Citation Nr: 20008464 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 19-22 029 DATE: January 31, 2020 ORDER Entitlement to an initial increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s posttraumatic stress disorder (PTSD) has not been characterized by symptoms severe enough to warrant a 100 percent rating such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or intermittent memory loss for names of close relatives own occupation, or name. 2. The evidence is at least in relative equipoise as to whether the Veteran’s service-connected PTSD precluded her from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. § 5110 ; 38 C.F.R. §§ 3.155, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 19, to August 6, 1964. These issues come to the Board of Veterans’ Appeals (Board) on appeal from May 2017 and January 2018 rating decision. The May 2017 rating decision implemented a February 2017 Board decision and assigned a 70 percent rating effective January 29, 2003. The January 2018 rating decision denied a total disability rating based on individual unemployability. 1. Entitlement to an initial increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The AOJ found that the Veteran’s posttraumatic stress disorder most closely approximated the level of impairment associated with a 70 percent rating under Diagnostic Code 9411. 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Diagnostic Code 9411 is rated under the General Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130. Under the General Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Thus, the issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. After a review of the evidentiary record, the Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The Veteran was initially seen for a VA exam for her PTSD in March 2003 at which time the examiner provided a diagnosis of a depressive disorder, nos. At that time the examiner indicated that the Veteran indicated that she had felt suicidal in May 2002 and that she endorsed a history of alcohol abuse after discharge from service, but stopped drinking in 1975. The Veteran further indicated that she had been hospitalized for psychiatric problems first at the age of 14 years old prior to her military service. The examiner’s assessment was that the Veteran had been struggling with poor boundaries since childhood and had a lifelong struggle with depression which she was able to partially successfully deal with through therapy and medication. The examiner indicated that the Veteran’s GAF score was 40 and indicated she had severe psychological and health problems. The Veteran was next seen for a VA exam in February 2016. The examiner provided a diagnosis of an unspecified depressive disorder, a stressor related disorder, and an alcohol use disorder in remission. The examiner indicated that it was not possible to differentiate the symptoms of one disorder from the other. The examiner indicated the Veteran experienced symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of mood and motivation. The Veteran was oriented, her mood was euthymic, and her affect was normal. Her speech was within normal limits, her thought processes were clear and goal directed, and her judgment and insight were intact. She denied suicidal or homicidal ideation. The Veteran was deemed to be competent to handle her own financial affairs. The Veteran was also interviewed by Psychologist E. E. M in October 2016. After a thorough review of the record and following an interview with the Veteran, diagnoses of PTSD and depression were rendered. She suffered from near continuous depression, impaired impulse control (explosive rages), difficulty adapting to stressful circumstances (as evidenced by frequently having to quit employment before being fired) and an inability to establish and maintain effective relationships. She tended to isolate herself and was extremely nervous and anxious around other people. The Veteran was next seen for a VA examination in December 2017. The examiner provided a diagnosis of a stressor related disorder but did not discuss a depressive disorder or an alcohol use disorder that was previously diagnosed. At that time the examiner indicated that the Veteran experienced anxiety, chronic sleep impairment, and disturbances of motivation and mood due to her stress related disorder. The examiner indicated that the Veteran had problems with concentration and sleep disturbance due to her stress related disorder. The Veteran was appropriately dressed and groomed, her mood was euthymic, she has a broad affect, and unusual behaviors were not noted. The examiner found the Veteran was capable of handling her financial affairs. After review of the evidentiary record, the Board finds that the preponderance of the evidence is against the assignment of a 100 percent rating at any time during the appeal because the evidence is against a finding of total occupational and social impairment. The Board finds that the medical evidence, combined with the lay reports of record, indicates that the Veteran’s psychiatric disability was productive of not more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: depressed mood; suicidal ideation; memory impairment; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships throughout the period of appeal. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating, as her symptoms were less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. Therefore, the Board finds the Veteran’s service-connected psychiatric disability warrants no more than a 70 percent rating throughout the period of appeal. 