Citation Nr: 18157068 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 15-11 073 DATE: December 11, 2018 ORDER Entitlement to a disability evaluation in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s PTSD does not more nearly approximate total occupational and social impairment. 2. Service connection is in effect for PTSD evaluated as 70 percent disabling and erectile dysfunction evaluated as zero percent disabling with a 70 percent combined rating. 3. The Veteran has a high school degree, experience working as a welder and iron worker from 1995 to 2009, and has not been gainfully employed since 2011. 4. The service-connected PTSD, alone, precludes the Veteran from securing or following a substantially gainful occupation consistent with his work experience and education. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 70 percent for the service-connected PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7,4.130, Diagnostic Code 9411 (2018). 2. Affording the appellant the benefit of doubt, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1972 to July 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2018, the Veteran submitted a waiver of agency of original jurisdiction (AOJ) consideration of new evidence pursuant to 38 C.F.R. § 20.1304 (2018). In November 2018, the Veteran withdrew the request for a Board hearing. 38 C.F.R. § 20.704 (d) (2018). 1. Entitlement to a disability evaluation in excess of 70 percent for the service-connected PTSD is denied. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). The Veteran’s PTSD has been evaluated under Diagnostic Code 9411 and a 70 percent rating is currently assigned. 38 C.F.R. § 4.130 (2018). Under the General Rating Formula for Mental Disorders, a 100 percent rating applies where 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. 38 C.F.R. § 4.130 (2018). These psychiatric symptoms listed in the rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Under the criteria for rating of PTSD, the basis for a 100 percent scheduler rating is a finding of total occupational and social impairment. Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). On this record, the Board finds that a 100 percent rating is not warranted for the service-connected PTSD at any time during the period of the appeal. Evidence shows that the PTSD does not cause total social impairment in addition to total occupational impairment. There is no evidence of total social impairment. The Veteran is isolated socially, but he did have some social contacts. The August 2018 VA examination report indicates that the Veteran lived with his daughter, his female friend, and two kids, ages 8 and 16. He reported that he may attend church and he felt better around family. Thr Veteran reported that he last worked as a welder in 2009. He currently received medical treatment at VA. The February 2015 VA examination report also indicates that the Veteran lived with his daughter and he sometimes attended church. To the extent that the Veteran’s PTSD impacts his employability, the Board is granting entitlement to TDIU as discussed below. The competent and credible evidence shows that for the entire period of the appeal the Veteran’s PTSD has not been manifested by symptoms of 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. VA treatment record shows that the Veteran had intermittent suicidal thoughts and he had no homicidal ideation. In rendering this decision, the Board has considered how the Veteran’s symptoms impact his occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board has also considered 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(a). However, when considering the totality of the evidence, while the Veteran’s symptoms are indicative of a 70 percent rating, they have not been shown to result in total occupational and social impairment. Thus, the Board finds that the record demonstrates that, for entire rating period, the Veteran’s disability picture does not more nearly approximate the 100 percent rating criteria under Diagnostic Code 9411. 38 C.F.R. § 4.7. In conclusion, the Board finds that the preponderance of the evidence weighs against the claim for a disability rating in excess of 70 percent for the PTSD, and the claim is denied. 2. Entitlement to TDIU is granted. All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A total disability is appropriate when there is 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 (a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall 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). “Marginal employment,” for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16 (a). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income...” Other factors to be considered in determining whether a veteran is unemployable are his level of education, his employment history, and his vocational attainment. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). Here, the Veteran argues that his service-connected PTSD has rendered him unable to maintain substantially gainful employment. See the February 2014 TDIU application. In this regard, service connection is in effect for PTSD evaluated as 70 percent disabling and for erectile dysfunction evaluated as zero percent disabling. The combined rating is 70 percent. The combined rating requirement of 38 C.F.R. § 4.16(a) is met. The remaining issue is whether the Veteran’s service-connected disabilities precluded him from engaging in all forms of substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The record reflects that the Veteran had experience working as a welder and iron worker from 1995 to 2009. See the Social Security Administration (SSA) work history report and the TDIU application dated in February 2014. The Board finds that the evidence is in equipoise as to whether the Veteran’s service-connected PTSD precludes him from securing or following a substantially gainful occupation. There is competent and credible evidence that the service-connected PTSD affects the Veteran’s mood, memory and sleep and causes symptoms of avoidance, nightmares, and flashbacks. The August 2018 VA examination report indicates that the PTSD causes depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. See also the February 2015 VA examination report. The August 2012 VA examination resulted in Axis I diagnoses of PTSD and cocaine abuse in remission and alcohol abuse in remission. According to this examination, the Veteran’s PTSD causes depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, an inability to establish and maintain effective relationships, and suicidal ideation. In a March 2016 decision, SSA found the Veteran disabled under SSA law and regulations from February 2014 due in part to his PTSD. In an October 2018 statement, the Veteran’s treating VA psychiatrist opined that the Veteran was unable to maintain or sustain any type of substantially gainful employment due to the chronic and severe PTSD. The Board finds that the 2018, 2015, and 2012 VA examination findings show that the Veteran’s PTSD significantly impacts his occupational functioning and that the PTSD causes disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, and an inability to establish and maintain effective relationships. As noted above, the October 2018 statement by the Veteran’s treating VA psychiatrist indicates that the Veteran was unable to maintain or sustain any type of substantially gainful employment due to the chronic and severe PTSD. The Board notes that the record shows a diagnosis of major neurocognitive disorder in addition to PTSD and that the August 2018 VA examiner has been able to differentiate which symptoms were attributable to each disorder. Mittleider v. West, 11 Vet. App. 181 (1998). The VA examiner opined that the cognitive disorder may affect, memory, concentration, and self-care; both conditions may affect mood, memory and sleep and that PTSD caused avoidance, nightmares, flashbacks. The VA examiner opined that there is no direct medical/clinical documentation of the Veteran’s alcohol and cocaine abuse being directly due to PTSD. The Board notes that the evidence shows that the Veteran’s alcohol abuse and cocaine abuse were in remission. The VA examiner indicated that there is a documented medical association between the neurocognitive disorder related to alcohol and vascular type disorders; that it was as least as likely as not that the neurocognitive disorder is associated with both alcohol abuse and vascular conditions; and that the cognitive disorder was less likely due to PTSD. The evidence shows that the Veteran has two disorders, PTSD and a neurocognitive disorder, both of which contribute to his ability to function in an occupational environment. However, there is competent and credible evidence that the Veteran’s PTSD significantly impacted his occupational functioning and that the PTSD prevented him from maintaining or sustaining any type of substantially gainful employment due to the chronic and severe PTSD symptoms. After affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s service-connected PTSD prevents him from securing or following all forms of substantially gainful employment. TDIU is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel