Citation Nr: 18148252 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-06 946 DATE: November 7, 2018 ORDER Entitlement to increased initial rating for post-traumatic stress disorder, evaluated as 50 percent disabling prior to March 19, 2018, is denied. Entitlement to rating for post-traumatic stress disorder of 70 percent, but no higher, as of March 19, 2018, is granted. Entitlement to a totally disabled rating due to individual unemployability, is denied. FINDINGS OF FACT 1. From January 16, 2013 to March 18, 2018 the Veteran’s posttraumatic stress disorder was not manifested by occupational and social impairment with deficiencies in most areas. 2. Since March 19, 2018, the Veteran’s posttraumatic stress disorder more nearly approximated occupational and social impairment with deficiencies in most areas, but it has not been manifested by total occupational and social impairment. 3. Prior to March 19, 2018, the Veteran did not meet the schedular requirements for a total disability rating based on individual unemployability. 4. Since March 19, 2018, the Veteran has been service connected for post-traumatic stress disorder, evaluated at 70 percent disabling, and for osteochondrosis dissecans of the left ankle, evaluated at 10 percent disabling. The combined rating since March 19, 2018, has been 70 percent. 5. The preponderance of the competent and credible evidence of record indicates that the Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to March 19, 2018, the criteria for assignment of a disability evaluation in excess of 50 percent for post-traumatic stress disorder were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. Since March 19, 2018, the criteria for a 70 percent rating for post-traumatic stress disorder, but no higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to total disability due individual unemployability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2004 to July 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A claim of entitlement to a total disability rating due to individual unemployability is part of an increased rating claim when such a claim is raised by the record. Rice v. Shinseki, App. 447 (2009). In January 2018, the Veteran submitted a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), asserting that he was unemployable due to his post-traumatic stress and ankle disorders. As the record raised a question of whether the Veteran is unemployable due to service-connected disability, entitlement to a total disability rating due to individual unemployability is part of the increased rating matter before the Board. With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Increased rating Post-traumatic stress disorder prior to March 19, 2018 The Veteran contends that the rating for his post-traumatic stress disorder, since January 16, 2013, does not adequately reflect the severity of that disorder. Therefore, he maintains that an increased rating is warranted. Post-traumatic stress disorder is rated in accordance with the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for posttraumatic stress disorder 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if 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 own name. Id. In determining the appropriate disability evaluation to assign, the primary consideration is not only for the veteran’s symptoms, but how those symptoms impact his occupational and social impairment. A veteran need not have all, most, or even some, of the enumerated symptoms to award a specific rating, 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. Nevertheless, since all ratings in the general rating formula are associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 1112 (Fed. Cir. 2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the course of an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505. Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran filed his claim for an increased rating related to his post-traumatic stress disorder in January 2013. The Veteran was afforded VA examination for post-traumatic stress in October 2013. During the examination the Veteran was accompanied by his wife since the appellant tended to minimize his problems. Following the examination the examiner found that his occupational and social impairment was best described by the 10 percent disabling level. The Veteran reported good relationships with his children. He reported a problematic relationship with his second wife, to include violence and physically abusive behavior at times. The Veteran has a bachelor’s degree prior to the military and held several different short terms jobs prior to joining the military. At the time of the examination he was working as a junior high math teacher. The Veteran reported depressed mood, anxiety, difficulty establishing and maintaining effective work and social relationships, and impaired impulse control. The Veteran’s wife acted as the corroboration of his post-traumatic stress disorder stressors. She also reported the appellant’s constant desire to quit work when faced with stress. The appellant reported a pertinent substance abuse history that included one or two alcoholic drinks daily, as well as the use of about one marijuana joint daily. The Veteran’s symptoms due to posttraumatic stress disorder included a depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, an inability to establish and maintain effective relationships, and impaired impulse control with periods of unprovoked violence. He did report suffering from survival guilt. The appellant denied suicidal ideation, obsessional rituals which interfered with routine activities; there was no evidence of intermittently illogical, obscure, or irrelevant speech; there were no reports of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; and no evidence of either spatial disorientation, or a neglect of personal appearance