Citation Nr: 1752711	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  09-11 625	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to service connection for a sleep disorder.

2. Entitlement to service connection for a cognitive disorder claimed as memory loss.

3. Entitlement to a rating in excess of 30 percent prior to June 28, 2011, a rating in excess of 50 percent from June 28, 2011, to September 7, 2012, and a rating in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD) with generalized anxiety disorder.

4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to September 7, 2012. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel


INTRODUCTION

The Veteran had active military service from December 1965 to September 1967. His awards and decorations include receipt of the Combat Medical Badge.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, that granted a 30 percent rating for psychiatric disability, effective from August 14, 2007, and denied service connection for sleep and lower back disorders and a cognitive disorder claimed as memory loss.

In January 2010, the Veteran testified at a hearing with the undersigned.

In March 2010, the Board remanded the Veteran's case for further development. 

In a May 2011 rating decision, the RO granted service connection for multilevel degenerative spondyloarthropathy with associated spinal stenosis of the lumbar spine. The RO's action represents a full grant of the benefits sought as to the claim for service connection for a lower back disorder. 

In its March 2010 remand, the Board referred the issue of entitlement to service connection for a heart disorder. In July 2012, the RO granted service connection for coronary artery disease.

In May 2013, the Board raised the issue of TDIU as an element of the claim for an increased rating for the service-connected psychiatric disability and remanded the Veteran's case again for further development. Rice v. Shinseki, 22 Vet, App, 447 (2009).

In an October 2014 rating decision, the RO granted an increased rating for PTSD with generalized personality disorder to 50 percent effective June 28, 2011, and 70 percent thereafter.

In an April 2017 rating decision, the RO granted TDIU, special monthly compensation based on scheduler housebound criteria, and basic eligibility to Dependent's Educational Assistance effective September 7, 2012.


FINDINGS OF FACT

1. The Veteran has sleep impairment as a manifestation of his service-connected PTSD.

2. The Veteran has memory loss as a manifestation of his service-connected PTSD.

3. From August 14, 2007, to June 13, 2011, the Veteran's PTSD was manifested by reduced reliability and productivity due to avoidance, difficulty establishing and maintaining effective work and social relationships, excessive worry, anxiety, irritability, depression, sleep impairment with nightmares, panic attacks and memory and concentration problems.

4. Since June 14, 2011, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas due to avoidance, inability to  establish and maintain effective relationships, excessive worry, anxiety, irritability, depression, sleep impairment with nightmares, panic attacks, memory and concentration problems, neglect of personal appearance and hygiene, and difficulty adapting to stressful circumstances.

5. The Veteran met the schedular criteria for a TDIU on August 14, 2007.

6. The evidence of record favors a finding that the Veteran was prevented from securing and following substantially gainful employment as a result of his service-connected disabilities as of June 14, 2011.

7. Prior to June 14, 2011, the evidence is against a finding that the Veteran's service-connected disabilities prevented the Veteran from securing and following substantially gainful employment.


CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for sleep impairment as a manifestation of the Veteran's service-connected PTSD have been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).

2. The criteria for entitlement to service connection for memory loss as a manifestation of the Veteran's service-connected PTSD have been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).

3. The criteria for a 50 percent rating for PTSD were met during the period from August 14, 2007, to June 13, 2011. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

4. The criteria for a 70 percent rating for PTSD were met since June 14, 2011. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

5. The criteria for a TDIU for the period from June 14, 2011, have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.16 (2017).

6. The criteria for a TDIU for the period prior to June 14, 2011, have not been met; 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Here, VA treatment records indicate the Veteran experiences sleep impairment and memory loss as a result of his service-connected PTSD. There is no other medical condition that has been associated with sleep impairment and memory loss. When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the claimant's favor with the symptoms in question attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Thus, service connection is warranted for sleep impairment and memory loss as a manifestation of PTSD. See 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102.

II. Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret 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. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a zero percent disability rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational or social functioning or to require continuous medication.

A 10 percent disability rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

A 30 percent disability rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent disability rating is warranted when 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent disability rating is awarded when 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 relationship. 

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 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (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. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (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 rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442.

