Citation Nr: 18158642 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 10-11 344 DATE: December 18, 2018 ORDER Entitlement to an initial evaluation in excess of 30 percent from March 22, 1999 to October 11, 2001 for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to October 2, 2009 for the grant of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From March 22, 1999 to October 11, 2001, the Veteran’s PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran’s PTSD did not prevent him from securing and following substantially gainful employment prior to October 2, 2009. CONCLUSIONS OF LAW 1. From March 22, 1999 to October 11, 2001 the criteria for an evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. Prior to October 2, 2009, the criteria for the grant of a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1969 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2008 and July 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Briefly, service connection for PTSD was granted in a September 2007 Board decision and an initial 30 percent rating was assigned in an August 2008 rating decision, which the Veteran appealed. Fifty percent and 70 percent ratings were granted during the course of the appeal in respective February 2010 and July 2011 rating decisions. Additionally, the July 2011 rating decision granted entitlement to a TDIU, effective October 2, 2009. The Veteran submitted a timely notice of disagreement and VA Form 9 disagreeing with the effective date assigned for the grant of a TDIU. These claims were previously before the Board in July 2017, at which time the Board denied the claims of increased ratings for PTSD and of an earlier effective date for the grant of a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Joint Motion for Partial Remand (JMR), the Court indicated that the Veteran was “no longer pursuing his appeal of claims [of] entitlement to [ ] a rating in excess of 50% from October 11, 2001 to October 2, 2009, and in excess of 70% from October 2, 2009, for PTSD” and dismissed the appeal with regard to those issues. The issues remaining in appellate status were entitlement to a rating in excess of 30 percent from March 22, 1999 to October 11, 2001 for PTSD and entitlement to an effective date earlier than October 2, 2009 for the grant of a TDIU. The Court partially vacated the Board’s July 2017 decision with regard to the two aforementioned claims and remanded the matter to the Board. 1. Entitlement to an initial evaluation in excess of 30 percent from March 22, 1999 for service-connected posttraumatic stress disorder (PTSD). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The RO has rated the Veteran’s PTSD under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s). See 38 C.F.R § 4.130, Diagnostic Code 9411 (PTSD). The General Rating Formula is as follows: A 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted where 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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 of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118.As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the Diagnostic Code to determine whether an increased evaluation is warranted. In October 1999, the Veteran was seen for the first time by his VA psychologist. The examiner noted that the Veteran was cleanly groomed and dressed, he was well-oriented to person, place, time, and situation, and his thought progression was logical, relevant, and goal-directed with no suicidal ideation, homicidal ideation, or cognitive/perceptual distortion. The Veteran did not exhibit any emotional extremes. His affect was with little animation but not inappropriate, and his attitude and behavior were somewhat guarded but not uncooperative. In November 1999, the Veteran was again seen by his VA psychologist, who noted that the Veteran appeared depressed and was in some tears but was appropriate. He reported no significant change in circumstances or psychological state. In January 2000, the Veteran appeared for a scheduled individual psychotherapy session and his psychologist noted that he appeared quiet but cooperative. He reported that he reduced his drinking frequency to 3 nights per week but was still drinking 6-8 bears each time. He also reported that he had fragmentary dreams related to Vietnam, particularly related to Vietnamese children. Results of PTSD diagnostic testing from February 2000 indicated that the Veteran had clinically significant levels of depression and PTSD symptoms and suggested diagnoses of dysthymic disorder and PTSD. On the Beck Depression Inventory (BDI), the Veteran admitted feeling discouraged about the future and that he had thoughts of suicide but “would not carry them out.” The Veteran received a psychology assessment in May 2000. He reported experiencing distressing memories of Vietnam via dreams and flashbacks. He also reported verbal irritability in and out of family, though he did not report any aggressive acting out. He noted some episodic depressed mood and behavior and decreased motivation with no reduction in self-care. The Veteran reported vague suicidal ideation with no intent, and the psychologist noted no history of enactment. He did not note any chronic anxiety, panic attacks or psychotic-level hallucinations or delusions. The Veteran reported that he had some interests in fishing and playing music, was emotionally close to his children, grandchildren, and wife but otherwise had limited social contacts. On mental status examination, the Veteran was cleanly groomed and dressed, well-oriented, spoke freely, fluently, and spontaneously without press. His thought progression was logical, relevant, and goal-directed without suicidal ideation, homicidal ideation or cognitive/perceptual distortion. In August 2000, the Veteran reported an exaggerated startle response to one of his relatives unexpectedly setting off a small explosion during a July 4th celebration and reported that he drank several beers to calm down. On mental status examination, the psychologist did not note any suicidality or homicidality and found the Veteran alert and oriented with normal speech and logical, goal-directed thought content with no lethality and no psychosis. A different VA psychologist noted in an October 2000 psychiatry note that the Veteran was slightly more preoccupied with his experiences in Vietnam, possibly related to taking care of his grandchildren. The Veteran reported no major worsening of flashbacks or dreams of anger. Suicidality and homicidality were specifically noted as “no.” On mental status examination, the Veteran was alert and oriented in all spheres. His speech was normal, his affect was full, his thought content was logical and goal-directed with no lethality and no psychosis. His insight and judgment were intact. The Veteran’s wife submitted a statement in December 2000 lay wherein she noted that the Veteran got upset easily and was startled at loud noises. She also noted that in his sleep he yelled, and grabbed her by her throat, but that he did not remember doing that when he woke up. She also noted that he perspired excessively at night, and when he would get upset. The Veteran exhibited difficulties sleeping through the night and had frequent mood swings. He was also drinking alcohol more frequently, and avoided going out or talking to anyone. The Veteran’s wife also noted that he had difficulties being around other people, which is why he was unable to work. In treatment records from December 2000, the Veteran reported having recently spent time with one of his Vietnam buddies. In January 2001, the Veteran reported that he managed stressful situations over the holiday by taking “time outs.” The psychologist noted that the Veteran was still unable to manage crowed and preferred to be on his own. On mental status examination, the Veteran was alert and oriented in all spheres with normal speech, full affect, and logical and goal directed thought content. The Veteran did not exhibit psychosis, and his insight and judgement were intact. In March 2001, Veteran had an appropriate mood and affect, and that he was able to divert his service-related thoughts by practical tasks. He was also no longer having dreams about his service in Vietnam, and could sleep about 5 hours per night due to the antidepressants he was taking. The Veteran reported considering talking with a minister about the spiritual aspects of killing, though the context of the treatment note indicates that this was in reference to the Veteran’s PTSD stressor, not a result of any suicidal or homicidal ideation. In April 2001, the Veteran reported being more active due to the nicer weather which caused him to have less intrusive thoughts of Vietnam, but that he continued to awaken periodically due to dreams he had of Vietnam. On review of the record, the Board finds that the disability picture presented by the Veteran’s PTSD does not warrant a rating higher than 30 percent. Although there was some evidence of difficulty in establishing effective work and social relationships, there was no evidence of flattened affect; impaired memory, judgment, or abstract thinking, or any other symptoms reflective of a higher 50 percent rating. In fact, the VA treatment records specifically indicated the Veteran exhibited full affect, intact judgment, appropriate thought content. Furthermore, the Veteran reported he had a few friends and good relationships with his wife, children, and grandchildren. Considering the symptoms in the lay and medical evidence, the Board finds that the overall functional occupational and social impairment is contemplated by the 30 percent rating assigned during this period. Additionally, the Board finds that the disability picture presented by the Veteran’s PTSD does not warrant a 70 percent rating. In this regard, the Board notes that “in the context of a 70 percent rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board acknowledges that the Veteran has twice alluded to having suicidal ideations, first in February 2000 and then in May 2000. However, aside from these two notations, he has consistently denied suicidal ideation(s), intent, or plan. The facts of this case are distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017) wherein the Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. Here, apart from the two above-cited references, the Board notes that VA treatment records overwhelmingly reflect that the Veteran has denied suicidal ideations. This case is distinguishable from Bankhead because, unlike in Bankhead, the dual notations of suicidal ideation (passive or otherwise) during the relevant period by themselves or when considered with other symptoms, did not cause the level of occupational and social impairment associated with a 70 percent disability rating. In contrast to Bankhead, in many other instances during the relevant period, the Veteran reported not having such ideation or thoughts. On this basis, the Board finds that the preponderance of the evidence weighs against a finding that suicidal ideation represents the level of disability manifested during this period. In particular, the record does not reflect symptomatology of deficiencies in most areas, particularly, work, judgment, thinking or mood such that his symptoms equate to the severity, frequency and duration of obsessional rituals that interfere with routine activities, illogical or obscure speech, near-continuous panic or depression affecting the ability to function independently, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene and an inability to establish and maintain effective relationships. Considering the evidence as whole for this period under consideration, the Board finds that the overall impact, to include that evidence of suicidal thoughts/ideations, of the Veteran’s disability on his social and occupational function does not more nearly approximate that represented by a 50 or 70 percent rating, but rather reflect a lesser degree of impairment that is contemplated by the 30 percent rating assigned herein. The Board has carefully considered the level of impairment contemplated by the various levels delineated in the rating schedule and found that the evidence indicates that the overall level of disability most nearly approximates that already assigned. In making this determination, the Board has reviewed all the evidence of record, both medical and lay evidence, regarding the level of severity of the Veteran’s PTSD. . 2. Entitlement to an effective date prior to October 2, 2009 for the grant of a total disability rating based on individual unemployability (TDIU). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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). Prior to October 2, 2009, the Veteran’s sole service-connected disability was PTSD, rated as 30 percent disabling prior to October 11, 2001 and as 50 percent disabling thereafter. Therefore, he did not meet the criteria for a schedular TDIU prior to October 2, 2009. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background, including his or her employment and educational history. 38 C.F.R. §4.16(b). The central inquiry is determining whether a TDIU is warranted is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In a September 1998 VA back examination, the Veteran reported that his last full-time job as a heavy equipment mechanic ended in 1990 but that from 1990 until approximately 1997, he had worked at some odd jobs. The Board notes that the Veteran is receiving a nonservice-connected pension for his back disability. The Veteran’s spouse submitted a statement in December 2000 wherein she noted that it was hard for the Veteran to work around a lot of people. She reported that the Veteran was bothered by loud noises, which is why he left a band that he played in. She also said that on some days the Veteran “doesn’t want to talk to anyone and won’t answer the phone or go outside.” See December 2000 statement at 2. In July 2001, the Veteran stated that he was unable to work because of his inability to interact with other people. VA treatment records do not support the Veteran’s contention that his PTSD rendered him unable to secure or follow substantially gainful employment prior to October 2, 2009. The Veteran reported in May 2000 that he had used relaxation techniques to cope with anxiety. In December 2000, the Veteran reported that he was drinking less and that he spent time with a buddy from Vietnam. In January 2001, the Veteran reported that he was injured in a coal mine in 1975 and had not worked since then. He reported later in January 2001 that he managed stressful situations over the holidays by taking “time outs.” VA treatment records generally show that the Veteran displayed intact judgment, appropriate and goal-directed thought content, and was properly oriented. The Veteran was afforded a VA PTSD examination in March 2008. He reported having less depression and more interest in activities, such as seeing friends. Specifically, the Veteran reported that he had been more active and was able to go fishing and hunting last year and that he enjoyed spending time with his friends. The examiner noted that the Veteran had not had ongoing therapy for his PTSD since 2002. With respect to occupational functioning, the examiner noted that the Veteran had not worked since 1990 because of his back injury. In response to the Veteran’s description of his depression as 4/10, the examiner stated that such a level of depression would be expected to have mild impact on employment and social functioning due to social withdrawal but noted that the Veteran did not appear nearly as depressed during his interview as his self-report indicated. The examiner indicated that the Veteran did not meet the PTSD criterion of PTSD causing clinically significant impairment in social or occupational functioning, noting that the Veteran appeared to have good social functioning and that he worked for 20 years in the same job before quitting due to a back problem, not PTSD. The examiner specifically found that PTSD was not responsible for the Veteran’s unemployment. In a June 2009 statement, the Veteran’s private psychologist, Dr. S.O., submitted a statement describing the Veteran’s PTSD symptoms and their impact. Dr. S.O. reported that the Veteran experienced intrusive images, thoughts, and nightmares about his stressor which caused intense psychological distress and physiological arousal. Dr. S.O. also stated that the Veteran experienced a diminished interest and pleasure in activities. The Veteran was able to force himself to stay involved in social activities. He had a supportive wife and family but felt estranged from them. Dr. S.O. described the Veteran’s difficulty with his sleep and general mood of irritability. He also stated that the Veteran “clearly suffers from significant psychological distress related to the trauma. Furthermore, his social functioning is limited by his ability to trust others and become emotionally available to others.” See June 2009 statement from Dr. S.O. at 2. Dr. S.O. did not discuss the occupational impact of the Veteran’s PTSD symptoms. Although the Veteran believes that his service-connected PTSD prevented him from working prior to October 2, 2009, the Board finds that the preponderance of the evidence weighs against this finding. While there is some evidence the Veteran’s employment activities would have been limited by his service-connected PTSD prior to October 2, 2009, none of the medical evidence establishes that the Veteran was prevented from working as a result of his service-connected PTSD prior to October 2, 2009. The question of the occupational and functional limitations caused by a service-connected disability involves medical questions that need to be addressed in determining the legal question of the ability to maintain substantially gainful employment. The Board finds that the Veteran’s lay testimony is not competent as to these overall determinations, although again, his testimony is fully considered in the assessment of the medical and legal questions. While the Board does not doubt that the Veteran’s service-connected PTSD had some effect on his employability prior to October 2, 2009, the weight of the evidence does not support the contention that his service-connected PTSD was of such severity so as to preclude his participation in any form of substantially gainful employment. Based on the evidence in the claims file, the Board finds that the symptomatology associated with the service-connected PTSD was appropriately compensated via the assigned 30 percent and 50 percent ratings. Considering the VA examinations of record and the discussion of symptomology contained therein, VA treatment records, and the lay statements of record, the Board finds the evidence weighs against a finding that the service-connected PTSD prevented substantially gainful employment prior to October 2, 2009. Thus, the Board finds that the evidence of record does not indicate that additional development of the claim of TDIU, to include referral on an extraschedular basis, is warranted. See 38 C.F.R. § 4.16(b). For this reason, this claim is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel