Citation Nr: 20028869 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 13-28 787 DATE: April 24, 2020 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. FINDING OF FACT Throughout the period on appeal the Veteran’s posttraumatic stress disorder has not manifested as 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; intermittently inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1950 to September 1970. The Veteran died in November 2017 and the Appellant is his surviving spouse. VA granted the Appellant’s request for substitution in July 2019. As discussed further below, the Appellant is pursuing the increased rating and total disability rating based on individual unemployability (TDIU) claims that were pending at the time of the Veteran’s death. The Veteran filed a claim for an increased rating for his service-connected posttraumatic stress disorder (PTSD) in June 2009. This matter originates from a January 2010 rating decision of a Department of Veteran’s Affairs (VA) Regional Office (RO) that raised the Veteran’s disability rating for PTSD to 50 percent, effective June 2009. The Veteran timely initiated an appeal of that decision in January 2010 and in a September 2010 rating decision was granted a disability rating of 70 percent, effective June 2009. In a January 2011 written statement to VA, the Veteran expressed his belief that he was entitled to a higher rating; the 70 percent rating was continued by a June 2012 rating decision. The Veteran timely appealed the June 2012 decision in July 2012. Following the issuance of an August 2013 statement of the case, the Veteran perfected his appeal by Form 9 in September 2013. As noted above, the Veteran died in November 2017 and the Appellant’s request for substitution was granted in July 2019. With regard to the Veteran’s TDIU claim, the Board notes that he filed an express claim for TDIU in June 2011. The record reflects that the RO developed the TDIU claim through a July 2011 Request for Employment Information to the Veteran’s employer, but no decision on the TDIU claim was ever issued. Generally, the Board will not exercise jurisdiction over claims not decided by the RO. 38 U.S.C. § 7104. However, a claim for entitlement to TDIU is inferred from a claim for an increased rating where there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, as the Veteran’s increased rating claim, of which his TDIU claim is an inherent part, has been properly appealed to the Board, the Board finds no prejudice in exercising jurisdiction over the TDIU claim for the purposes of remanding the claim to the RO for appropriate development and adjudication. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder The Appellant contends that, throughout the period on appeal, the Veteran was entitled to a disability rating for PTSD in excess of 70 percent. 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. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Effective throughout the period on appeal, the Veteran’s PTSD was assigned a rating of 70 percent. A disability rating of 70 percent under 38 C.F.R. § 4.130 requires a showing of 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 worklike setting); and/or inability to establish and maintain effective relationships. The next highest available rating is 100 percent, which requires a showing of 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; intermittently inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. In September 2009 VA received a mental health evaluation completed by a private treating provider (Dr. B.). Dr. B. noted that for the past 8 years, the Veteran had been employed as an English teacher for special education students by his local school district. Dr. B. noted that the Veteran gave a logical and coherent history and was considered a reliable historian. The Veteran demonstrated no evidence of hallucinations, delusions, or homicidal ideation. Dr. B. noted that the Veteran’s remote memory functions were “essentially” intact, but that he had “some difficulty” with immediate and recent memory. Dr. B. opined that the Veteran’s cognitive skills were adequate to administer to his own financial affairs and activities of daily living. Dr. B. found that the Veteran was able to understand simple and complex commands, as well as retain and implement them. Socially, he was estranged from his biological children from his first marriage. However, he felt close with his step-children from a second marriage. A January 2010 psychiatry note documents that the Veteran reported no auditory or visual hallucinations, though he did report frequent nightmares, flashbacks in response to images on television, and an increased startle response. In a November 2010 written statement to VA, the Veteran stated that his symptoms were so intense that they were impairing his job performance; however, he did not provide any functional descriptions of these impairments. In a January 2011 written statement to VA, the Veteran reported that at times his anxieties affected him so vividly that he would be forced to leave the classroom where he was working. The Veteran also stated that he would become “explosive” when dealing with students in an “adverse situation.” In August 2011 VA received an opinion from another private mental health provider (Dr. G.). Dr. G. noted that the Veteran showed impaired attention and/or focus, and that he reported panic attacks occurring at least one a week. Dr. G. documented that there was no report or observation of delusions or hallucinations. Dr. G. noted that “[o]bsessive-compulsive behavior is present, but not severe enough to interfere with routine activities.” Dr. G. noted that the Veteran’s thought processes were impaired as he had “difficulty understanding directions [and] often does not recall the beginning of a command by the time [the] full request is completed.” Dr. G. concluded by opining that “[t]he best description of the claimant's current psychiatric impairment is psychiatric symptoms [that] cause occupational and social impairment with deficiencies in most areas . . .” Socially, while he reported having no friends due to trust issues, the Veteran was married and reported that the relationship was good. He also had a good relationship with his mother. In an October 2011 statement to VA the Veteran stated that he felt he was “trapped in a living hell.” The Veteran was afforded a VA examination in February 2016. The VA examiner documented a report from the Veteran that his marriage was good. The Veteran reported that he had difficulty staying calm at work. