Citation Nr: 20021936 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 20-03 785 DATE: March 30, 2020 ORDER Entitlement to an initial disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD manifests as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for evaluation for an initial disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § § 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10; 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from September 1986 to February 1987; and from October 1989 to February 1995. He also served in the National Guard from September 1985 to August 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In the February 2019 Notice of Disagreement (NOD), the Veteran’s attorney generally described statutes, regulations, and caselaw regarding the adequacy of VA examinations. However, the Veteran’s attorney did not state which examination was inadequate or provide examples of inadequacies in any examination report. The Board finds the February 2018 VA examination was adequate for rating purposes. The examination was thorough, including an interview of the Veteran, descriptions of the Veteran’s symptomatology, and a complete review of the claims file. The examination report describes his PTSD in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Further, the February 2018 VA examination was the basis for the grant of service connection for PTSD. In his Form 9, the Veteran stated that he “…takes exception to and perseveres for appeal all errors the VA Regional Office may have made … include[ing] … failure to discharge the duty to assist[.]” However, neither the Veteran nor his attorney specify what failures they believe VA made in discharging its duty to assist. Neither the Veteran nor his attorney have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to an initial disability rating in excess of 30 percent for PTSD is denied. Disability evaluations are determined by applying VA’s rating schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on criteria identified by DCs. 38 C.F.R. § 4.27. When reasonable doubt arises as to the degree of disability the issue will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is rated at 38 C.F.R. § 4.130, DC 9411 under a General Rating Formula for Mental Disorders. A 30 percent rating applies to 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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-term 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. A 70 percent is assigned 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; obsessed 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. A 100 percent is assigned 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. The symptoms listed above are just examples of degree of impairment, and consideration also must be given to factors outside the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. Id. VA shall assign an evaluation 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. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran contends he is entitled to a higher disability rating for his PTSD. In a March 2018 VA medical record, it was noted that the Veteran was oriented to person, place, time, and setting. His mood was fair and he had a full range of affect. His thought process was linear and its content was devoid of delusions. He denied suicidal ideation and homicidal ideation. His insight and judgment were fair. A March 2018 mental health psychiatry note showed that the Veteran thought that his Zoloft worked “great” for control of his depressed mood. He stated that he felt more motivated to pursue interests. He felt hopeful with the way things were transitioning. He denied suicidal ideation. He stated he had a mild increase in appetite. He reported that his sleep remained chronically poor. He felt anxious around loud noises, including fireworks and motorcycles. He did not have concerns regarding irritability. He attempted to go out and socialize with others and stated he had better tolerance of social situations. He reported nightmares once or twice a month, hypervigilance, startle response, flashbacks, and avoiding large venues such as Walmart. His wife attended the consultation with him and stated that it was noticeable when the Veteran did not take his Zoloft. In a May 2018 VA medical record, it was noted his affect was euthymic. His thought process was linear, coherent, and goal oriented. He denied homicidal ideation. His insight and judgment were fair. A separate May 2018 VA treatment record noted that he was unemployed due to his orthopedic disabilities. A November 2018 VA treatment report notes that the Veteran went off of his sertraline when he began blood pressure medication, and that he felt he needed a new medication to help with his depression and PTSD. He was prescribed venlafaxine. It was noted that he was unemployed due to his orthopedic disabilities. A December 2018 VA treatment record noted that the Veteran’s venlafaxine provided good control over his symptoms. A separate December 2018 record noted that he was unemployed because of orthopedic disabilities. In the January 2019 VA medical record, it was noted that the Veteran stated he has a lot of stressors in his life and felt anxious and overwhelmed. He denied current suicidal ideation. His affect was euthymic. He denies homicidal ideation. He did not have hallucinations or delusions. His insight and judgment were fair. The quality of his sleep was “up and down.” He was married