The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and serves as useful tool in assessing the effect of mental disorders on occupational and social functioning. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)).

According to the pertinent sections of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), a GAF score of 61 to 70 indicates some mild symptoms or some difficulty social occupational or school functioning but that an examinee is generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994).

The Veteran was afforded a VA examination in October 2007. He reported thinking about his Vietnam experiences, chronic sleep problems, increased worrying, and increased irritability. The examiner noted his mood was agitated and his affect was constricted as he appeared tense, worried, and dysphoric. Sleep impairment was noted due to intermittent awakenings leaving him feeling unrested. He had poor social interaction related to his occupational functioning as a bus driver. The examiner noted a GAF score of 60.

The examiner found that the Veteran had reduced reliability and productivity due to mental disorder symptoms. The examiner noted the Veteran tended to withdraw and keep to himself, avoided interaction with his brother, and preferred to spend time with his wife only. He worried excessively and was preoccupied by stressors. His mood had been troubled, anxious, irritable, and down, and he felt unappreciated as a school bus driver.

In November 2007 VA treatment records, the Veteran was noted as alert, adequately groomed, and goal directed. He was able to give a coherent and adequate history despite anxiety and frustration expressed in his affect. Depressive symptoms continued to prevail, but no thought disorder. He denied thoughts of harm to self. He was cognitively oriented and had adequate insight and judgment. A GAF score of 60 was noted.

In an April 2008 VA treatment record, the Veteran reported anxiety that was tolerable enough to continue work as a part-time bus driver. He was dysphoric at times when reminded of Vietnam. Sleep was limited to 4 to 5 hours a night. A GAF score of 60 was noted.

In a May 2008 VA treatment record, the Veteran reported more depression and inability to sleep. A GAF score of 60 was noted.

In a June 2008 VA treatment record, the Veteran reported sleeping about 5 hours per night, depressive features, and rare breakthrough triggered panic attacks. A GAF score of 55 was noted.

In an August 2008 VA treatment record, the Veteran reported constant worry and rumination, to include whether he would be able to do his job as a bus driver. He anticipated bad things happening to him. He complained of short term memory problems. He slept about five hours and took cat naps.

In September 2008 VA treatment records, the Veteran reported increased anxiety, nightmares, irritability, restless sleep, increased bad memories of Vietnam, and felt at times he was "losing it." He reported sometimes he awakens and "doesn't know what day it is or what time it is." He also reported an increase in hyperarousal symptoms, had a difficult time maintaining concentration, had problems remembering things, was "spaced out", had low stress tolerance, and practiced avoidance. He also doubted his ability to drive the school bus.

In a January 2009 VA treatment record, the Veteran is noted as forgetful, unable to maintain a steady stream of thought, very distractible and had poor concentration.

The Veteran was afforded another VA examination in February 2009. The examiner noted his affect as sad and his mood as anxious and depressed. The Veteran had difficulty falling asleep, sleep was limited to 4 hours per night, was restless sleep, he was awoken by nightmares, and he did not sleep in the same bed as his wife due to past incidents of waking up and suddenly acting aggressively. Episodes of panic occurred approximately one per month. The year prior he had homicidal thoughts toward one of his wife's doctors, but had no episodes of violence. Motivation and mood were noted as being under normal limits. His remote memory was normal, recent memory was mildly impaired, and immediate memory was moderately impaired. He was forgetful and misplaced objects. 

His PTSD symptoms were noted as recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions; recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring; physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings, or conversations associated with the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; difficulty falling asleep; irritability or outbursts of anger; difficulty concentrating; and exaggerated startle response. These symptoms were noted to cause clinically significant distress or impairment in social, occupational or other important areas of functioning. The GAF score was 55.

The examiner noted deficiencies in thinking and mood; however, the examiner found there was only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to his PTSD symptoms because the Veteran reported he was able to manage his anxiety symptoms while working. The examiner further noted the Veteran was quite anxious and dysphoric while away from work.

In a June 2009 VA treatment record, the Veteran continued to report depressive features and a GAF score of 65 was noted.

In a July 2009 VA treatment record, the Veteran reported his depression and anxiety were controlled by his medication. A GAF score of 55 was noted.

At the January 2010 Board hearing, the Veteran reported a problem with remembering things, as well as an episode of global amnesia that occurred prior to the appeal period. He also reported he did not sleep more than 4 hours a night, was always tired, and dreamed about Vietnam. He stated he had not worked full-time since 1994, and currently worked as a bus driver 24-25 hours per week, earning $17.66 per hour.

In a January 2010 VA treatment record, the Veteran reported he felt someone was after him and trying to harm him all the time. He had disturbing dreams and awoke drained and confused. He reported sometimes he awoke and did not know the day or time. The sound of helicopters created intrusive thoughts of Vietnam and distressed feelings. He reported an increase in hyperarousal symptoms. He had increased difficulty maintaining concentration. He was afraid he would have to stop bus driving because he had a hard time maintaining focus on the road. He had problems remembering things and perceived himself as unfocused most of the time. He had little coping ability for stress, was unable to engage in any mature interpersonal relationships, and utilized avoidance strategies.

The psychologist opined that the Veteran was unemployable for gainful employment activity. He reasoned that minor challenges exceeded the Veteran's very modest stress and frustration tolerance limits and elicited mental confusion and hyperarousal which led to fight or flight behavior.

In a June 2010 VA treatment record, the Veteran continued to report depression and anxiety. A GAF score of 65 was noted. 

In an April 2011 VA treatment record, the Veteran reported problems with his patience, losing his temper, and yelling. He also reported he was giving up his bus stop due to missing stops and leaving kids. Concentration was noted as distractible and sleep, grooming, and hygiene were poor.

The Veteran was afforded another VA examination in June 2011. The Veteran reported the death of his wife in August 2010 and the end of his employment as a school bus driver on June 14, 2011. The examiner noted he was restless, his affect was constricted, and his mood was anxious, depressed, and dysphoric. His thought process was noted to have an overabundance of ideas and thought contents were ruminations. The examiner further noted a long history of sleep impairment with difficulty going to sleep and awakening throughout the night. Memory was normal.

PTSD symptoms were noted as recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions; recurrent distressing dreams of the event; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollections of the trauma; feeling of detachment or estrangement from others; sense of a foreshortened future; difficulty falling or staying asleep; difficulty concentrating; and hypervigilance. These symptoms were noted to be daily, moderate, and of long duration. A GAF score of 60 was noted. The examiner noted the effect of the Veteran's PTSD on his occupational and social functioning as reduced reliability and productivity.

In a September 2012 VA treatment record, the Veteran reported he felt he only had a couple years of life left, was very inactive, had no social life, and was avoidant and isolative. His mood was noted as depressed, concentration was poor, limited activity level, and sleep was poor. He could no longer work due to his cognitive disabilities.

The psychologist opined there was occupational and social impairment with deficiencies in most areas such as work and family relationships due to problems with thinking, chronic depression, panic attacks, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships.

In a March 2013 VA treatment record, the Veteran reported he was more of a loner. Activity level and sleep were noted as poor.

In an August 2013 VA treatment record, the Veteran reported sleep impairment and flashbacks of Vietnam. The psychologist noted similar findings to the September 2012 VA treatment records. The psychologist expanded on the Veteran's unemployability, and noted there was occupational and social impairment, with deficiencies in most areas such as work and family relationships. There were problems with poor focus and poor concentration). There was chronic depression, and angry feelings. He had panic attacks and depression affecting the ability to function appropriately, independently, and effectively. He had impaired impulse control, such as unprovoked irritability and explosive anger. There was neglect of personal appearance and hygiene. He had difficulty in adapting to stressful circumstances, including work or a work like setting and he had an inability to establish and maintain effective relationships. The GAF score was 40.

In a September 2013 VA treatment record, the Veteran reported he felt lonely. A GAF score of 55 was noted. 

In a November 2013 VA treatment record, the Veteran reported increased anxiety, nightmares, and irritability. He slept about 5 hours per night, but it was restless sleep. A GAF score of 55 was noted. 

In January and April 2014 VA treatment records, the Veteran reported his mood was stable. Mental status exams showed the Veteran was fairly well groomed, normal speech, euthymic mood, appropriate affect, linear and goal directed thought processes, and thought content was free of hallucinations and delusions.

In a September 2014 VA treatment record, the Veteran reported he continued to be dysphoric, anxious, irritable, and isolate. He also continued to have nightmares, which made his sleep restless, and he only slept about 5 hours per night.

Evaluation prior to June 14, 2011

The evidence clearly shows that the Veteran was moderately disabled as a result of his service-connected psychiatric disabilities during the time period from August 14, 2007, to June 13, 2011. He was shown to have reduced reliability and productivity due to avoidance, difficulty establishing and maintaining effective work and social relationships, excessive worry, anxiety, irritability, depression, sleep impairment with nightmares, panic attacks and memory and concentration problems. 

Although a 50 percent evaluation has been granted for the Veteran's PTSD, the Board finds that the evidence does not show the symptomatology required for a 70 percent rating under the rating schedule from August 14, 2007, to June 13, 2011. During this time, the Veteran did not manifest occupational and social impairment, with deficiencies in most areas. The Veteran continued to work and maintain close familial relationships. He did not report or exhibit suicidal ideation, obsessive rituals, problems with speech, near-continuous panic attacks or depression that affected his ability to function independently, appropriately, and effectively, and did not neglect his personal appearance and hygiene, which are listed as examples of the type, extent, and severity of symptoms warranting a 70 percent rating.

The Board also considered GAF scores assigned from August 14, 2007, to June 13, 2011. The GAF scores during this time reflect no more than moderate symptoms with moderate difficulty in social and occupational functioning, which is not consistent with a finding of occupational and social impairment with deficiencies in most areas required for a 70 percent scheduler rating under the criteria for evaluation of psychiatric disorders other than eating disorders.

As required by Mauerhan, the Board has looked at all the factors and evidence identified above to determine whether the Veteran has met or more closely approximated the criteria for a 70 percent rating from August 14, 2007, to June 13, 2011. However, when considering the overall evaluation of the examples which may support the 70 percent rating, the frequency, duration and severity of symptoms, the Veteran's capacity for adjustment, and the assessments of the Veteran's overall psychological, social and occupational functioning (GAF) scores, the Board must conclude that the Veteran's psychiatric disorder did not more closely approximate the criteria for a 70 percent rating from August 14, 2007, to June 13, 2011. 

In this respect, the Veteran, even at his worst, maintained familial relationships, and worked part-time as a school bus driver. Overall, from August 14, 2007, to June 13, 2011, his psychiatric disorder was not shown to manifest the type, extent and severity of symptoms demonstrating occupational and social impairment with deficiencies in most areas within the meaning of the rating schedule.

In so holding, the Board has generally found the statements and testimony of the Veteran to be truthful and credible evidence in support of this claim, which has been relied upon in awarding further compensation. However, even when taking into account this testimony, the Board finds that the criteria for a rating greater than 50 percent have not been met from August 14, 2007, to June 13, 2011. To the extent that the descriptions provided by the Veteran can be construed as supporting a higher rating still, the Board places greater probative weight to the clinical findings of the VA physicians who have greater expertise and training than the Veteran in evaluating the extent and severity of a psychiatric disability. There is no doubt of material fact to be resolved in his favor. 38 U.S.C. § 5107(b). As such, a rating of 50 percent from August 14, 2007, to June 13, 2011, is warranted.

Evaluation from June 14, 2011

The evidence clearly shows that the Veteran was severely disabled as a result of his service-connected psychiatric disabilities during the time period beginning June 14, 2011. He was shown to have occupational and social impairment with deficiencies in most areas due to avoidance, inability to  establish and maintain effective relationships, excessive worry, anxiety, irritability, depression, sleep impairment with nightmares, panic attacks, memory and concentration problems, neglect of personal appearance and hygiene, and difficulty adapting to stressful circumstances. 

The evidence does not show the symptomatology required for a 100 percent rating from June 14, 2011. During this time, the Veteran did not manifest gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, suicidal or homicidal ideation, an inability to perform activities of daily living, or memory loss for names of close relatives, own occupation, or own name, which are listed as examples of the type, extent, and severity of symptoms warranting a 100 percent scheduler rating.