and hygiene The Veteran underwent another examination in January 2016. This examination noted symptoms that have included the Veteran experiencing a combination of the following: distressing dreams, distressing memories, an avoidance of, or efforts to avoid, external reminders that arouse memories, thoughts, or feelings associated with events; a diminished interest or participation in significant activities; feelings of detachment or estrangement from others, irritable behavior, hypervigilance, and sleep disturbance. Features of his posttraumatic stress disorder included social withdrawal, agitation, anxiety, a sense of hostility, interacting with others in an abrasive or brusque manner, and depressive symptoms. He was also noted to show evidence of a depressed mood, anxiety, suspiciousness, chronic sleep impairment, to suffer from disturbances of motivation and mood, and difficulty adapting to stressful circumstances. A history of suicidal ideation was noted, although with none were noted at the time of the examination and there was no history of any reported attempts at suicide. The examiner categorized the Veteran as being occasionally stressed by his environment with some agitation noted and intermittent periods lacking motivation to complete tasks and participate in activities. He opined that the claimant appeared to be exhibiting mild to moderate limitations in the areas of social interaction and adaptation. He was also judged to exhibit mild limitations in the areas of concentration, persistence, and pace. The Veteran reported no significant issues with driving, maintaining hygiene, daily chores, or interacting with others. The examiner concluded that the Veteran most closely met the minimum diagnostic of post-traumatic stress disorder with mild to moderate limitations in the areas of social interaction. The Veteran was employed as a salesman and most recently as a reverend. The examiner used phraseology consistent with a 30 percent rating for posttraumatic stress disorder in evaluating the impact of this disorder. Mental status examination revealed good eye contact, logical and goal-directed speech, an appropriate affect, no evidence of any psychotic process, no evidence of suicidality or homicidal ideation, no cognitive deficit, no memory deficit, positive insight, and unimpaired judgment. Based upon VA medical records and the VA examination report, the Board finds that a rating in excess of 50 percent rating is not warranted for the period from January 16, 2013 to March 18, 2018. The preponderance of the evidence is against finding occupational and social deficiencies in most areas. Notwithstanding a history of abusive behavior, the Veteran could maintain a relationship with his wife, and did not demonstrate deficiencies in memory or thinking. While the Veteran reported prior suicidal and homicidal ideation during VA examination, VA medical records indicate the Veteran consistently denied past or present suicidal or homicidal ideation. There was no evidence of obsessional rituals which interfered with routine activities, no speech problems, no evidence that panic or depression affected his ability to function independently, appropriately and effectively; and no evidence of spatial disorientation, or a neglect of personal appearance and hygiene. Therefore, the Board finds that a 70 percent was not warranted. Vazquez-Claudio v. Shinseki, 713 F. 3d 112 (Fed. Cir. 2013) (a 70 percent rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency, or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). An increased rating is denied for the period between January 16, 2013 and March 18, 2018. Since March 19, 2018 The Veteran was afforded a VA examination on March 19, 2018. The examiner opined that the Veteran’s occupational and social impairment had worsened since his last examination and was now deficient in most areas, such as work, school, family relations, judgement, thinking and mood. His symptoms had worsened, although there had been no additional diagnosis. The examiner noted that the Veteran had not worked since April 2017. The examiner noted “Since the last exam, the claimant has experienced an increase in (posttraumatic stress disorder) symptoms. He has been fired from (two) jobs and prematurely quit another job due to anger and performance problems. Recently a friend died and the claimant’s symptoms have exacerbated.” The Veteran had a job for two weeks and had problems with his supervisor. He had recently divorced from his second wife and was homeless for the last year. The Veteran had anger problems which precluded effective communication with coworkers, along with poor concentration and difficulty understanding complex instructions. The examiner also noted that a non-service connected shoulder injury was partially responsible for the Veteran not being able to work. The examiner noted that as of the time of the examination the appellant was no longer homeless as he had recently been helped secure a place to live by the Veteran’s Administrative Support Housing. In light of the March 19, 2018 VA examination findings, and after resolving reasonable doubt in favor of the Veteran, the Board finds that a 70 percent rating is warranted since the date of that examination. The preponderance of the evidence is, however, against finding entitlement to a 100 percent rating since it does not show total occupational and social impairment. The Veteran has maintained a relationship with his mother, and did not demonstrate deficiencies in memory or thinking. VA medical records indicate the Veteran consistently denied past or present suicidal or homicidal ideation. The evidence also does not show total occupational and social impairment as the Veteran also maintains a social relationship with some of his children and there is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any rating higher than 70 percent, but not higher. Individual unemployability Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) 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). Entitlement to a total disability rating for compensation based on individual unemployability requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching a determination, the central inquiry is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's current service-connected disabilities are posttraumatic stress disorder and osteochondrosis dissecans of the left ankle. Prior to March 19, 2018, the Veteran's combined service-connected disability rating was 60 percent. As of March 19, 2018, the Veteran’s combined service-connected disability rating is 70 percent. Prior to March 19, 2018 the Veteran did not meet the schedular requirements for entitlement to individual unemployability. 38 C.F.R. § 4.16. Thus, he did not meet the schedular criteria for a total disability rating based on individual unemployability under 38 C.F.R. § 4.16 (a). Nevertheless, a Veteran may be entitled to a total disability rating based on individual unemployability if it is established that he is unable to secure or follow substantially gainful employment as a result of the effects of the service-connected disabilities. 38 C.F.R. § 4.16 (b). Therefore, the Board must determine whether the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment, or work that was more than marginal, which permitted the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Throughout the relevant appeal period, the evidence of record does not reveal factors outside the norm resulting in unemployability. During the appeal period, the Veteran has not shown that his service-connected disabilities alone have so significantly impaired his functional capacity that he cannot find at least some job in the national economy that qualifies as substantially gainful employment. VA examiners found that the Veteran’s post-traumatic stress disorder symptoms decreased work efficiency, but did not find the Veteran unable to work. While the objective evidence shows that the Veteran’s post-traumatic stress disorder would interfere with his ability to function in certain occupational environments, the evidence also demonstrated that with limitations he could still obtain and follow substantially gainful employment. The Veteran has completed college as well as graduate school, and he has occupational skills in several areas. Overall, the Board finds that the evidence during this appeal period is against finding that the Veteran’s service-connected disabilities alone cause a significantly diminished level of functioning to the point where the Veteran is unable to work. The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent the service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment. Therefore, as the Veteran has not provided any competent and credible evidence that his service-connected disabilities, either singly or combined, prevent him from securing or following any substantially gainful employment, the Board finds that referral for extraschedular consideration is not appropriate, and the claim is denied. As of March 19, 2018, the assigned combined evaluation of 70 percent for the Veteran’s service-connected disabilities meet the criteria for schedular consideration of a total disability rating based upon individual unemployability. See 38 C.F.R. § 4.16 (a). However, while the Veteran meets the schedular criteria for a total disability evaluation based on individual unemployability, he is not entitled to such a rating. On his claim form from February 2018, the Veteran stated that he could not work due to his post-traumatic stress disorder and left ankle. The Veteran has a long history of intermittent employment, extending beyond his initial military service. He has obtained both a bachelor’s and a master’s degree, along with various other educational certifications. The Veteran is also currently pursuing relator credentialing to allow him work in realty. The Veteran’s most recent mental health examination indicates that his reason for leaving his most recent employment was due to a shoulder condition that did not allow him to carry his tools for work, along with anger and performance problems. The Veteran is not service connected for a shoulder condition and is receiving appropriate compensation for the impact of his service connected disorders. The Veteran’s most recent employer also submitted a VA form 21-4192 employment information form which stated that the appellant was let go due to a lack of work experience required by the company. With his advanced degrees and varied work experience, the Veteran should be able to secure a fairly isolated, sedentary job. A sedentary position would negate any interference with employment due to his ankle disability and an isolated work environment would allow for reduced interaction with coworkers, lessening the problems presented by his anger problems due to communication. The Veteran also has no reported problems driving, and he worked as a truck driver in the military. Based on the evidence presented above, the Board does not find that the Veteran’s service-connected disabilities alone prevent him from securing or following substantially gainful employment. The evidence does not show that the Veteran’s current medical findings of his service-connected disabilities, are of the severity to warrant a referral to the Director of Compensation for extraschedular consideration. Board thus finds, that the Veteran’s service-connected disabilities, coupled with his educational/training background and employment history, do not preclude him from securing and following at least some form of substantially gainful employment. Entitlement to individual unemployability benefits due to service connected disorders is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel