POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served from July 1969 to May 1971, appeals the denial of an increased disability rating for posttraumatic stress disorder (PTSD) with cannabis abuse disorder and the denial of total disability based on individual unemployability (TDIU). The Board reviewed the evidence, including a September 2021 rating decision, the veteran's NOD, and a March 2022 submission. The veteran's PTSD, currently rated at 50 percent, was assessed by a VA examiner in August 2021. The examiner noted symptoms such as recurrent distressing memories, dissociative reactions, irritable behavior, angry outbursts, reckless behavior, impaired judgment, and difficulty adapting to stressful circumstances, supporting a 70 percent rating. While the veteran denied suicidal ideation and maintained relationships, his credible lay statements and the VA examiner's findings regarding his mood, anxiety, sleep disturbances, and memory issues supported the increased rating. The Board found the evidence in approximate balance and resolved doubt in the veteran's favor, granting a 70 percent rating for PTSD. Regarding TDIU, the veteran claimed unemployability due to PTSD and chronic obstructive pulmonary disease (COPD), citing difficulty working due to authority issues and lack of motivation. The Board considered his limited work history, PTSD symptoms impacting his ability to work with others and adapt to stressful settings, and CAD limitations. Balancing the evidence and resolving doubt in his favor, the Board granted TDIU.

Rationale

Credible lay statements and VA exam findings support increased rating.; Symptoms approximate criteria for 70 percent rating.; Doubt resolved in veteran's favor.

Full Decision Text

Citation Nr: A22011684
Decision Date: 06/22/22	Archive Date: 06/22/22

DOCKET NO. 220311-228673
DATE: June 22, 2022

ORDER

Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) with cannabis abuse disorder is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, the service-connected PTSD with cannabis abuse disorder has been manifested, at worst, by symptoms productive of occupational and social impairment with deficiencies in most areas throughout the appeal period.

2. Resolving reasonable doubt in the Veteran's favor, the Veteran's combined service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to a 70 percent rating, but no higher, for PTSD with cannabis abuse disorder are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code (DC) 9411.

2. Resolving reasonable doubt in the Veteran's favor, the criteria for TDIU are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1969 to May 1971.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2021 rating decision by a Department of Veterans Affairs Regional Office (RO) under the Appeals Modernization Act (AMA).  

In March 2022, the Veteran submitted a VA Form 10182, Decision Review Request Board Appeal (Notice of Disagreement (NOD)) in response to the September 2021 AMA rating decision and elected Evidence Submission.  38 C.F.R. § 19.2(d).  In this regard, the Board notes that, under Evidence Submission, the Veteran can submit additional evidence within 90 days of his election.

Entitlement to a rating in excess of 50 percent for PTSD with cannabis abuse disorder.

The Veteran's service-connected PTSD with cannabis abuse disorder (hereinafter "PTSD") is currently rated 50 percent pursuant to 38 C.F.R. § 4.130, DC 9411.  He filed the current claim for an increased disability rating in July 2021.

Under these criteria, a 50 percent rating is assigned 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent rating is assigned for 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.  Id.

A 100 percent rating is assigned 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 or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name.  Id.

The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  The list of examples provides guidance as to
 rating is assigned 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 or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name.  Id.

The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  The list of examples provides guidance as to the severity of symptoms contemplated for each rating.  Id.  However, this fact does not make the provided list of symptoms irrelevant.  See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration.  Id. at 117.

Factual Background

In an August 2021 VA examination, the examiner diagnosed PTSD and cannabis use disorder, moderate, and noted it was not possible to differentiate what symptoms were attributable to each diagnosis.  During examination, the Veteran reported that he and his son lived together in the home that the Veteran owns.  He reported that his son was very supportive and very helpful in regard to helping him out around the house.  He reported he remained widowed; his wife died in 2009.  He reported that he responded best to familiarity.  The Veteran reported sleep disturbances; he reported thinking about his traumatic memories often but reported he did not have any nightmares.  He reported that he had not attended any group therapy, did not feel comfortable in group settings, and reported an interest in attending individual therapy instead.  The Veteran was not currently taking any psychiatric medications but reported that he continued to utilize marijuana as it helped him cope through distressing memories and nightmares.  There were no psychiatric hospitalizations, no suicide attempts, and no current suicidal ideation reported.  The Veteran reported that if he did not smoke marijuana daily, he would likely be nervous, very snappy, not sleeping, and have increased fighting with son.  

The Veteran reported that he was unemployed and had been unemployed since 1985.  He indicated he had always worked "odd jobs" ever since he discharged from the military; he reported he had a "pretty healthy dislike for authority after being sent to war" and reported that he never worked under a boss after leaving the military.  He reported he had chronic obstructive pulmonary disease (COPD) from smoking but reported that he continued to smoke marijuana every day.  He identified himself as a "marijuana addict" and reported he would likely not be able to get a job due to him failing drug test.  He reported that he also drank two glasses of liquor every evening, indicating his drinking and smoking was for self-medication purposes for his PTSD symptoms as well as leisure because he enjoyed how it made him feel.  The Veteran reported no desire or plan to stop smoking marijuana or to stop drinking alcohol; he reported it was more effective than prescription pills that he had tried in the past.

The examiner noted the Veteran experienced recurrent, involuntary, and intrusive distressing memories of the traumatic event; experienced dissociative reactions in which he feels or acts as if the traumatic events were recurring; and had intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic events.  The examiner noted the Veteran's avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic events.  The examiner noted the Veteran's persistent and exaggerated negative beliefs or expectations of oneself, others, or the world, persistent, distorted cognitions of the cause or consequences of the traumatic event that lead to the individual blame himself or other, persistent negative emotional state, markedly diminished interest or participation in significant activities, and persistent inability to experience positive emotions.

The examiner noted the Veteran's PTSD symptoms included increased irritable behavior and angry outbursts (with little to no provocation) typically expressed as verbal or physical aggression toward people or objects, reckless or self-destructive behavior, and sleep disturbance.  The examiner also noted the Veteran's depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short or long term memory, impaired judgment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting.  The examiner noted that during the examination, the Veteran was polite, open, and cooperative, was dressed casually and appropriately with good hygiene, had appropriate affect to content of his speech,
 activities, and persistent inability to experience positive emotions.

The examiner noted the Veteran's PTSD symptoms included increased irritable behavior and angry outbursts (with little to no provocation) typically expressed as verbal or physical aggression toward people or objects, reckless or self-destructive behavior, and sleep disturbance.  The examiner also noted the Veteran's depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short or long term memory, impaired judgment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting.  The examiner noted that during the examination, the Veteran was polite, open, and cooperative, was dressed casually and appropriately with good hygiene, had appropriate affect to content of his speech, had logical and organized thought process, and was alert and oriented to time, person, place, and situation.  There was no delusional thought content and no evidence of responding to internal stimuli noted.  Speech and motor activity were within normal limits.  His memory, attention, and concentration appeared intact.  

VA treatment records from 2020 to 2021 consistently noted the Veteran was alert and oriented and had denied suicidal ideations on suicide screenings.  See July 2021 CAPRI and September 2021 CAPRI.  

In a March 2022 correspondence, the Veteran reported heightened anxiety and chronic sleep impairment with increased nightmares due to quitting cannabis use.  He reported depressed mood that was caused by the chronic sleep loss, difficulty working due to hating authority, difficulty with stressful circumstances in not being able to adapt to unforeseen negative problems, difficulty adapting to work because of lack of motivation to make money to the detriment of his family, uncontrollable mood swings, and memory loss, to include forgetting to complete tasks, also in part due to lack of motivation.  He reported that he was an intolerant person and that he had disowned his grandson who is a service member because he could not tolerate his behavior and the sadness.  See March 2022 Correspondence.  

Analysis

The Board acknowledges initially that, for the entirety of the relevant period on appeal, many of the Veteran's service-connected PTSD symptoms do not approximate the criteria for a disability rating greater than 50 percent.  For example, there was no indication that his orientation, alertness, speech, and linear thought process were abnormal.  His grooming and attire have been noted as appropriate and he has consistently denied suicidal ideation.  This weighs against finding that the service-connected PTSD symptoms result in deficiencies in most areas.  However, his credible complaints in lay statements regarding his increased depressed mood and anxiety, his chronic sleep impairment, and his uncontrollable mood swings supports entitlement to a 70 percent rating for PTSD.  The Board further highlights the August 2021 VA examiner's finding of the Veteran's recurrent, involuntary, and intrusive distressing memories of the in-service traumatic events, dissociative reactions in which he feels or acts as if the in-service traumatic events were recurring, increased irritable behavior and angry outbursts (with little to no provocation) typically expressed as verbal or physical aggression toward people or objects, reckless or self-destructive behavior, impairment of short or long term memory, impaired judgment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work like setting also supports entitlement to a 70 percent rating.

Nevertheless, there is no indication that the Veteran experienced symptoms of similar frequency, severity, and duration as is required for a disability rating greater than 70 percent at any time during the appeal period.  See also Vazquez-Claudio, 713 F.3d 112.  The medical and lay evidence does not indicate that the Veteran is a persistent harm to himself or others, he experienced persistent delusions or hallucinations, exhibited gross impairment in thought processes or communication, had grossly inappropriate behavior, had memory loss for names of close relatives, own occupation, or own name, or was disoriented to time or place.  The Board notes the Veteran maintained a relationship with his wife until her death in 2009 and maintains a positive relationship with his son and lives together with him.  Moreover, the August 2021 VA examiner has not found, and the evidence of record does not show that, the Veteran's PTSD symptoms result in total occupational and social impairment.  In summary, because a state of approximate balance has been reached as to the issue of entitlement to an increased rating for PTSD, and after resolving any reasonable doubt in the Veteran's favor following a holistic analysis of the evidence, a 70 percent rating, but no higher, throughout the appeal period for PTSD is granted.

TDIU

The Board also notes that the Veteran raised the claim of entitlement to a TDIU as related to his PTSD during the pendency of the appeal.  The Veteran reported that he would likely not be able to get a job due to him failing a drug
 2021 VA examiner has not found, and the evidence of record does not show that, the Veteran's PTSD symptoms result in total occupational and social impairment.  In summary, because a state of approximate balance has been reached as to the issue of entitlement to an increased rating for PTSD, and after resolving any reasonable doubt in the Veteran's favor following a holistic analysis of the evidence, a 70 percent rating, but no higher, throughout the appeal period for PTSD is granted.

TDIU

The Board also notes that the Veteran raised the claim of entitlement to a TDIU as related to his PTSD during the pendency of the appeal.  The Veteran reported that he would likely not be able to get a job due to him failing a drug test from marijuana use that he claimed he self-medicated with to treat his PTSD symptoms.  See August 2021 C&P Exam.  He also reported his PTSD resulted in difficulty working due to hating authority and difficulty adapting to work because of lack of motivation to make money to the detriment of his family.  See March 2022 Correspondence.  As such, the issue of entitlement to a TDIU was raised by record as part of the PTSD increased rating claim under Rice v. Shinseki, 22 Vet. App. 447. 453-54 (2009).  The issue of entitlement to a TDIU is therefore part and parcel of the underlying increased rating appeal.  

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.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent.  38 C.F.R. § 4.16(a).

The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Factors such as employment history and educational and vocational attainments are to be considered.  Id.  For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).  The Court recently held that "substantially gainful occupation" contains both economic and noneconomic components.  Ray v. Wilkie, 31 Vet. App. 58 (2019).  The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.  Id.  The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation.  Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

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).

In this case, as a result of the above decision, the Veteran now has the following service-connected disabilities: PTSD (rated at 70 percent); coronary artery disease (CAD) (rated at 60 percent); bilateral tinnitus (rated at 10 percent); and bilateral hearing loss (rated as noncompensable).  As the Veteran's PTSD is now rated at 70 percent, schedular requirements for a TDIU are met throughout the appeal period.  The question remaining is whether the Veteran's service-connected disabilities renders him incapable of participating in a substantially gainful occupation.

Here, a balance of the evidence shows the Veteran's service-connected PTSD and CAD substantially impacts his ability to secure and engage in employment at any exertional level.

The Veteran reported on his April 2018 VA Form 21-8940, Veteran's Application for Increase Compensation Based on Unemployability, that he is too disabled to work due to his service-connected PTSD and CAD and that he last worked full-time in the 1980s. 
 as noncompensable).  As the Veteran's PTSD is now rated at 70 percent, schedular requirements for a TDIU are met throughout the appeal period.  The question remaining is whether the Veteran's service-connected disabilities renders him incapable of participating in a substantially gainful occupation.

Here, a balance of the evidence shows the Veteran's service-connected PTSD and CAD substantially impacts his ability to secure and engage in employment at any exertional level.

The Veteran reported on his April 2018 VA Form 21-8940, Veteran's Application for Increase Compensation Based on Unemployability, that he is too disabled to work due to his service-connected PTSD and CAD and that he last worked full-time in the 1980s.  He reported self-employment as a sign installer from 1988 to 2002.  He reported he had completed one year of college and that he was retired.

In an April 2011 VA examination, the examiner noted the impact of the Veteran's hearing loss and tinnitus on his occupation and daily activity was difficulty hearing and understanding.  See April 2011 C&P Exam.

In an April 2011 VA examination, the Veteran reported that he worked as a painter from 1976 to 1982 but that during the employment, he had problems following orders.  He indicated that he was fired and subsequently started working on his own, as a painter.  He reported that his unemployment was due, primarily, to the effects of his mental condition because he resented or was suspicious of authority figures.  See April 2011 C&P Exam.  

In a January 2018 VA examination, the examiner noted the impact of Veteran's service-connected heart condition on his ability to work is fatigue, which affected sedentary and physical employment by interfering with energy levels.  See January 2018 C&P Exam.  

A May 2018 VA examination noted the Veteran could not do strenuous activity due to his service-connected CAD.  See May 2018 C&P Exam.

In a December 2019 VA examination, the Veteran reported that he has not worked for the past eight years before which time he worked irregularly due to the nature of his work, sign painting, and his preference for working as contractor rather than as an employee.  See December 2019 C&P Exam.

In a January 2020 VA examination, the examiner noted the Veteran's service-connected heart condition impacted his ability to work.  Specifically, the examiner noted his heart condition caused difficulty with working on large billboards, with climbing, and with fine motor skills.  See January 2020 C&P Exam.

The question of whether an individual is able to engage in substantial gainful activity must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.  Moore v. Derwinski, 1 Vet. App. 356, 359 (1991).

In this case, in light of the Veteran's limited work history in mainly sign painting and installation, which appear to have involved occupations requiring attention to detail, physical exertion, and fine motor skill use, the Board finds that the Veteran's service-connected disabilities, to include CAD and PTSD, would be expected to materially interfere with his ability to engage in the type of work for which he has training and work experience.  In particular, his ongoing depression, anxiety, sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, impaired judgement, irritable behaviour and angry outbursts, and distrusts of authority, as noted in the August 2021 VA examination, would reasonably be expected to interfere with his ability to pursue an occupation requiring attention to detail, employment with others, as well as self-employment.  His PTSD symptoms would further limit his ability to complete tasks in a timely manner, establish work/social relationships, and be consistent, reliable, or productive.  His physical limitations due to his service-connected heart condition would reasonably interfere with his ability to pursue an occupation requiring physical exertion and fine motor skill use as noted in the January 2020 VA examination.  

The Board acknowledges the December 2019 and January 2020 VA opinions, respectively, finding that there were no job related difficulties secondary to his service-connected mental health issues and the Veteran's service-connected CAD limited the Veteran to sedentary employment.  See December 2019 C&P Exam and January 2020 C&P Exam.  However, the Board notes that the Veteran's PTSD symptoms have since worsened, as indicated above.  Additionally, the December 2019 and January 2020 VA opinions did not contemplate the impact of the service-connected disabilities in combination on his ability to obtain and maintain substantially gainful employment
 an occupation requiring physical exertion and fine motor skill use as noted in the January 2020 VA examination.  

The Board acknowledges the December 2019 and January 2020 VA opinions, respectively, finding that there were no job related difficulties secondary to his service-connected mental health issues and the Veteran's service-connected CAD limited the Veteran to sedentary employment.  See December 2019 C&P Exam and January 2020 C&P Exam.  However, the Board notes that the Veteran's PTSD symptoms have since worsened, as indicated above.  Additionally, the December 2019 and January 2020 VA opinions did not contemplate the impact of the service-connected disabilities in combination on his ability to obtain and maintain substantially gainful employment, to include consideration of his employment history, especially with the increased severity of his service-connected PTSD.  

Ultimately, a TDIU claim is not purely a medical question.  Here, the Board has considered both the relevant and current medical evidence as well as the non-medical evidence such as work history and lay statements.  Given the occupational impairment stemming from the Veteran's service-connected disabilities, his limited educational attainment, and lack of transferrable jobs skills, after weighing all the evidence of record and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation.  

 

 

L. BARSTOW

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Cheng, 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.