The Board also considered GAF scores assigned from June 14, 2011. The Veteran's GAF scores during this time reflect no more than moderate to severe symptoms with some residual occupational and social capacity, which is not consistent with a finding of "total" occupational and social impairment required for a 100 percent schedular rating under the criteria for evaluation of psychiatric disorders other than eating disorders.

As required by Mauerhan, the Board has looked at all the factors and evidence identified above to determine whether the Veteran has met or more closely approximated the criteria for a maximum 100 percent rating from June 14, 2011. However, when considering the overall evaluation of the examples which may support the 100 percent rating, the frequency, duration and severity of symptoms, the Veteran's capacity for adjustment, and the assessments of the Veteran's overall psychological, social and occupational functioning (GAF) scores, the Board must conclude that the Veteran's psychiatric disorder did not more closely approximate the criteria for a 100 percent rating from June 14, 2011. 

In this respect, the Veteran, even at his worst, maintained familial relationships. He was not psychotic or out of touch with reality. Overall, from June 14, 2011, his psychiatric disorder was not shown to manifest the type, extent and severity of symptoms demonstrating occupational and social impairment with deficiencies in most areas within the meaning of the rating schedule.

In so holding, the Board has generally found the statements and testimony of the Veteran to be truthful and credible evidence in support of this claim, which has been relied upon in awarding further compensation. However, even when taking into account this testimony, the Board finds that the criteria for a rating greater than 100 percent have not been met from June 14, 2011. To the extent that the descriptions provided by the Veteran can be construed as supporting a higher rating still, the Board places greater probative weight to the clinical findings of the VA physicians who have greater expertise and training than the Veteran in evaluating the extent and severity of a psychiatric disability. There is no doubt of material fact to be resolved in his favor. 38 U.S.C. § 5107(b). As such, a rating of 70 percent beginning June 14, 2011, is warranted.

III. TDIU

The Veteran filed a claim for a TDIU in February 2013; however, the claim was raised as part of his earlier claim for an increased rating for a psychiatric disability. See Rice. He contends that his service-connected disabilities prevent him from working.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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). The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability. Id. Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

If the percentage requirements of 38 C.F.R. § 4.16(a) are not met, however, then a TDIU may still be granted on an extraschedular basis in cases when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). However, the Board cannot grant an award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service (Director) for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015).

Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Whether a veteran is capable of more than marginal employment must be considered even if the veteran is not working. See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016).

In this case, the Veteran became eligible for TDIU on a schedular basis under 38 C.F.R. § 4.16(a) effective August 14, 2007, at which time, his service-connected PTSD was rated 50 percent disabling, his dermatophytosis cruris with dermatophytosis corporis and onychomycosis pedis with dermatophytosis pedis was rated 30 percent disabling, and his multilevel degenerative spondyloarthropathy with associated spinal stenosis lumbar spine was rated 20 percent disabling. His combined rating as of that date was 70 percent. 

The Veteran was subsequently awarded service connection for coronary artery disease rated 30 percent disabling effective August 31, 2010. The Veteran also received an increased rating for PTSD to 70 percent disabling effective June 14, 2011. The Veteran's combined rating increased as of August 31, 2010, to 80 percent disabling, and on June 14, 2011, to 90 percent disabling.

The Veteran has a high school education, and received some training in welding. His previous work experience (outside his military service) has been limited to a welder, maintenance worker, and bus driver. He stopped working in June 2011. The Veteran has reported he left employment due to stress, inability to focus on the road, missing bus stops and leaving children, and back pain.

Although the Veteran was eligible for a TDIU on a schedular basis as of August 14, 2007, the Veteran did not stop working until June 2011. Additionally, the evidence is against a finding that at any point prior to his unemployment, his service-connected disabilities in and of themselves prevented him from both physical and sedentary employment.

A VA Form 21-8940 was obtained from the Veteran in March 2017, which shows the Veteran had been employed from September 2003 to June 2011 as a bus driver and worked an average of 25 hours per week earning $1500.00 a month. In the January 2010 Board hearing, the Veteran stated he earned $17.66 per hour as a bus driver. This is about $18,000.00 in a 12 month period, or $13,500.00 for a 9 month period if he did not drive a school bus during the summer.

In this case, the Veteran's earnings in 2011 ($18,000.00 or $13,500.00) exceeded the poverty threshold for that year ($11,702.00). See United States Census Bureau Poverty Thresholds 2011. There is no indication that he was employed in a family-run business, sheltered workshop, or other protected environment suggestive of marginal employment prior to the date of unemployment in June 2011. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...".

The Veteran meets the schedular criteria for TDIU for the period from August 14, 2007, to June 14, 2011, due to this 70 and 80 percent combined disability ratings; however, as a matter of law, TDIU cannot be granted when the evidence establishes that a veteran was gainfully employed. Here, the preponderance of the record indicates that the Veteran remained gainfully employed until June 2011. In light of the evidence indicating that the Veteran had sustained, gainful employment for the appeal period until June 14, 2011, and in the absence of any evidence or argument suggesting that his earned annual income ever failed to exceed the poverty threshold or that his actual employment was otherwise marginal in nature, the Board finds that the preponderance of the evidence shows that the Veteran was able to maintain substantially gainful employment until June 14, 2011. See 38 C.F.R. § 4.16; Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).

The evidence of record dated subsequent to June 14, 2011, to include VA examination reports and treatment records, reflects the Veteran became unable to secure and follow substantially gainful employment due to his service-connected disabilities the effective date of the Veteran's award for an increased rating to 70 percent for his PTSD. Resolving all doubt in the Veteran's favor, the Board will award TDIU as of the effective date of this award, June 14, 2011, but no earlier.

In an April 2011 VA treatment record, the Veteran reported problems with his patience, losing his temper, and yelling. He also reported he was giving up his bus stop due to missing stops and leaving kids. Concentration was noted as distractible and sleep, grooming, and hygiene were poor.

The Veteran was afforded another VA examination in June 2011. The Veteran reported the death of his wife in August 2010 and the end of his employment as a school bus driver on June 14, 2011. The examiner noted he was restless, his affect was constricted, and his mood was anxious, depressed, and dysphoric. His thought process was noted to have an overabundance of ideas and thought contents were ruminations. The examiner further noted a long history of sleep impairment with difficulty going to sleep and awakening throughout the night. Memory was normal.

PTSD symptoms were noted as recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions; recurrent distressing dreams of the event; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollections of the trauma; feeling of detachment or estrangement from others; sense of a foreshortened future; difficulty falling or staying asleep; difficulty concentrating; and hypervigilance. These symptoms were noted to be daily, moderate, and of long duration. A GAF score of 60 was noted. The examiner noted the effect of the Veteran's PTSD on his occupational and social functioning as reduced reliability and productivity.

In a September 2012 VA treatment record, the Veteran reported he felt he only had a couple years of life left, was very inactive, had no social life, and was avoidant and isolative. His mood was noted as depressed, concentration was poor, limited activity level, and sleep was poor. He could no longer work due to his cognitive disabilities.

The psychologist opined there was occupational and social impairment with deficiencies in most areas such as work and family relationships due to problems with thinking, chronic depression, panic attacks, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships.

Based on the above, the Board finds that although the Veteran became eligible for a TDIU award on a schedular basis in August 2007, unemployability due to service-connected disabilities was not factually ascertainable until his award for an increased rating to 70 percent for his PTSD became effective, June 14, 2011. Prior to that date, the Veteran was gainfully employed. Therefore, a TDIU prior to June 14, 2011, is denied, and referral of the matter for extraschedular consideration under the provisions of 4.16(b) is not warranted as the Veteran met the scheduler requirements for a TDIU for the entire appeal period.


ORDER

Service connection for a sleep disorder as a manifestation of PTSD is granted.

Service connection for memory loss as a manifestation of PTSD is granted.

A 50 percent disability rating for PTSD from August 14, 2007, to June 13, 2011, is granted.

A 70 percent disability rating for PTSD from June 14, 2011, is granted.

A TDIU is granted, effective June 14, 2011, but no earlier.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs