Citation Nr: 18148569 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-36 313 DATE: November 8, 2018 ORDER Entitlement to an increased rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement for a total disability rating based on individual unemployability is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s PTSD was manifested by symptoms of chronic sleep impairment, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, depression, anxiety, suspiciousness, mild memory loss, disturbances of motivation and mood, impaired impulse control with unprovoked irritability with periods of violence, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work-life setting, and isolated periods of suicidal ideation. Total occupational and social impairment has not been shown. 2. For the period on appeal, the Veteran’s service-connected disabilities alone were not of such severity as to render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD during the period on appeal have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a total disability rating based on individual unemployability for the period on appeal have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340(a), 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 2006 until November 2009. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs Regional Office (RO) granting a claim of service connection for PTSD and awarding a 70 percent disability rating. The Veteran was afforded a hearing before the undersigned Veterans Law Judge via video conference in January 2017. A written transcript of this hearing has been prepared and incorporated into the evidence of record. During the January 2017 hearing, the Veteran’s attorney reported that the Veteran’s service connected PTSD disability rendered him unable to obtain or retain gainful employment. As such, a claim for TDIU in inferred from the record and the merits of which must be assessed by the Board. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). 1. Entitlement to an increased rating in excess of 70 percent for PTSD. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. 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. 38 C.F.R. § 4.126. 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. Id. 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. Id. The Veteran’s PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Veteran has been assigned a 70 percent rating effective June 12, 2013. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.130. The Veteran was provided with a VA psychiatric examination in October 2013. He reported having the following symptoms: chronic sleep impairment, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, depression, anxiety, suspiciousness, mild memory loss such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work-life setting, reoccurring suicidal ideation. Overall, the examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school family relations, judgment, thinking and/or mood. There is no evidence that the examiner was not competent or credible, and as the opinion was based on the medical evidence and physician evaluations of the Veteran, the Board finds its is entitled to significant probative weight as to the severity of the Veteran’s PTSD at the time of the examination and during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295. During the January 2017 hearing, the Veteran testified that he has been doing better since the VA examination in October 2013, primarily due to his service dog. He stated that everything he does revolves around his dog and that he stays out of trouble because he knows that if something were to happen to him, there would be no one left to care for his dog. He reported that he cares for his dog’s well-being and takes her on daily walks. He has owned the dog since 2012. The Veteran reported that he lived with his aunt and uncle (whom he considers his parents) for a few months after he was discharged from the Army in 2009, but had since moved into his own apartment. He reported that his relationship with his parents is okay and that they supported him following his knee surgery in the fall of 2012. He stated that he had friends, but did not socialize with them because he does not want to get into an argument and hurt them. He reported that he has gotten into a couple of physical altercations in the past with friends. For the same reason, the Veteran stated that he avoids romantic relationships The Veteran reported that after he was discharged from the Army, he worked at Beth Israel hospital as a security officer from 2010 to 2012. In 2012 he started an Associate’s degree program on a part time basis. While he went to school, the Veteran worked part time jobs, including in security and food delivery. Although he had enrolled in a two-year degree program, it took the Veteran four years to complete his degree because he had difficulties concentrating in class, and finding the motivation to get out of bed and attend his classes. He also had a knee surgery in the fall of 2012. His absences from class and his knee surgery caused him to drop out of school a couple of times. At the time of the hearing, the Veteran had been employed as a security officer since October 2016 and worked at various hospital locations. He said that he worked approximately 32 hours per week, primarily in the mornings. He reported that he got along with his supervisor, who is also a veteran, and is required to socialize with strangers as part of his job. The Veteran reported having memory loss, such as problems finding his car in the parking lot, and remembering appointments and his schedule. He stated that while his memory loss caused some issues with his prior work, it had not impacted his current job because he works for a smaller company and he handles simple matters such as sit at the access pint in the main entrance or go on patrol throughout the building. He also reported that his memory loss has improved, and the frequency of his memory issues decreased from daily to three times per week. The Veteran stated that he used to have problems maintaining his hygiene. In the past he had let his beard and hair grow long, would get a haircut once every two months, and would not wash his beard or hair for long periods of time. His parents had complained about his poor hygiene habits. At the time of the hearing, the Veteran reported that he bathed daily and got a haircut about once every two weeks because he was expected to maintain a clean appearance for work. On the day of the hearing the Veteran appeared clean-shaven, groomed and wore a nice suit and tie. The Veteran also reported that his parents no longer complained about his hygiene. However, the Veteran reported that he had trouble keeping his apartment clean because he was not motivated to do much at home other than watch TV or lay in bed. The Veteran testified that he had experienced suicidal ideations in the past. In July 2012, the Veteran went to the Bronx VA to establish care and following his PTSD evaluation, he was admitted to inpatient psychiatry for approximately two weeks for active suicidal ideation. He had since been treated for PTSD by the Bronx VA with medication and psychotherapy. In January 2017, he reported that he no longer had suicidal ideations, but did think about hurting people who provoked him. The Veteran reported two incidents of verbal altercations involving a fellow student and a patron of the bar where he worked, and one incident of physical altercation where he reacted in self-defense to a fellow student punching him. The three incidents occurred between September and October 2012. He also reported a verbal altercation with a doorman in July/August 2015. The Veteran has not had any other verbal or physical altercations since these isolated incidents. The Veteran indicated that because he knows the consequences of what would happen if he hurt someone, he walks away from situations that could trigger a physical altercation. The Veteran is competent to report the above symptoms and events and therefore the Board finds his testimony credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Throughout the period on appeal, the Veteran has reported the following symptoms: chronic sleep impairment, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, depression, anxiety, suspiciousness, mild memory loss, disturbances of motivation and mood, impaired impulse control with unprovoked irritability with periods of violence, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work-life setting. The Veteran has not reported nor has the medical evidence shown a deterioration of the Veteran’s PTSD symptoms. In fact, the evidence has shown a gradual improvement in the Veteran’s symptoms. While he has limited social interaction with people outside of work and continues to struggle with irritability when he is provoked, he has not been involved in a physical altercation or gotten into any trouble since 2012. Caring and being responsible for his service dog has helped the Veteran exercise self-control in situations when strangers have provoked him. He has been working on a part-time basis, primarily as security officer, almost consistently since his discharge from the army and there is no evidence that his PTSD symptoms have interfered with the performance of his daily duties. The Veteran has also not shown a gross impairment in thought processes or communication. In fact, the Veteran reported that he had a good relationship with his supervisor and there are no complaints of Veteran having any incidents at work. His work as a security officer requires him to socialize with strangers, and he has not reported issues performing this task. The Veteran’s most recent employment has also led to an improvement in his personal appearance and hygiene. While the Veteran continues to experience memory loss, it does not rise to the severe level of forgetting the names of his relatives, his own name or occupation. The Veteran’s struggles with maintaining a clean apartment do not rise to the level of grossly inappropriate behavior. The Veteran has shown the ability to perform activities of daily living such as getting ready for work; maintaining his personal hygiene and appearance; feeding, walking and caring for his dog; maintaining his finances; and providing for his own sustenance. Although there were four incidents of verbal and/or physical altercations between 2012 and 2015, the isolated nature of these incidents does not rise to the level that would render the Veteran a persistent danger of hurting others. The Veteran has also denied having suicidal ideations since the October 2013 examination and therefore is not a persistent danger of hurting himself. The Veteran has not reported persistent delusions or hallucinations, or disorientation to time or place. Therefore, the Veteran’s symptoms during the period on appeal more closely approximate the criteria for a 70 percent disability evaluation. Overall, while the severity and frequency of the Veteran’s symptomatology resulted in deficiencies in most areas, they did not result in total occupational and social impairment, contemplated by a 100 percent rating. In fact, the October 2013 VA examination concluded that the Veteran exhibited occupational and social impairment in most but not all areas. Moreover, the lay and medical evidence shows an improvement in the Veteran’s social and occupational impairment since the October 2013 VA examination. There is no evidence of further symptomatology of similar severity to the symptoms contemplated by the 100 percent rating criteria. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (2013). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Therefore, for the reasons stated above, the Board finds that an initial rating of 70 percent, but not greater, during the entire period on appeal is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The preponderance of the evidence is against a rating higher than the 70 percent rating. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. 2. Entitlement for a total disability rating based on individual unemployability Evidence in the record raised a claim for TDIU because the Veteran has claimed that he cannot perform substantial gainful employment because of his service connected disability. He testified that although he was employed as a security officer, his PTSD prevents him from securing and maintaining substantially gainful employment. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. If there is only one service-connected disability, as in this case, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). A claim for a total compensation rating based upon individual unemployability, “presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of ‘subjective’ factors that the ‘objective’ rating does not consider.” Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the case shall be submitted for extra-schedular consideration. The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be 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 may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.18. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is service connected for PTSD, rated as 70 percent disabling, and for status post first extensor compartment release of right wrist, assigned a noncompensable rating. The Veteran meets the minimum schedular criteria for consideration of entitlement to a TDIU by virtue of his PTSD disability, rated as 70 percent disabling, and a combined rating of 70 percent for his disabilities. The Veteran has testified that he was employed on a part time basis for the overwhelming period on appeal. While he lived with his parents immediately after his discharge from the army, the Veteran worked at a marble company warehouse. While he attended school part-time from 2012 to 2016, he worked part-time as a bouncer at a bar, a food delivery driver, and a security officer. He earned an Associate’s degree in Law Enforcement and since October 2016, he has been employed as a security officer at various hospital locations. Although the Veteran testified that his memory has caused him some problems at previous jobs, there is no evidence in the record that the Veteran was terminated or resigned from his previous positions on account of his PTSD, including his memory loss symptoms. Moreover, the Veteran testified that his memory loss has not had an impact on his current position as a Security Officer. The Veteran indicated that he was not able to work or attend classes during the Fall 2012 semester due to two knee surgeries; however, his knee injuries are not service connected. Therefore, the Veteran’s employment history throughout the period on appeal shows that his service connected PTSD has not prevented him from securing and maintaining substantially gainful employment. The Veteran testified that his income as a part-time Security Officer is insufficient for him to live on in downtown New York City. However, there is no evidence in the record to suggest that the Veteran is unable to meet his financial commitments through his current employment, as he has maintained part time employment and resided in the same location since 2010. There is also no evidence in the record to suggest that the Veteran was unable to find full-time employment on account of his PTSD. In fact, throughout the period on appeal, the Veteran has testified about his various career ambitions including joining the NYPD, working for the Federal Government and starting a business partnership with a friend. Based on the evidence in the record, the Veteran’s part-time employment as a Security Officer is not marginal because it allows him to earn a living that is sufficient to meet the financial expenses associated with residing in downtown New York City. (Continued on the next page)   Therefore, the Board finds that the preponderance of the evidence in the record demonstrates that the Veteran was not rendered unemployable solely on account of his service connected disabilities, to include his PTSD; but rather, has been able to secure and follow substantially gainful occupation. In the instant case, as the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim for TDIU must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. White, Associate Counsel