and lived with his wife and son. In the February 2018 VA examination, the VA examiner determined the Veteran has occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, or symptoms controlled by medication. Symptoms noted were anxiety, chronic sleep impairment, and disturbances of motivation and mood. He also had avoidance of reminders of his stressor, persistent negative emotional state, irritable behavior, exaggerated startle response, and problems concentrating. Under social/marital/family history, it was noted that the Veteran has been married two times, and he has been with his current wife for fourteen years. He has three children. He reported a “decent relationship” with family. He has hobbies of fishing, Nascar, and working on an old tractor. Under relevant occupational and educational history, it was noted that he worked at a plant for over five years, maintenance at a children’s home for a year, landscaping for seven years, and Michelin Tire for five years. The Board finds the Veteran’s PTSD is more closely approximated by the criteria for a 30 percent disability rating. The 50 percent criteria require occupational and social impairment with reduced reliability and productivity, and reduced reliability and productivity is not shown for the reasons below. The Veteran’s depressed mood, anxiety, and chronic sleep impairment are directly contemplated by the 30 percent criteria. The Veteran has depressed mood and anxiety. Simply because the 50 percent criteria contemplate “disturbances of motivation and mood,” and the 70 percent level contemplates a deficiency in “mood” among other areas, does not mean his PTSD rises to the 50 or 70 percent level. Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. Id. Here, the Veteran’s depressed mood and anxiety are expressly contemplated by the 30 percent criteria. 38 C.F.R. § 4.130. His depressed mood and anxiety do not result in reduced reliability and productivity. The Veteran is adequately compensated for that impairment. Although the evidence of record indicates the Veteran has been married two times, this does not indicate he has difficulty in establishing and maintaining effective work and social relationships. In particular, in the February 2018 VA examination, it was noted he reported a decent relationship with his family and had been married to his current spouse for 14 years. The frequency, severity, and duration of his feelings of anxiety, depression, and his sleep impairment are not such that they cause reduced reliability and productivity. As noted above, the Veteran is unemployed due to orthopedic disabilities and not due to his psychiatric symptoms. Thus, his symptoms do not impair his ability to be productive at work. The evidence does not show that these symptoms impair his ability to be productive at home. He was independent in his activities of daily living, competent to manage his funds, and did not require assistance for tasks due to his psychiatric symptoms. Additionally, his anxiety, depression, and sleep impairment did not impair his ability to be reliable, that is, to be trusted or perform consistently well. In light of the foregoing, the Board finds that a 30 percent disability rating best approximates the overall severity of the Veteran’s service-connected PTSD, an increase beyond that level is not warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. In the February 2019 NOD, the Veteran’s attorney contended that the Veteran is entitled to an TDIU due to his service-connected disabilities. When entitlement to TDIU under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has a 30 percent disability rating for his PTSD; and 10 percent disability rating for his bilateral knee conditions. The combined rating for compensation is 50 percent from January 16, 2018. Thus, the criteria for consideration of a schedular TDIU are not met. If the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). In the Veteran’s VA medical records, there are consistent notes that he is unable to work due to his service-connected knee condition. In the July 2018 VA knee examination, the VA examiner noted that the Veteran’s bilateral knee condition impact his ability to perform any type of occupational tasks because he is unable to squat or kneel. Other VA treatment records state that he is unemployed due to his orthopedic disabilities. The Board is precluded from granting a TDIU on an extraschedular basis in the first instance and must refer the matter to the Director of Compensation Service for the initial adjudication. 38 C.F.R. § 4.16 (b); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director of Compensation Service or designee determines that an extraschedular TDIU is not warranted does the Board then have jurisdiction to decide the issue on its merits. The evidence suggests the Veteran is unable to work as a result of his service-connected bilateral knee condition. Thus, the Board finds that entitlement to a TDIU is referred to the Director of Compensation Service for adjudication in the first instance. The matters are REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU to the Director of Compensation Service for consideration pursuant to 38 C.F.R. § 4.16 (b). 2. If the claim is denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond. The case should then be returned to the Board, if in order, for further review. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Associate Counsel 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.