Citation Nr: 20026090 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 15-32 136 DATE: April 15, 2020 ORDER A rating is excess of 50 percent for posttraumatic stress disorder (PTSD) from prior to February 16, 2015, is denied. A rating is excess of 70 percent for PTSD effective February 17, 2015, is denied. A TDIU prior to February 17, 2015, is denied. FINDINGS OF FACT 1. Prior to February 16, 2015, the Veteran’s PTSD was not manifested by occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood. 2. Effective February 17, 2015, the Veteran’s PTSD is not manifested by total occupational and social impairment. 3. Prior to February 17, 2015, the Veteran’s service-connected disability did not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to February 16, 2015, the criteria for a disability evaluation in excess of 50 percent for the Veteran’s service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 9411. 2. Effective February 17, 2015, the criteria for a disability evaluation in excess of 70 percent for the Veteran’s service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 9411. 3. Prior to February 17, 2015, the criteria for a total disability rating due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to December 1969. In an August 2018 Remand, the Board remanded the issues of a rating in excess of 50 percent for PTSD from August 1, 2013 to September 8, 2015, and a rating in excess of 70 percent effective September 9, 2015. The Board also remanded the issue of entitlement to a TDIU prior to September 9, 2015. The RO issued a February 2020 rating decision in which it increased the Veteran’s rating for PTSD to 70 percent effective February 17, 2015. It also granted the TDIU effective February 17, 2015. Consequently, the time periods under consideration are (1) prior to February 16, 2015, and (2) from February 17, 2015, to the present. Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, however, an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s service-connected PTSD has been rated by the RO under the provisions of Diagnostic Code 9411. Under this regulatory provision, a 50 percent is warranted if the Veteran experiences 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Prior to February 16, 2015 In a November 2014 Statement in Support of the Claim (which was received in February 2015), the Veteran stated that he had obsessive, ritualistic behaviors which interfered with routine activities. He also stated that he had panic attacks, and that his PTSD had gotten worse. The treatment records fail to reflect any of these reported symptoms. There is absolutely no mention of obsessive, ritualistic behavior or panic attacks. A January 2014 examination report was remarkable for neat grooming and hygiene, adequate eye contact, nonpressured speech, normal psychomotor activity, calm and euthymic affect of full range, linear and nondelusional thinking, absence of internal preoccupation, absence of cognitive changes, absence of suicidal or homicidal ideation, and unimpaired judgement or impulse control. The examiner noted that the Veteran had been married for 15 years, that he did not have any psychotic symptoms, his mood was better with pain control, and that his PTSD was manifested by episodes of anger and some nightmares. He was also noted to have passive thoughts of suicidal ideation, but no active thoughts. Reports dated April 2014, July 2014, and October 2014 were substantially similar to the January 2014 report. The October 2014 report noted that the Veteran had good social support and adequate environment. He had limited healthy coping skills and chronic pain. The Veteran submitted lay statements from friends J.S. and R.B. The latter was someone who had known the Veteran for three years, as they attended a PTSD group together. He attested to the Veteran’s reporting of nightmares, feelings of guilt, and isolation. J.S. stated that the Veteran has been unable to work since 2011 due to major shifts in mood swings, rage, anger, anxiety, agitation, sleeplessness, problems handling feelings, strange thoughts and self-isolation. The Veteran’s wife also submitted a statement attesting to the Veteran’s trouble sleeping, severe mood swings, irritability, depression, and isolation. She stated that the Veteran had no friends and that they hardly ever socialize anymore. In order to warrant a rating in excess of 50 percent, the Veteran’s PTSD must be manifested by occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. Neither the medical evidence nor the lay statements reflect evidence that satisfies that criteria for a 70 percent rating. Despite the Veteran’s contentions regarding obsessive and ritualistic behavior, and panic attacks, these symptoms are not shown prior to February 17, 2015. The Veteran has not been shown to have the inability to establish and maintain effective relationships. He has been married for many years, and he submitted statements from two friends. These statements and the medical records reflect that the Veteran attends a PTSD group. The Veteran has not been shown to be unable to function independently, appropriately, and effectively. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 50 percent, prior to February 17, 2015, for PTSD must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective February 17, 2015 Effective February 17, 2015, the Veteran’s PTSD has been rated as 70 percent disabling. The Veteran underwent a VA examination in April 2015. He reported that he had been married to his 3rd wife for 15 years and that the marriage was “rough.” He stated that he suffered from pain, and he got angry at people. Upon examination, the Veteran demonstrated symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; 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, and inability to establish and maintain effective relationships. The Veteran was well groomed and made good eye contact. His speech was of a normal rate and volume. His mood was mildly depressed. His affect was normal. He had clear sensorium, and average intelligence. He was coherent and logical. He denied suicidal and homicidal ideation. He denied hallucinations. He had good judgment and insight. The Veteran reported that his wife managed bills because he forgot a lot and had concentration problems. He stated that he was still very isolative and avoided crowds. He stated that he did not have any friends and prefered to stay home. He reported that he got angry more often as a result of taking hydrocodone for foot pain. He stated that he got 4-6 hours of sleep every night (in part due to sleep apnea and waking up due to foot pain). His appetite was fine. His energy and interests were low. He denied suicidal ideations. He had mild anxiety but no panic attacks. He denied mania/psychosis. The examiner found that the Veteran’s PTSD symptoms were not considered of the nature or severity that would preclude gainful employment. The examiner noted that the Veteran could become emotionally overwhelmed and unfocused at times; however, the examiner opined that the symptoms were not to the degree where the Veteran would be unable to work. The examiner found that the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity. To warrant a rating in excess of 70 percent, the Veteran’s disability must be manifested by 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The Veteran is undoubtedly impaired both socially and occupationally, but his level of impairment is not total. Neither the April 2015 VA examination, nor any of the subsequent treatment records reflect any of the enumerated symptoms. Moreover, the April 2015 VA examination found the Veteran to have only occupational and social impairment with reduced reliability and productivity (the criteria for a 50 percent rating). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 70 percent effective February 17, 2015, for PTSD must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A TDIU prior to February 17, 2015 In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible 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.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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 his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19 (2016). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran’s only service-connected disability is PTSD. Prior to February 17, 2015, his PTSD has been rated as 50 percent disabling. Thus, prior to February 17, 2015, the Veteran does not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). The Board must still determine whether the Veteran’s service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to a TDIU. The evidence does not demonstrate that the Veteran was unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disability prior to February 17, 2015. As noted above, treatment reports dated prior to February 17, 2015, reflect that the Veteran’s PTSD was manifested by episodes of anger and some nightmares. He was also noted to have passive thoughts of suicidal ideation, but no active thoughts. The April 2015 VA examiner found that the Veteran’s PTSD symptoms alone did not preclude employment. A review of records from the Social Security Administration (SSA) reflect that the Veteran “has had numerous problems related to bilateral plantar fasciitis, had excision of fibroma on the left foot . . . and has had considerable pain. It is reasonable to assume that [the Veteran] has experienced this pain along with back pain . . . . Considering [the Veteran’s] advanced age, it is unlikely he would be successful in a standard workplace setting.” The SSA records do not contain any findings that would suggest that the Veteran is unemployable due to PTSD symptoms. Notwithstanding the lay statements by J.S., R.B., and the Veteran’s wife, and the contentions by the Veteran that regarding obsessive and ritualistic behavior, and panic attacks, these symptoms are not reflected in the treatment records. There is no persuasive evidence of record demonstrating that the Veteran’s service-connected disabilities alone rendered him unable to obtain and retain substantially gainful employment prior to February 17, 2105, nor is the evidence in a state of equipoise on that question. As such, the Veteran’s claim for a TDIU prior to February 17, 2015, is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.