Citation Nr: 18142825 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-24 981 DATE: October 16, 2018 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder with depressive disorder and bereavement is denied. Entitlement to a total disability rating based on individual unemployability from November 30, 2011 to November 8, 2016 is denied. FINDINGS OF FACT 1. The Veteran’s posttraumatic stress disorder with depressive disorder and bereavement was manifested by symptoms such as anxiety, depressed mood, suspiciousness, chronic sleep impairment, fatigue, irritability, and occasional suicidal ideation without plan or intent, all resulting in occupational and social impairment with deficiencies in most areas. 2. Prior to November 8, 2016, the Veteran’s service-connected disabilities did not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder with depressive disorder and bereavement have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a total disability rating for individual unemployability prior to November 8, 2016 have not been satisfied. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1994. 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder with depressive disorder and bereavement The Veteran is currently rated at 70 percent, but he asserts that this rating does not accurately depict the severity of his condition. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is rated under DC 9411, which is rated according to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted 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); inability to establish and maintain effective relationships.” Id. A 100 percent rating is warranted when there is “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.” 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. Throughout the period on appeal, the Veteran has alleged sleep impairment, depression, nightmares, anxiety, low motivation, and irritability, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He has reported seeing friends regularly and maintaining a relationship with his daughter, though recently the relationship has been distant. A 2012 statement from the Veteran’s sister reported that the Veteran had stopped going to see siblings, and that he would call often in the middle of the night when he could not sleep. The Veteran received VA examinations in October 2011, March 2012, October 2012, March 2014, and November 2016. The October 2011 VA examiner noted depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in adapting to stressful circumstances, and suicidal ideation. The Veteran reported inability to sleep at night and that his stressors were always on his mind. He reported having several friends he socialized with, a close relationship with his daughter, and some traveling. Overall, the examiner found the Veteran had 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. The March 2012 examiner noted difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The Veteran reported that he had just started seeing someone romantically and that he got along “so-so” with people outside of family. He also reported that he had left his job because things were changing, he had trouble with people not following orders, and that he could not get sufficient pay. The Veteran was fully oriented, and his thought content and processes were unremarkable. Overall the examiner found the Veteran had a mental condition which had been formally diagnosed but that symptoms were not severe enough to interfere with either occupational or social functioning. The October 2012 examiner noted depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The Veteran reported that he had started dating someone and the relationship was good, but that his relationship with his daughter was distant. Overall the examiner found the Veteran displayed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The March 2014 examiner noted anxiety and chronic sleep impairment. The Veteran was alert and fully oriented. His thought content and processes were unremarkable. There was no evidence of hallucinations or delusions. There was no observable impairment in attention, concentration, or memory. Overall the examiner found that a mental condition was formally diagnosed but that the symptoms were not severe enough to interfere with occupational and social functioning or to be associated with continuous medication. The November 2016 examiner noted occasional passive suicidal ideation, disturbing dreams, poor energy, poor motivation, irritability, and depression. The Veteran was dressed and groomed appropriately, fully oriented, displayed linear-like thought processes that were organized and coherent, and showed no evidence of hallucinations or delusional thought processes. The Veteran reported a distant relationship with his daughter. He stated that he had a few friends with whom he would meet regularly to watch sports. His stated hobbies were walking, watching sports, and yard work. Overall, the examiner found the Veteran had occupational and social impairment with reduced reliability and productivity. The Board finds that the Veteran’s symptoms most closely approximate the criteria for a 70 percent rating. The Veteran has chronic sleep impairment, depression, suicidal ideation, irritability, and difficulty adapting to stressful circumstances. To warrant a 100 percent rating his symptoms would need to be severe enough to cause total occupational and social impairment. Although the Veteran does not work, he has been able to maintain social relationships. At various points throughout the period on appeal he has dated, and he has consistently maintained friendships. He enjoys traveling and going to sporting events with friends. Although his relationship with his daughter has fluctuated, he is able to maintain contact. There is no evidence of symptoms such as hallucinations or delusions at any point. Although there is a report of suicidal thoughts, there is no evidence of persistent danger to self or others. In addition, nothing suggests an inability to perform activities of daily living. The Veteran’s symptoms, though significant, do not rise to the level of total occupational and social impairment. Therefore, a rating in excess of 70 percent is not warranted. The Board also notes that TDIU was granted by the AOJ effective November 8, 2016, based primarily on the Veteran’s PTSD symptoms. 2. Entitlement to a total disability rating based on individual unemployability from July 2011 to November 2016 Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extra-schedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16 (b). The 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). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran was granted TDIU with an effective date of November 8, 2016, which is the date of his most recent PTSD examination. Prior to November 8, 2016 the Veteran had a combined rating of 80 percent, with his PTSD with depressive disorder and bereavement rated at 70 percent. This satisfies the schedular requirement for a TDIU. The Veteran is service-connected for PTSD with depressive disorder and bereavement, postoperative repair of right shoulder dislocation (minor), right foot status post bunionectomy, and left foot status post bunionectomy with digital arthroplasty of proximal interphalangeal joints of second, third, and fourth toes. He has been in receipt of Social Security disability benefits since December 2010. Social security records indicate that the Veteran was granted disability benefits as his past relevant work as actually performed would be ruled out due to limitations on lifting due to his right shoulder disabilities. The Veteran’s application for TDIU indicates that he last worked in January 2011 as a security guard. He has completed one year of college, and various training while in the Air Force. His stated reason for leaving his job was that people did not treat him right and did not respect him as a security guard. He also indicated that the job was too stressful for him, as others were not performing the job properly and there were too many bosses. At the Veteran’s March 2012 examination for PTSD, he stated that he no longer works because he had trouble following orders and that the company was cutting back and was unable to pay him sufficiently. He stated that he does not “have to work now because I have disability compensation, and I’m not going to work for pennies.” The Veteran received a VA examination to evaluate his service-connected disabilities in October 2012. The examiner found that the Veteran’s foot condition and right shoulder disability do not prevent him from working, and that the Veteran was capable of sedentary to moderate duty employment. The examiner also noted that the Veteran indicated that in a typical day he will go for a two-mile walk, do household chores and yard work, and go for a drive. On the October 2012 examination for PTSD, the examiner opined that the Veteran’s PTSD and depressive disorder would not prevent him from working as he has logical thought processes, unimpaired judgment, and the ability to perform all personal and domestic activities of daily living. The Veteran received another examination for all service-connected disabilities in March 2014. The examiner noted the Veteran reported discomfort in both feet with prolonged standing or walking. However, the examiner opined that the Veteran’s bilateral foot condition does not impact his ability to work. The examiner stated the same regarding the Veteran’s right shoulder disabilities and his PTSD. The most probative evidence does not indicate that the Veteran was incapable of securing and following a substantially gainful occupation due solely to his service-connected disabilities prior to November 8, 2016. The Veteran’s own statements indicate that he stopped working in January 2011 due to frustration regarding his level of pay and respect received from coworkers. As his PTSD examinations throughout this period indicate that he was capable of interacting appropriately with others in social and occupational circumstances, the Board does not find that his difficulties interacting at work were due to his PTSD. Although the Veteran reported pain in his feet, he continued to walk multiple miles per day, and the examiners found that his foot condition should not impact his ability to work. The Veteran’s grant of disability benefits from Social Security was primarily due to his inability to lift. However, inability to lift does not preclude sedentary employment or other types of active employment which do not require lifting large amounts. Given the Veteran’s own statements regarding why he stopped working, and the consistent opinions of the VA examiners regarding the Veteran’s ability to work, the Board does not find that a TDIU is warranted prior to November 8, 2016. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel