temporary rating of 100 percent for PTSD is warranted. 
As it pertaining to the remaining rating period on appeal (i. e., from April 2, 2013 to May 4, 2015, and from May 12, 2012 to the present), the Board finds that the Veteran’s PTSD disability did not more nearly approximate total social impairment so as to warrant a rating in excess of 70 percent.  The Board finds that weight of the lay and medical evidence shows that his symptoms do not demonstrate total 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; and memory loss for names of close relatives, or for the veteran’s own occupation or name.  See 38 C.F.R. § 4.130.
In reaching this conclusion regarding the degree of occupational and social impairment, the Board has considered all the Veteran’s psychiatric symptoms and impairment, whether or not the symptom is specifically listed in the rating criteria, considering such symptoms as “like or similar to” the symptoms in the rating criteria.  See Mauerhan, 16 Vet. App. at 442 (stating that the symptoms listed in VA’s general rating formula for mental disorders is 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, and that, without those examples, differentiating between rating evaluations would be extremely ambiguous); Vazquez-Claudio, 713 F.3d at 116-17 (the rating criteria under                     § 4.130 is “symptom-driven” and “a veteran may only qualify for a given disability rating under [this criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”).
With this in mind, the evidence shows that the Veteran’s overall picture is already adequately contemplated by the 70 percent rating assigned throughout the rating period (excluding the temporary total rating from May 5, 2015 to May 11, 2015).  The Veteran does experience disturbance of motivation and mood (depression and anxiety), and difficulty sleeping, but these symptoms are specifically contemplated in the 30, 50, and 70 percent rating criteria.  The same is true with the Veteran’s near-continuous depression, anxiety, difficulty in establishing and maintaining relationships, and occasional suicidal ideation, which are all symptoms contemplated under the 70 percent rating criteria.
Further, during the April 2012 VA psychiatric examination report, the Veteran indicated that he enjoyed his hobby of making walking canes.  In the April 2014 VA examination, the Veteran reported limited social relationships, but did indicate that he had some friends.  The examiner also stated that the Veteran was able to get along with other people.  The April 2012 VA examiner noted that the Veteran’s PTSD resulted in “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily,” as contemplated by a lower 30 percent rating.  The April 2014 VA examiner indicated that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity, as contemplated by a lower 50 percent rating. 
The Board finds that this does not rise to the level of total impairment.  In sum, and although the Veteran has been found to have some social isolation and decreased motivation, at no time during the appeal period have any examiners indicated that the Veteran’s psychiatric disorder has resulted in total social impairment.  For these reasons, the Board finds that a rating in excess of 70 percent for PTSD is not warranted throughout the rating period on appeal (excluding the temporary total rating from May 5, 2015 to May 11, 2015).  38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411.
The Board notes that it has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the increased rating issue on appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); Thun v. Peake, 22 Vet. App. 111 (2008).  After review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record as to the rating issues on appeal.  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); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”).  As such, the Board will not further address the question of extraschedular referral in the instant decision.

 
TDIU—Laws and Analysis
A total disability rating for compensation based on a TDIU 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, 3.34l, 4.16(a) (2017).  Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when a 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 Court has also held that VA has a “well-established” duty to maximize a claimant’s benefits.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993).  This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C.§ 1114.  See Bradley v. Peake, 22 Vet. App. 280 (2008).
The Court held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a veteran has a schedular total rating for a service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate).  See 38 U.S.C. § 1114 (s).  Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot.
As it pertains to the rating period from April 2, 2013 to September 2, 2014, the Veteran met the schedular criteria requirements under 38 C.F.R. § 4.16 (a). Specifically, the Veteran was service connected for PTSD, rated as 70 percent disabling; hearing loss, rated as 30 percent disabling; tinnitus, rated as 10 percent disabling; coronary artery disease, rated as 10 percent disabling; and a right ankle disability, rated as 0 percent disabling.  Therefore, for the rating period from April 2, 2013 to September 2, 2014, the Veteran had multiple disabilities ratable at a combined evaluation of 80 percent.  As such, the minimum schedular criteria for TDIU are met for this period.
Moreover, after a review of all the evidence, the Board concludes that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities were of sufficient severity to produce unemployability from April 2, 2013 to September 2, 2014.
The Veteran reported that he last worked full-time in 2011 due to his service connected PTSD disability.  His educational history includes completing two years of college.  See March 2013 VA Form 21-8940.
During the April 2014 VA PTSD examination, the examiner noted that the Veteran’s interpersonal relationships were “limited” and it was further noted that the Veteran had retired in 2011 because he was “having difficulty getting along with coworkers.”  
Moreover, a February 2013 VA heart examination report indicated that the Veteran’s coronary artery disease would impact his ability to work in that the disability made him become short of breath very easily.  
In a February 2011 VA audiological examination, the examiner indicated that the Veteran’s hearing loss would have “significant effects” on the Veteran’s occupation.  In this regard, it was noted that the Veteran had difficulty understanding conversation in a noisy situation or at a distance.  He also needed visual cues and frequent repetitions to understand conversation. 
Based on this evidence, in addition to the Veteran’s work history and educational level, and resolving reasonable doubt in his favor, entitlement to a TDIU is warranted for the rating period from April 2, 2013 to September 2, 2014.
Regarding the rating period beginning September 3, 2014, the Board concludes that the holding in Bradley is inapplicable and a potential TDIU claim is rendered moot.  Specifically, during the rating period beginning September 3, 2014, the Veteran has already been granted a 100 percent disability rating for his hearing loss disability, and has been granted an award of SMC based on additional service-connected disabilities independently ratable at 60 percent or more for the same time period.  Therefore, a TDIU claim is moot for the rating period beginning September 3, 2014.
 
 
E. BLOWERS
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Casadei, 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

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.