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including in work or worklike settings. However, the February 2016 VA examiner concluded that there was no objective evidence that the Veteran’s PTSD symptoms had worsened during the period on appeal. In October 2017 the Veteran testified before a VA Decision Review Officer that he experienced nightmares that interfered with his rest, making it hard to perform his job duties. The Veteran also reported experiencing anger issues “every day” with his wife and the students with whom he worked. In March 2020 the Appellant testified at a Board of Veterans’ Appeals (Board) hearing. The Appellant testified that the Veteran was sometimes “hyper” and anxious, and that he insisted on facing the door and repeatedly checking door locks. The Appellant also testified that the Veteran worked full time until his death; that she never knew the Veteran to experience any hallucinations or delusions; and that the Veteran did not have any issues remembering names or staying focused. The Appellant testified that while the Veteran did not have contact with his grandchildren due to his anxiety, he did speak with his daughter on a weekly basis, did not self-isolate at home, and attended both church and Veterans’ Service Organization meetings. The Board finds that the Veteran’s PTSD, by itself, did not result in total occupational and social impairment. There is no medical or lay testimony reflecting delusions or hallucinations; grossly inappropriate behavior; gross impairment in thought processes; danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The record does reflect some occupational and social impairment, manifesting particularly as difficulty in adapting to stressful circumstances; difficulty maintaining effective relationships; and near continuous panic or depression. However, the Veteran was married, had some participation in church and some contact with family members. In light of the foregoing, the Board concludes that the weight of the evidence is against the application of an evaluation in excess of 70 percent for the Veteran’s PTSD; thus, there is no question to resolve and the lower rating is appropriate. 38 C.F.R. § 4.130. In light of the foregoing, a grant of a disability rating in excess of 70 percent for PTSD for the period on appeal is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability is remanded. VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. If there is only one such disability, this disability shall be ratable at 60 percent or more; 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. The Veteran had a combined disability rating of 90 percent, and at least one single disability rating of 40 percent or more, throughout the period on appeal. Thus, the remaining question is whether the Veteran’s service-connected disabilities precluded him from obtaining and maintaining any form of substantially gainful employment during the period on appeal. In deciding a Veteran’s TDIU claim, consideration shall be given in all claims to the nature of any previous employment and the reason for termination, as well as the Veteran’s level of education, special training, and previous work experience. 38 C.F.R. § 4.16. Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). As discussed further below, additional information is required to determine the nature of the Veteran’s employment and his particular circumstances. In June 2011 the Veteran filed the current claim for TDIU. The claim form instructed the Veteran to list all of the last five years of his employment history. He reported only that he had worked as a teaching assistant from August 2010 to June 2011, and that he had lost two months of work due to illness. The Veteran reported a total earned income of $26,000. He indicated that he had completed two years of college education and had no other education or training. In July 2011, in response to a request from VA, the local school district the Veteran identified as his last employer reported that the Veteran was still actively employed as a teacher’s aide, that he had begun his employment in October 2002, and that he had earned $17,447.20 in the preceding 12 months. The information provided by the Veteran in his June 2011 TDIU clam and by his employer in their July 2011 response is generally consistent with information provided by the Veteran in a June 2008 TDIU claim. At his February 2016 VA examination the Veteran reported having earned an associate degree in Arts, Criminal Justice, and Military History and that he worked in the prison system for 11 years following the end of his active service in 1970. In August 2009 a VA examiner documented that the Veteran had been employed for the past 8 years at his local school district. In January 2010 the Veteran reported to a treating provider that he “would like to be able to stop working and have the time to . . . attend counseling and group sessions [for his PTSD”; the Veteran also reported having to leave the classroom where he worked several times a day as a result of incontinence related to his service-connected prostatectomy. The Veteran also reported that worrying about his urinary symptoms impaired his concentration and attention at work. In January 2011, the Veteran stated to VA treating mental health providers that he was “tired” and “thinking about retiring so that he can better focus on his wellness.” In a January 2011 written statement to the Board, the Veteran reported needing to leave the classroom due his “anxieties” and that he would become “explosive” with students in “adverse situations.” In February 2016 the Veteran reported to a VA examiner that he was still employed, but that he had trouble “keeping his cool” when students became confrontational. As discussed above, in October 2017 the Veteran testified before a VA Decision Review Officer that nightmares interfered with his rest, making it hard to perform his job duties, and that his “anger issues” affected his work with students. At her March 2020 Board hearing the Appellant testified that it was her understanding that while the Veteran was employed full time throughout the period on appeal, he was limited in his work duties as a result of his PTSD symptoms, and that his continued employment was related to his friendship with the school principal. However, in March 2010 the Veteran reported to a treating provider that he could not quit his job due to “financial issues.” In October 2011, the Veteran reported to VA treating mental health providers that he had “considered retirement but feels he is too active to slow down that much.” A September 2012 VA treatment note documents that the Veteran was still working in education full time. A February 2012 VA treatment note documents a statement by the Veteran to treating providers that he was “overall doing okay”, and that he continued to work at a local high school. While the record reflects that the Veteran was employed consistently throughout the period on appeal, more complete information is required regarding the nature and circumstances of the Veteran’s employment during and preceding the period on appeal. The Board notes that the Veteran met at least the schedular disability rating requirements for TDIU as early as January 2000; though outside the period on appeal, this information may be probative of the nature and circumstances of his employment during the period on appeal. Thus, on remand, information regarding the nature and circumstances of the Veteran’s employment during and before the period on appeal should be obtained. The matters are REMANDED for the following action: 1. Request that the Appellant provide employment information for the Veteran, including but not limited to names of employers, dates of employment, and annual income, for the period from September 1970 onward. 2. Obtain employment information, including but not limited to, dates of employment, performance reviews, and disciplinary reports, from the employers identified by the Appellant pursuant to Remand Directive 1. 3. Following the completion of Remand Directives 1-2 the RO should readjudicate the issues on appeal. If the benefits sought remain denied, the Appellant and her representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Cody Sametshaw 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.