POSTTRAUMATIC STRESS DISORDER (PTSD)

P.M. DILORENZO · 2021 · Case ID: 21060930

GRANTED

Summary

The veteran, who served from August 1966 to July 1970, appeals the denial of an increased rating for PTSD and service connection for hypertension, as well as entitlement to TDIU. The Board reviewed the veteran's service treatment records, VA examination reports, private medical opinions, and the veteran's testimony. The veteran's PTSD was rated at 50 percent, and he sought an increased rating to 70 percent. Evidence included a March 2017 VA exam noting occupational and social impairment, and private opinions from a physician and psychiatrist in January and September 2017, respectively, describing severe symptoms and inability to work with others. The veteran testified in November 2020 about sleep difficulties, anxiety, memory issues, relationship problems, and frequent anger outbursts. The Board found the veteran's PTSD symptoms approximated the criteria for a 70 percent rating, granting the increased rating and resolving doubt in his favor. For hypertension, the veteran claimed it was secondary to PTSD. A private physician opined a definitive link between PTSD and hypertension, citing overactive nerve activity and blood pressure regulation. The Board found this sufficient for secondary service connection. Regarding TDIU, the veteran's PTSD, rated at 70 percent, alone rendered him unable to maintain substantially gainful employment since June 20, 2016, his last day of full-time work as a contractor. A private psychiatrist supported this, stating the veteran could no longer work with others. The Board granted TDIU from June 21, 2016, resolving doubt in the veteran's favor. Service connection for hypertension was granted, and the increased rating for PTSD and TDIU were also granted.

Rationale

PTSD symptoms approximate criteria for 70% rating; Occupational and social impairment with deficiencies in most areas; Suicidal ideation, difficulty adapting to stress, impaired impulse control, inability to maintain relationships; Doubt resolved in veteran's favor

Special Benefit

TDIU

Docket No.

17-30 113

Full Decision Text

Citation Nr: 21060930
Decision Date: 09/28/21 Archive Date: 09/28/21

DOCKET NO. 17-30 113
DATE: September 28, 2021

ORDER

Entitlement to a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) from December 20, 2015, forward, is granted.

Entitlement to service connection for hypertension, as secondary to service-connected PTSD, is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD alone from June 21, 2016, forward, is granted.

FINDINGS OF FACT

1. Throughout the appeal period, the Veteran's service-connected PTSD is manifested by occupational and social impairment with deficiencies in most areas.

2. The Veteran's hypertension is caused by his service-connected PTSD.

3. The Veteran's service-connected PTSD has prevented him from maintaining substantially gainful employment as of June 21, 2016.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating of 70 percent, but no higher, for PTSD have been met from December 20, 2015, forward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411.

2. The criteria for entitlement to service connection for hypertension as secondary to service-connected PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for entitlement to a TDIU based upon PTSD alone have been met from June 21, 2016, forward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1966 to July 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

A May 2014 rating decision, in pertinent part, denied entitlement to service connection for hypertension.

A March 2017 rating decision denied the Veteran's claims of entitlement to a disability rating in excess of 50 percent for PTSD and entitlement to a TDIU.

In November 2020, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file.

As a final preliminary matter, the Veteran had previously designated the Military Order of the Purple Heart as his representative. In February 2021, the Veteran submitted a new VA Form 21-22 appointing the Disabled American Veterans as his accredited representative. The Board recognizes this change in representation.

1. Increased Rating

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14.

In disability
assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14.

In disability rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran submitted a claim for an increased rating for his service-connected PTSD on December 20, 2016. His PTSD is evaluated as 50 percent disabling under 38 C.F.R. § 4.130, DC 9411. In pertinent part, 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id.

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 work like setting); and inability to establish and maintain effective relationships. A 100 percent rating requires 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.

Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002).

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). 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.
effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002).

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).

The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased disability rating claim is from one year before the claim was filed; in this case, January 25, 2016, one year prior to the Veteran's January 25, 2017, claim, until VA makes a final decision on the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

A January 2017 statement by the Veteran's private physician categorized his PTSD as severe. The physician stated the Veteran's psychiatric symptoms have been minimally affected by treatment and medication. See January 2017 J.S., M.D. Statement.

A March 2017 VA examination report reflects that the Veteran's PTSD symptoms consisted of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty establishing and maintaining relationships, and difficulty adapting to stressful circumstances. The Veteran reported that he lived with his wife from his fourth marriage, although they resided in separate parts of the house. He further reported seeing his children on special occasions and speaks to his brother several times a week. He stated that he was unemployed after he began taking a new medication which made him unable to operate a vehicle. The Veteran described that prior to leaving his job he was having arguments and altercations with people. He also stated that he had lost previous jobs after altercations with supervisors. The Veteran reported significant difficulty managing stress which causes him to be highly agitated and overwhelmed with angry outbursts of yelling, kicking and throwing things. The examiner noted the Veteran avoids crowds and large buildings. The examiner further stated the Veteran's symptoms were severe and he would have significant difficulty maintaining appropriate work relationships. The Veteran was noted to be pleasant and cooperative, but with an underlying agitation. He was further noted as being appropriately dressed and groomed. See March 2017 PTSD Disability Benefits Questionnaire (DBQ).

A September 2017 statement by the Veteran's private psychiatrist noted that the Veteran's anxiety-induced behavioral issues made him unable to work with other people. See September 2017 J.S., M.D. Statement.

VA treatment records reflect the Veteran's psychiatric symptoms consist of depression, anxiety, difficulty concentrating, irritability, nightmares, racing thoughts, survivor's guilt, anhedonia, hypervigilance, avoidance, and suicidal ideation. See Psychiatric Notes Dated May 1, 2018; August 28, 2018; November 19, 2018; January 22, 2019; June 18, 2019; September 17, 2019; November 19, 2019; February 24, 2020 (expressing suicidal ideation with no method, plan, or intent).

At the November 2020 hearing before the Board, the Veteran testified that he experiences trouble sleeping and anxiety. He further testified that he must check every door before going to bed and will recheck those doors when he wakes up in the middle of the night. He stated that he has to plan out his routes when he leaves the house, otherwise he will make a wrong turn and get lost. He testified that he often loses his train of thought and does not keep track of the date. Addressing his personal relationships, the Veteran noted that his wife has filed for divorce. He stated that he sees his children and grandchildren on birthdays and holidays but never initiates visits. The Veteran noted that he forgets the names of his grandchildren, but also noted that he does not see or speak to them often. He also stated that he has a relationship with his brother, but gets annoyed after speaking at length. The Veteran endorsed suicidal thoughts and a suicidal plan, which manifest more frequently around the holidays. He stated that he has not shared his suicidal thoughts with any previous treatment provider as it was too difficult to discuss. He also endorsed being easily irritable and quick to anger. See November 2020 Hearing Transcript.

Based on the forgoing, the Board concludes that the Veteran's PTSD symptoms interfere with most aspects of his life and that his disability picture is manifested by 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, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, difficulty in adapting to stressful circumstances (including work or a work like setting), impaired impulse control (such as unprovoked irritability with periods of violence), and the inability to establish and maintain effective relationships. Thus, pursuant to 38 C.F.R. § 4.7, and resolving all doubt in favor of the Veteran, as is required by law, the Board is granting the Veteran a rating of 70 percent, and no more, for his service-connected PTSD. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Although the March 2017 VA examiner found the Veteran's PTSD manifested in occupational and social impairment with reduced reliability and productivity, the examiner also classified his symptoms as severe. Further, the evidence of record shows that the Veteran is unable to establish effective relationships. The Board thus finds that the 70 percent rating is appropriate during the entire appellate period. 38 C.F.R. §§ 4.7, 4.126(a).

There is no evidence, however, that the Veteran's PTSD is manifested by symptoms similar in type and degree symptoms to gross impairment in thought processes or communication, 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 symptoms of the same type and degree. Moreover, there is no showing of total social impairment. Indeed, per the Veteran's testimony he reported having relationships with his children, grandchildren, and brother. Thus, a 100 percent rating is not warranted.

In summary, the preponderance of the evidence reflects that during the entire appellate period, since December 20, 2015, the Veteran's service-connected PTSD symptoms approximate the criteria for a 70 percent rating, and no more. Consequently, the claim for an increased rating for service-connected PTSD is granted. 38 U.S.C. § 5107(b).

2. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to
C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

The Veteran asserts that his hypertension is caused by his service-connected PTSD. See November 2020 Hearing Transcript. For the following reasons and bases, the Board finds that entitlement to service connection for sleep apnea have been met on a secondary basis.

The Board notes that the Veteran has been diagnosed with hypertension. See Undated Christ Hospital Physicians Statement, received by VA December 20, 2016.

In support of his claim, the Veteran submitted a statement by his private physician which opined that his hypertension was secondary to his PTSD. The physician explained that there is a definitive link between PTSD and the development of cardiovascular diseases, including hypertension. Further, PTSD results in overactive nerve activity, dysfunctional immune response, and activation of the renin-anglotensin system which controls blood pressure. Id.

In light of the medical evidence linking the Veteran's hypertension with his service-connected PTSD, and no evidence to the contrary, service connection is warranted for the Veteran's hypertension.

3. TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 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).

Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992).

Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363.

The Veteran has been service-connected for PTSD, rated as 70 percent disabling, during the entire appellate period. Based on his service-connected psychiatric disorder alone, the Veteran's claim for TDIU may be adjudicated on a schedular basis. See 38 C.F.R. §§ 4.16(a), 4.25; Rice, 22 Vet. App. at 455. Here, the evidence demonstrates that the Veteran's service-connected psychiatric disorder has rendered him unable to secure or follow a substantially gainful occupation as of June 20, 2016.

The Veteran's most recent employer reported that the Veteran last worked full
find employment. Van Hoose, 4 Vet. App. at 363.

The Veteran's most recent employer reported that the Veteran last worked full time as a contractor hauling jet fuel on June 20, 2016. He was terminated from his employment because he was taking a controlled substance (medication) to help control his PTSD. His medical card had been revoked by the Department of Transportation.

In support of his claim, the Veteran submitted a letter by his psychiatrist, which opined that he can no longer be employed due to his PTSD symptoms. The letter went on to state that the Veteran's last job as a commercial driver ended as he began taking a medication which was a federally controlled substance. Additionally, the psychiatrist opined that the Veteran was unable to work with other people. See September 2017 J.S., M.D. Statement.

The Board also notes that is a negative opinion of record, namely the March 2017 VA examination report. This report, however, relies on the premise that the Veteran's psychiatric symptoms, including frequent outbursts, forgetfulness, and high rates of absenteeism would not prevent him from maintaining employment. As stated above, the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363.

Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU due to PTSD alone is warranted as of June 21, 2016, the day following the Veteran's last day of full time employment. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to a TDIU prior to June 21, 2016 is not warranted, as the Veteran was employed full time until June 20, 2016.

P.M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. M. Stedman, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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