38 C.F.R. § 4.130, Diagnostic Code 9421. The record does not contain evidence of the Veteran being a persistent danger to herself or others, gross impairment in thought processes or communication; grossly inappropriate behavior; intermittent inability to perform activities of daily living (such as maintenance of minimal personal hygiene); or disorientation to time or place. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment must be reviewed in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356 (1991), Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here the Veteran has met the schedular criteria for a TDIU since January 29, 2003. The evidence shows that the Veteran has only maintained seasonal employment since this time. See November 7, 2017 Social Security Earnings Statement and October 2019 Employability Evaluation. The October 2019 Employability Evaluation indicates that her seasonal employment lasted only one month per year and that she ceased doing this work when she had a severe panic attack. It was the employment evaluator’s opinion that this work did not constitute substantially gainful employment as she did not earn above the poverty threshold. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran’s earned 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. 38 C.F.R. § 4.16 (a). The Board notes that the Veteran’s income was never above $1,500 during this period. The Board notes that the Veteran was first seen for a VA exam for her PTSD in March 2003. The Veteran’s occupational history was given, and the examiner noted the Veteran employment as an Emergency Medical Technician (EMT) and that she currently received Social Security Disability for her heart condition and asthma. The examiner did not offer an opinion regarding the Veteran’s ability to maintain gainful employment due to her PTSD. The Veteran was next seen for a VA exam in February 2016 at which time she denied any history of occupational impairment resulting from her mental health conditions. The Veteran was subsequently seen for a VA examination in December 2017. At that time the examiner indicated that the Veteran was last employed in the early 90’s and that the Veteran did seasonal work in the past. The examiner also noted that the Veteran assisted NAMI for a stipend and held a premaster’s certificate. The examiner indicated that the Veteran’s mental health symptoms did not appear sufficiently severe to prevent her from maintaining adequate attendance in an occupational role. The Veteran’s Social Security Medical Records indicate that her primary diagnosis in her application for disability benefits was Coronary Artery Disease (CAD). The Social Security record also indicates that the Veteran endorsed a history of anxiety and alcohol dependence half way through her interview for benefits. However, there was no diagnosis of a psychiatric disability listed on her application. The Veteran’s VA treatment records from December 2004 indicate that she endorsed having difficulty functioning due to her PTSD symptoms. A May 2012 VA primary mental health assessment note indicates that the Veteran was seen for an attention deficit hyperactivity disorder screening and she endorsed being unable to concentrate on work and was easily distracted. The Veteran VA treatment records also indicate she endorsed plans to work at a festival in Springfield selling clothing in September 2010 and September 2014. The Veteran also submitted an October 2016 Psychological Report from Psychologist E. E. M. This report was based on an interview of the Veteran and a review of the claims file. It indicated that the Veteran’s psychiatric disorder would likely preclude her from securing and following a substantially gainful occupation and that this had been the case since at least 2003. This opinion was based on the Veteran’s tendency to isolate which would make it difficult to work alongside others. Finally, the Veteran submitted a July 2019 employability evaluation from M. L., a vocational rehabilitation consultant. He indicated that the Veteran had obtained her GED and a certificate in counseling education with approximately two years of college credits. He further indicated that she did not have any competitive computer skills and possessed no other licenses, certifications, or training. He indicated that it was his opinion the Veteran’s past work from 2003 to 2007 was marginal employment and that her PTSD was responsible for her being only able to maintain seasonal marginal employment. He also indicated the Veteran advised him of a small weekly stipend she received from NAMI which fell well below the poverty threshold. He then provided an analysis of the ability of the Veteran to maintain employment based on her relevant symptoms due to her service-connected PTSD. It was his opinion that symptoms associated with this condition would preclude the Veteran from securing and following substantially gainful employment. Based on a review of the above, and affording the Veteran the benefit of the doubt, the Board finds that entitlement to TDIU is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board accords the private vocational assessment significant probative value. The Veteran has been consistent in her reports that her service-connected disabilities cause her difficulty in concentrating and completing tasks. When considering such in addition to her disturbance of mood, the Board finds that the Veteran’s service-connected disability preclude substantially gainful employment. Entitlement to a TDIU is thus warranted. 38 C.F.R. §§ 3.340, 4.16. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John M. Middleton The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.