Citation Nr: 18150201 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-26 520 DATE: November 14, 2018 ORDER From January 1, 2016, to March 27, 2017, a rating of 70 percent for posttraumatic stress disorder is granted, subject to the provision governing the award of monetary benefits. Prior to March 27, 2017, a rating in excess of 70 percent for posttraumatic stress disorder is denied. A total disability rating based on individual unemployability as a result of the Veteran’s service connected disability is denied. FINDINGS OF FACT 1. From January 1, 2016, to March 27, 2017, the Veteran’s posttraumatic stress disorder (PTSD) was shown to cause suicidal ideation. 2. Prior to March 27, 2017, the Veteran’s PTSD was not shown to cause total occupational and social impairment. 3. The Veteran’s service-connected disability is not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From January 1, 2016, to March 27, 2017, the criteria for a 70 percent rating for PTSD, but not higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from April 1967 to April 1969, to include service in the Republic of Vietnam. In September 2017, the Board denied entitlement to a rating in excess of 50 percent for the Veteran’s service connected PTSD prior to March 27, 2017, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In June 2018, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Remand (JMR). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed his increased rating claim for PTSD in May 2010, which was denied by an August 2010 rating decision. In September 2017, the Board granted an increased rating of 70 percent beginning March 27, 2017, which was effectuated by a September 2017 rating decision. The Veteran asserts that he is entitled to a rating in excess of 50 percent prior to March 27, 2017. Under the General Rating Formula for Mental Disorders, a 50 percent evaluation is assigned when a veteran’s mental disability causes 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran’s mental disability causes 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran’s mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442. The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez Claudio v. Shinseki, 713 F.3d 112, 116 17 (Fed. Cir. 2013). The competent evidence of record, to include the Veteran’s treatment records and VA examination reports do not establish findings consistent with a rating in excess of 50 percent prior to January 1, 2016, or in excess of 70 percent afterwards for the Veteran’s PTSD. In July 2010, the Veteran was afforded a VA examination. He reported having one son, one brother, and one sister. He reported his relationship with his son was fine and his relationships with his siblings was ok. On examination, he was fully alert and oriented, cooperative, and attentive. He had a dysphoric mood with a constricted affect. He had no delusions or hallucinations. He had no panic attacks, suicidal ideation, or homicidal ideation. He had no problems with activities of daily living. He reported having nightmares, flashbacks, increased irritability, and increased concentration difficulties. The examiner reported that the Veteran had occupation and social impairment with reduced reliability and productivity. The Veteran’s treatment records prior to January 1, 2016, show that he denied having any suicidal ideation in November 2011. In September 2012, the Veteran reported that he was unable to handle stressful events in a work setting and quit his work. At a November 2015 treatment visit, he was fully alert and oriented with good recent and remote memory. He also denied having any suicidal ideation. In April 2016, the Veteran reported having frequent and intense nightmare and transient suicidal thoughts several months ago. He also reported that his medications were not effective in reducing his PTSD symptoms. On examination, he had poor concentration with an anxious affect. He was diagnosed with persistent severe PTSD symptoms that had responded poorly to treatment. In May 2016, the Veteran was afforded a VA examination. He reported that his relationship with his son was fine and he enjoyed attending church. On examination, the Veteran was calm and pleasant. He had a dysphoric mood and affect and appeared mildly anxious. The examiner indicated that the Veteran’s symptoms were depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner reported that the Veteran had occupation and social impairment with reduced reliability and productivity. Prior to January 1, 2016, at the July 2010 VA examination, the VA examiner reported that the Veteran’s symptoms included nightmares, flashbacks, increased irritability, and increased concentration difficulties. The examiner indicated that the Veteran had occupation and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating. The Veteran’s treatment records show that he denied having suicidal ideation in November 2011 and November 2015. While the Veteran reported that he was unable to handle stressful events in a work setting, which resulted in him quitting work, in September 2012, the Veteran’s treatment records both prior and afterwards show that he denied having suicidal ideation. On examination, he was fully alert and oriented with good recent and remote memory. The medical record does not document any objective evidence that would be consistent with a 70 percent rating prior to January 1, 2016, such as suicidal ideation, obsessional rituals that interfered 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, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. As such, prior to January 1, 2016, the Veteran’s PTSD symptoms did not approximate the criteria for a rating in excess of 50 percent. In April 2016, the Veteran reported having transient suicidal thoughts several months previously. He was diagnosed with persistent severe PTSD symptoms. At the May 2016 VA examination, the examiner reported that the Veteran’s PTSD symptoms included depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Giving the Veteran every benefit, based on his reports of suicidal ideation several months prior to his April 2016 treatment visit and the diagnosis of persistent severe PTSD symptoms, which is consistent with the March 2017 treatment visit for which the 70 percent was granted, the Board finds that beginning January 1, 2016, the Veteran’s symptoms approximated the criteria for a 70 percent rating. However, at no time during the period on appeal has the Veteran had findings consistent with a 100 percent rating. He maintains relationships with his son, brother, and sister. He also enjoyed going to church. As such, total social and occupational impairment has not been shown, which would be consistent with a 100 percent rating. Accordingly, from January 1, 2016, to March 27, 2017, the Veteran is granted a 70 percent rating for his PTSD. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more, and that, 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 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veteran meets the schedular requirements for a TDIU beginning January 1, 2016, as he is now rated at 70 percent for his PTSD. A review of the competent evidence of record, which includes the Veteran’s VA treatment records and his lay statements, when taken in total, does not suggest unemployability as a result of his service connected disabilities beginning January 1, 2016. The Veteran reported that he was unable to work due to his PTSD in his September 2012 substantive appeal. In September 2017, the Board remanded his claim for a TDIU in order for the Veteran to complete VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and VA Form 21-4292 (Request for Employment Information in Connection with Claim for Disability Benefits). However, the claims file does show that the Veteran submitted either of these VA Forms, which are needed to adjudicate his TDIU claim. In pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim, VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In addition, a December 2017 VA examiner reported that the Veteran’s PTSD would result in reduced productivity and reliability in a stressful, work setting where high productivity was required due to problems with irritability, fatigue, impaired sleep, anxiety, and anhedonia. However, the VA examiner reported that the Veteran was alert and oriented with intact judgment and there was no evidence of psychosis or a thought disorder. The VA examiner found that the Veteran was able to communicate effectively, follow simple instructions, and complete routine tasks. Finally, the Veteran has not identified or submitted any competent evidence demonstrating that his service connected PTSD precluded him from securing and maintaining substantially gainful employment and entitle him to a TDIU. As such, the claims file does not show that the Veteran is unable to obtain or maintain substantially gainful employment. The Board does not believe that the Veteran’s service connected PTSD prevents him from obtaining or maintaining substantially gainful employment consistent with the December 2017 VA examiner’s findings. Accordingly, a TDIU is not warranted, and the Veteran’s claim is denied. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel