Citation Nr: 18149278 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 13-10 498 DATE: November 9, 2018 ORDER Entitlement to a disability rating in excess of 70 percent prior to May 4, 2017 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 4, 2018 is denied. FINDINGS OF FACT 1. The Veteran’s service connected PTSD is not reasonably shown to impose a total occupational and social impairment prior to May 4, 2017. 2. The most probative evidence indicates that the Veteran’s service-connected disabilities did not preclude him from substantially gainful employment. 3. After May 4, 2017, the Veteran’s has had a 100 percent combined disability rating, thus his claim for a TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for a compensable rating greater than 70 percent prior to May 4, 2017 is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. Prior to May 4, 2017, the criteria for a TDIU have not been satisfied. 38 U.S.C. §§ 1155, 5107; 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 2005 to December 2005 and from July 2006 to October 2007. This matter was previously before the Board in February 2016, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development and is now ready for disposition. The Board notes that the Veteran was awarded a 100 percent disability rating from May 4, 2017. Accordingly, the Board finds that entitlement to a TDIU after May 4, 2017 is moot, however entitlement to a TDIU prior to that date remains before the Board and the issue on appeal has been recharacterized as noted above. Entitlement to a disability rating in excess of 70 percent for PTSD prior to May 4, 2017 is denied The Veteran seeks a disability rating for PTSD in excess of 70 percent prior to May 4, 2017. From April 15, 2011 to May 4, 2017, the Veteran was evaluated as 70 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 70 percent rating is prescribed when there is evidence of 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 relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran underwent a VA examination in July 2011. The examiner noted that the Veteran attends to his activities of daily living independently and without difficulty and has the capacity to manage his own finances. His memory was intact and his judgement was appropriate. He denied suicidal ideation and denied auditory and visual hallucinations. Treatment records during the period at issue contain repeated denials of suicidal ideation and hallucinations. There are no indications of disorientation, inability to perform activities of daily living or memory loss. Based on the evidence as a whole, the Board finds that the Veteran’s PTSD symptoms at least until May 4, 2017, met the rating criteria for a 70 percent rating. 38 C.F.R. § 4.130, DC 9411. However, the evidence does not demonstrate total occupational and social impairment which would warrant an increased rating of 100 percent at any time. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a “persistent” threat of danger to self or others and not knowing one’s own name, the names of close relatives, or one’s occupation. The Veteran does not have a history of having such symptoms. This finding does not suggest, in any way, that the Veteran did not have problems with this disability as a 70 percent disability evaluation indicates the Veteran had many problems. The only question is the degree. Entitlement to a total disability individual unemployability prior to May 4, 2018 is denied VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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 Board has carefully reviewed this record. Prior to May 4, 2018, the Veteran had a combined rating of 80 percent with a rating for PTSD of 70 percent and a 30 percent rating for an acquired right eye disorder. As such, the Veteran meets the schedular requirement for TDIU under 38 C.F.R. § 4.16(a). Even though the Veteran meets the threshold percentage requirements for a TDIU, the question that remains before the Board is whether the Veteran is unable to obtain or maintain substantially gainful employment. The Board finds that the greater weight of the probative evidence is against a finding that the Veteran became unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. At an August 2015 hearing, the Veteran testified that he last worked in 2011 as a cook at a restaurant and worked there for only a few weeks before being let go following an altercation. The Veteran’s mother submitted a statement noting that she and her husband have tried to obtain work for their son, but that he attempted work twice and was fired for fighting or missing too many days at work. The record is not entirely clear regarding the Veteran’s employment history. At a VA examination in April 2011 he reported working two jobs and that he would occasionally have to leave early because of irritability and trouble focusing. Treatment records in 2011 and 2012 reveal that he reported working as a bartender and at a military supply store. In 2015, the Veteran’s mother noted that while the Veteran used to enjoy working on his father’s farm, he no longer seems to have any desire to do so. Notably, the Veteran’s mother did not indicate that he is not capable of working on the family farm. At a VA examination in May 2017, the Veteran reported that he would occasionally work on his father farm when he felt like it. The Board recognizes that the Veteran has had difficulties maintaining employment, however, the available evidence does not show that the Veteran’s disabilities, either by themselves, or in combination, prevent the Veteran from obtaining and maintaining employment. Therefore, while the Veteran clearly had problems with his service connected disabilities, his service-connected disabilities (at this time) clearly did not render him unable to secure and follow gainful employment in a variety of settings prior to May 4, 2017. Not “feeling like” working is simply not enough (in this regard, as noted above, there is some suggestions in this record that the Veteran may have, in fact, been working – further exploration of this issue is simply not warranted, at this time). In any event, this finding does not suggest the Veteran can work today, simply that the evidence at the time in question provides evidence, overall, against this claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel