Citation Nr: 1752085 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 08-35 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from March 16, 2015. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities for the period prior to March 16, 2015. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran had active service in the Army from July 1960 to March 1969. The Veteran had service in the Republic of Vietnam, and his decorations include a Combat Infantryman Badge and Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for PTSD evaluated as 30 percent disabling, effective October 7, 2005. During the pendency of the appeal, a March 2012 Decision Review Officer Decision increased the rating from 30 to 50 percent, effective October 7, 2005. This action did not satisfy the Veteran's appeal. The Veteran had a hearing before the undersigned Veterans' Law Judge (VLJ) in March 2012. A transcript of that proceeding has been associated with the claims file. This case was before the Board in May 2012, when it was remanded for additional development. In a July 2013 decision, the Board granted the Veteran an earlier effective date of September 10, 1993 for the grant of service connection for PTSD. The Board remanded the claim to afford the Veteran initial AOJ consideration in assigning the initial rating for his PTSD for the period prior to October 7, 2005. In an October 2014 decision, the Board granted the Veteran an initial rating of 70 percent for PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In an October 2015 order, the Court vacated the October 2014 decision as it pertained to the denial of an initial rating for PTSD in excess of 70 percent and remanded the matter to the Board for further proceedings consistent with an October 2015 Joint Motion for Partial Remand (JMR). In particular, the Court stated that the Board did not consider pertinent medical evidence and provided a conclusory explanation to support the finding that the Veteran was not entitled to a 100 percent disability rating for his PTSD. The Court vacated the Board's October 2014 decision as it pertained to the denial of a rating in excess of 70 percent for PTSD and remanded it for readjudication. In a May 2016 rating decision, the RO granted the Veteran's claim of entitlement to TDIU. The effective date assigned for the Veteran's grant of TDIU was March 16, 2015. However, the Veteran requested an earlier effective date for his TDIU. In a June 2016 decision, the Board granted the Veteran a 100 percent rating for PTSD from September 10, 1993 to June 17, 2003, and denied a rating in excess of 70 percent from June 18, 2003 to March 16, 2015. The Board remanded the issues of entitlement to an increased rating in excess of 70 percent for PTSD from March 16, 2015, and entitlement to TDIU prior to March 16, 2015. In March 2017, the Board once again remanded the Veteran's claims to ensure prior remand directives were completed. The case has now been returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. For the entire period currently on appeal, the Veteran's PTSD manifested by symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, disturbances of motivation and mood, and suicidal ideation, most closely approximating occupational and social impairment with deficiencies in most areas. The preponderance of the evidence is against a finding of total occupational and social impairment. 2. The evidence is against finding that the Veteran, by reason of his service-connected disabilities alone, was precluded from obtaining or maintaining substantially gainful employment prior to March 16, 2015. CONCLUSIONS OF LAW 1. For the entire current period on appeal, the criteria for a disability rating in excess of 70 percent for PTSD have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.7, 4.21, 4.41, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an effective date earlier than March 16, 2015 for the grant of a TDIU have not been met. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Duties to Notify and Assist The current appeals arise from the Veteran's disagreement with the effective date and initial rating assigned. Courts have held that once service connection is granted the claim is substantiated and further appealable issues, such as the initial rating and effective date, are "downstream" issues and therefore, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his post-service treatment records and VA examination reports. The Veteran was provided a hearing before the undersigned VLJ in March 2012. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). These claims were remanded in June 2016 to obtain outstanding VA medical records, to request the Veteran submit a completed VA Form 21-4192 for each employer prior to May 2007, and to afford him a PTSD examination. In June 2016 and August 2016, VA medical records were obtained; however the Veteran did not provide completed VA Form(s) 21-4192. The Veteran was provided a VA PTSD examination in June 2016. In March 2017, the Board directed the RO to obtained VA medical records from July 2016 to present and request the Veteran submit VA Form 21-4192 for past employers. VA medical records were added in April 2017 and September 2017. Additionally, the RO twice requested the Veteran to submit completed VA Form(s) 21-4192, but in a July 2017 statement the Veteran's representative stated that they could not obtain personnel records from the Veteran's past employers. Accordingly, there has been substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008). Increased Rating - PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2017). Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and evaluating functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran seeks a rating in excess of 70 percent for PTSD, which is rated under Diagnostic Code 9411. The General Rating Formula for Mental Disorders provides, in pertinent part: 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.........70. 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 name.........100. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The Board has reviewed the VA examinations, pertinent treatment records, and statements from the Veteran pertaining to his PTSD. For the following reasons, the Board finds that the evidence of record is against a finding that the Veteran's PTSD manifests with symptoms more closely approximating total occupational and social impairment. According to a December 2015 mental health clinic note, the Veteran reported that his symptoms persisted but were more manageable, and that he was quite active with a number of volunteer activities in addition to his hobbies and interests, including with the Sheriff's Department and a Court Appointed Special Advocates program. Upon evaluation, the Veteran was neat, clean, and well-groomed. He maintained good eye contact and demonstrated normal speech. His mood was "more irritable," and his affect was appropriate. The Veteran's judgment and insight were intact, and his thoughts and perceptions were normal. The Veteran was alert and oriented by person, place, time, and situation throughout the interview. In a December 2015 statement appended to his VA Form 21-8940, the Veteran reported that his PTSD caused sleep disturbances and hypervigilance in public settings. It also caused his mind to race and rendered him unable to complete tasks in one sitting. The Veteran reported he was overwhelmed in stressful work environments and had to walk away for a couple hours before he was able to fully complete a task. He said his symptoms affected his everyday life and resulted in four divorces because he was unable to immediately understand others' reasoning. The Veteran also said his activities of daily living consist of staying at home with his wife, and that he was still on guard despite living an isolative life. The June 2016 VA PTSD examination report notes the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, disturbances of motivation and mood, suicidal ideation. The Veteran's grooming and hygiene were good. His mood appeared irritable and tense, and his affect was congruent. The Veteran's speech was normal, and thought processes were logical and goal directed. Reality testing was good, and the Veteran denied hallucinations and delusions. His insight and judgment were good. The Veteran admitted suicidal ideation, but denied homicidal ideation. There were no safety concerns present at time of interview. The examiner characterized the Veteran's PTSD as resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. VA treatment records through 2017 indicate the Veteran was not acutely homicidal, suicidal, or psychotic. In March 2017, the Veteran reported increased nightmares. He was noted to not have dysthymia or inappropriate affect, and a depression screen was negative. In August 2017, the Veteran reported he was not depressed and had no suicidal urges. He said sleep had been sporadic, but he otherwise had no recent changes. Based on the foregoing the Board finds the evidence is against a finding of total occupational and social impairment. Particularly persuasive to the Board is the Veteran's continued level of participation in volunteer activities, demonstrating his capacity to function in social and work-like settings. Moreover, the Veteran's communication and thought processes have been normal throughout the appeal period, he denied hallucinations and delusions, and has not been shown to present a threat to himself or others. Further, his PTSD has been characterized as resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. In summary, the Veteran's overall disability picture does not more closely approximate total occupational and social impairment. Therefore, a rating in excess of 70 percent for PTSD is denied. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. 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). TDIU Prior to March 16, 2015 The Veteran seeks entitlement to TDIU from either September 22, 1993, or from June 18, 2003. See July 2017 statement and October 2017 statement. The Board observes that the Veteran was in receipt of a total disability rating for PTSD from September 1993 to June 2003. The record contains no indication that the Veteran was unemployable due to his service-connected duodenal ulcer alone; thus the assignment of a TDIU for that period would result in double compensation. The Board will therefore consider whether entitlement to TDIU is warranted from June 18, 2003 to March 16, 2015. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of substantially gainful employment. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining entitlement to TDIU is whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). A January 2003 letter from Dr. J. Y. indicated that in the past year the Veteran had become an unpaid pastor for a small Baptist congregation. In June 2003 the Veteran reported he had gone to Missouri with the Red Cross disaster relief team after tornadoes damaged the region. He continued to work for the food bank and local Baptist Mission distributing donated food to needy families. VA treatment records dated in September 2005 state that the Veteran became an ordained minister in 2003 and was actively engaged in church work and recruiting food for the local food bank and missions. The records also indicated the Veteran had recently returned from a relief work with the Red Cross in Louisiana following Hurricane Katrina. A May 2006 VA PTSD examination report noted the Veteran stayed very busy working as a minister at his church, preaching each Sunday and performing various ministry tasks, as well as volunteering at a food bank. The examiner opined that the Veteran appeared to have a very low tolerance for frustration and difficulty dealing with stress, and had problems with concentration that would interfere with the ability to perform detailed and complex tasks. The examiner also noted that the Veteran appeared to have marked impairment in his ability to cope with the usual stresses encountered in competitive work. The examiner opined that the Veteran did not have a mental disorder that would prevent regular attendance in the workplace, but that the Veteran's PTSD symptoms could cause interruptions in a normal workday or workweek. In September 2006 the Veteran reported he traveled to Florida to perform rescue work following another hurricane. In October 2006 the Veteran discussed recent ministry work he performed at prisons in Virginia, and future plans to participate in relief efforts in Buffalo, New York following a snowstorm. In May 2007 the Veteran reported he had not returned for treatment due to being quite busy. He said he made a trip to Maine for a disaster rescue program and was busier with ministry work as he was now a co-pastor for a bigger church. In October 2007 the Veteran described how he found his work with the church rewarding, including his service with the church's boot camp; the clinician noted the Veteran was stable and functioning well as a minister. During a May 2010 VA PTSD examination, the Veteran reported he continued to work part-time as a minister for about 15 to 20 hours per week, and performed his job adequately. He also continued his volunteer work at a local food bank. The examiner noted that the Veteran's PTSD-related anger and irritability caused problems in past employment situations, but that more recently the Veteran was functioning generally adequately at his part-time minister job and with his food bank volunteering. In January 2011 the Veteran reported leading one of the largest food banks in the area in addition to his ongoing ministry work. The clinician indicated the Veteran's ministry and food bank work helped his PTSD symptoms considerably. During his March 2012 Board hearing, the Veteran testified that he had been working as a pastor for the past 3 years, averaging 20 hours per week. See March 2012 Hearing Transcript, pg. 6. The Veteran also testified that from 1993 to when he became eligible for age-related Social Security Administration (SSA) benefits, he worked part-time jobs, but could not hold a full-time job very well. Id. at 18. On a February 2015 VA Form 21-8940, the Veteran reported that he last worked full time in 1993, and indicated that his last job was with the Post Office in 1993. He did not list prior employment with the church from which he earned income. In October 2015, the Veteran's church returned a completed VA Form 21-4192. It indicated the Veteran began working for the church in May 2007 and that his employment ended in March 2015. During the last 12 months of his employment the Veteran earned $24,000, lost 12 days from work due to disability, and worked 20 hours per week. In response to whether any concessions were made by reason of age or disability, the Veteran's employer wrote "n/a," suggesting no concessions were made. In a March 2016 vocational report, Dr. C. B. opined that that the Veteran's PTSD alone prevented the Veteran from securing and following a substantially gainful occupation from mid-1993, and that the Veteran's part-time junior pastor work from 2007 to 2015 was of a sheltered nature. Dr. C. B. provided an overview of the Veteran's employment and treatment history, and opined that the Veteran's Global Assessment of Functioning (GAF) scores indicated the Veteran was occupationally negative or totally disabled throughout the appeal period. With respect to the sheltered work environment, Dr. C. B. reasoned that the senior pastor was tolerant and put no pressure on the Veteran in terms of work assignments, time commitments, and performance expectations. He also reported that the Veteran was forced to leave his job when the position was no longer "sheltered" due to the arrival of a new senior pastor who was less understanding of the Veteran's PTSD difficulties. An SSA earnings statement, received in July 2016, showed that the Veteran did not have earnings reported to SSA from 1996 to 2005. The document indicates the Veteran earned $958.16 in 2005, $2,717.70 in 2006, $11,825.60 in 2007, and $16,800 each year from 2008 through 2014, before earning $3,500 in 2015. Based on the foregoing, the Board concludes that the Veteran was not precluded from obtaining or maintaining substantially gainful employment prior to March 16, 2015. Significant to the Board was the Veteran's extensive volunteer work in a variety of environments. The record shows that the Veteran achieved increasing levels of responsibility within his church, including traveling to perform ministry work for a prison in Virginia, and later becoming responsible for a larger congregation. The Veteran also traveled to Missouri, Louisiana, Florida, New York, and Maine performing relief work with the Red Cross, and reported that he "thrived" on the stress. Moreover, the Veteran's work with foodbanks progressed to the point that he became the leader of one of the largest foodbanks in his area. The Veteran's capacity to successfully engage in these volunteer (and some paid) activities on such an extensive basis strongly suggests he was capable of performing work-like functions in stressful environments. The Board acknowledges Dr. C. B.'s report and the assertions of the Veteran and his representative regarding the Veteran's inability to work. Notably, Dr. C. B.'s opinion did not refer to any of the Veteran's non-church volunteer activities despite their prevalence in his VA medical records. Moreover, although Dr. C. B. cited the Veteran's reports regarding the nature of his church work as "sheltered," the February 2015 VA Form 21-8940 did not indicate any concessions were made for the Veteran due to his PTSD. To the extent that the Veteran's representative argued that the Veteran would be unable to obtain or maintain employment based on accommodations afforded him by the church, the Veteran's other volunteer work which he performed successfully shows he possessed the ability to engage in work-like activities. See July 2016 statement. For these reasons, the Board finds that the preponderance of the evidence is against entitlement to an earlier effective date for the grant of a TDIU. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017). ORDER From March 16, 2015, entitlement to a rating in excess of 70 percent for PTSD is denied. Entitlement to TDIU prior to March 16, 2015 is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs