Citation Nr: 20042374 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 09-20 956 DATE: June 23, 2020 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective April 30, 2008. REMAND Entitlement to service connection for a right shoulder disorder, to include as secondary to cervical spine fusion, is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s symptoms of PTSD more nearly approximate occupational and social impairment with deficiencies in most areas; his symptoms do not more nearly approximate total occupational and social impairment. 2. The Veteran’s service-connected PTSD, when evaluated in association with his education and occupational experience, have rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411. 2. Effective April 30, 2008, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1957 to December 1958 and February 1959 to September 1983. He was awarded several medals, including the Purple Heart and Combat Infantry Badge. The issues of entitlement to an initial higher rating for PTSD and entitlement to a TDIU come before the Board of Veterans’ Appeals (BVA or Board) from July 2008 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a November 2014 rating decision, the RO granted an increased rating of 50 percent for PTSD, effective August 2014. These issues of entitlement to an initial higher rating for PTSD and entitlement to a TDIU were denied in a July 2010 Board decision. The Veteran appealed the July 2010 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a March 2012 Memorandum Decision, the Court vacated the Board’s decision as to both issues and remanded them back to the Board for further development. In August 2012 and February 2016, the Board remanded these issues for further development. In a December 2018 decision, the Board again denied the claims for entitlement to an initial higher rating for PTSD and entitlement to a TDIU. The Veteran appealed to the Court again, and in January 2020 the Court granted a Joint Motion for Remand (JMR), which vacated the December 2018 decision and remanded the issues back to the Board. The issue of entitlement to service connection for a right shoulder disorder comes before the Board from a November 2018 rating decision. In February 2019, the Board remanded this claim for additional development. Increased Rating 1. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder, prior to August 26, 2014, and to a rating higher than 50 percent, thereafter. Service connection for PTSD was established by a July 2008 rating decision, at which time a 30 percent rating was assigned, effective April 2008. A notice of disagreement with the rating assigned was received in September 2008. In a November 2014 rating decision, the RO granted an increased rating of 50 percent for PTSD, effective August 2014. Disability ratings are 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 evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21. Vet. App. 505 (2007). The Board has considered the entire record, including the Veteran’s VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130, Diagnostic Code 9411, is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of the Veteran’s occupational and social impairment. Under Diagnostic Code 9411, a rating of 50 percent is warranted when 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 (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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; and the inability to establish and maintain effective relationships. A 100 percent evaluation 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. The Board finds that an initial evaluation of 70 percent, for the entire period on appeal, is warranted. A May 2008 private treatment note indicates the Veteran reported his symptoms fluctuated in intensity through the years, where he has periods of time that he feels better but then the symptoms get worse and he has full blown anxiety symptoms. The psychiatrist indicated the Veteran had significant nightmares and flashbacks, severe symptoms of anxiety, restlessness, indecisiveness, became easily angered, and unable to relax. On examination, he was very anxious, restless, and very tearful. He denied any auditory or visual hallucination, suicidal ideation or homicidal ideation; however, the Veteran admitted to depressed mood and anxious mood, feeling hopeless and helpless, and that he sometimes questioned life. The psychiatrist stated the Veteran’s concentration and attention were somewhat affected. The Veteran was afforded a VA examination in June 2008, at which time he reported he retired due to having an anxiety attack at work, resulting from noises such as the ringing of a telephone. The examiner noted that the Veteran’s anxiety attack at work occurred in April, the anniversary month of the Veteran being shot in Vietnam. In July 2008, the Veteran reported trouble sleeping, flashbacks, and nightmares. In October 2008, he stated that his mind wandered all night and that he was very worried. An evaluation revealed the Veteran was still very anxious. In January 2009 he reported that he continued to have dreams, could not take crowds, avoided people, and was housebound. In March and June of 2009, the Veteran indicated that he was continuing to experience anxiety, feeling on high alert, having bad dreams and that he was easily angered. He reported suffering from “bolts of” anger, anxiety attacks with hyperventilation, and that he had no patience. The Veteran was afforded a VA examination in August 2014, at which time the examiner found that the Veteran had total social and occupational impairment. The Veteran said he was limited socially and felt estranged from others. The examiner noted that the Veteran cared for his disabled wife and that “[g]iven an ideal situation, no wife to care for and no physical disabilities, this Veteran would be able to work but with compromised efficiency, intermittent periods of inability to work (due to the sleep issues) and with reduced reliability and productivity.” When the examiner questioned him, this appeared “to be the level of work impairment from his PTSD that presented prior to the presentation of his physical disabilities.” The Veteran appeared at the examination in disheveled clothing and exhibited shortened attention with moderate level of eye contact. The examiner stated that the Veteran’s deliverance of language was compromised by some language fluency issues, some short attention issue and problematic concentration issues. His thought process was noted with loose associations, some flight of ideas and some perseveration of speech in that all thought processing returned to the circumstances of his wife, which compromised his ability to fully communicate his thoughts. The Veteran’s memory was challenged with mild memory loss for names, directions and recent events, though the long-term memory appeared relatively intact. In addition, he was unable to sleep and avoided social situations on a daily basis. The examiner said that “[o]ne hundred percent of [the Veteran’s] time is spent with his wife or close and extended family members who try to assist when they can. So this Veteran’s need for social seclusion and limited interaction with others on a daily basis is hidden by the wife’s inability to socialize and interact.” The examiner opined that “[i]t is possible to say that there is a 50/50 probability that, in spite of this Veteran’s service connected PTSD, he would be able to secure gainful occupation in a sedentary employment setting with limited interaction with others though his reliability and productivity would be compromised and reduced given intermittent periods of his inability to get to work and perform his occupational tasks.” The examiner stated that the Veteran’s role of caretaker for his wife has compromised his own mental health and has intensified his own mental health issues. Throughout the entire period on appeal, the Veteran has had continuous depression and anxiety, thoughts of hopelessness and questioning life, the inability to adapt to stressful situations, unprovoked irritability and angry outbursts, social isolation and estrangement from others, impaired concentration and the ability to effectively communicate, as well as impaired thought processes and mild memory loss. The Board resolves all reasonable doubt in favor of the Veteran and finds that the assignment of a 70 percent evaluation should be assigned throughout the entire appeal period. The evidence of record reflects an overall disability picture of occupational and social impairment with deficiencies in most areas, and accordingly, the Board grants an initial 70 percent evaluation for PTSD. The Board does not, however, find that a 100 percent evaluation is warranted at any time during the appeal period. While the Veteran has demonstrated significant symptoms associated with his PTSD, overall evidence is not reflective of total occupational and social impairment. The evidence shows that the Veteran has suffered from depression and anxiety, and that his irritability and isolation have caused problems in social and occupational functioning. However, the evidence does not show that it has caused him total functional/social impairment. Although he was noted to have some short attention issues and problematic concentration issues and his thought process was noted with loose associations, some flight of ideas and some perseveration of speech, he has not at any time been shown to have severe cognitive impairment, such as gross impairment in thought processes or communication. The Veteran has been fully oriented for examinations. The Board acknowledges that the Veteran demonstrated some memory impairment, but it was noted that his long-term memory was intact. The Veteran has never been found to be in persistent danger of hurting himself or others and has not shown any grossly inappropriate behavior. Although he had disheveled clothing at the August 2014 VA examination, it was noted he had appropriate hygiene. The Veteran has reported that he has difficulty with relationships. He has, however, been able to maintain family relationships, such as those with his siblings and children. In June 2008, the Veteran reported he attended church every Sunday, enjoyed reading and had good relationships with his children. The Board acknowledges that the August 2014 VA examiner indicated that the Veteran had total occupational and social impairment; however, the examiner explained that if the Veteran did not have a wife to care for and had no physical disabilities, he would be able to work but with compromised efficiency, intermittent periods of inability to work (due to the sleep issues) and with reduced reliability and productivity. Furthermore, during the August 2014 VA examination, the Board notes that the Veteran himself reported that he is a caretaker for his wife, and that he cooks meals and cleans the house. As such, based on the evidence, the Board finds that the Veteran clearly has significant, though not total, social and occupational impairment. The Board has also considered the Veteran’s symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 100 percent rating. See Mauerhan, 16 Vet. App. at 443; Vazquez-Claudio v. Shinseki. Though the Veteran’s symptoms have been shown to be significant and manifest with frequency, the Board, in weighing all of the evidence, does not find that these symptoms are of a comparable severity to the symptomatology required for a rating of 100 percent. The Board also acknowledges that the Veteran has significant interference with his ability to work, which is reflected in the now assigned 70 percent rating. Moreover, the Board points out that the standards for the assignment of a TDIU are not the same as those for a 100 percent evaluation for a psychiatric disorder. While a TDIU may be warranted when a person is unable to follow a substantially gainful occupation, a 100 percent rating for a psychiatric disorder states that total occupational and social impairment is needed. 38 C.F.R. §§ 3.340, 4.130. In this case, the Veteran’s symptoms have not been shown to be so severe that he has total social and occupational impairment due solely to his PTSD. At no time has any VA examiner found this to be the case, and the Board finds that this is also not reflected in the Veteran’s treatment records or his own personal statements. The Board notes that the lay assertions of the Veteran have been considered and are part of the reason why a 70 percent initial evaluation has now been assigned for the entire appeal period. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran may believe that a 100 percent evaluation for PTSD is warranted, these assertions are outweighed by more probative evidence provided by the examinations of qualified medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). Furthermore, the symptoms described in the Veteran’s lay statements are consistent with those noted in the treatment records and comport with the 70 percent rating that has now being assigned. As such, these lay statements do not provide any basis upon which to assign any higher rating. In sum, the Board finds that the Veteran’s impairment due to his PTSD has been most consistent with a 70 percent disability rating, but no higher, for the entire period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. See Gilbert, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b). TDIU 2. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. Without regard to advancing age or impairment due to nonservice-connected disabilities, if the schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies); provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a Veteran fails to meet the percentage standards set forth in § 4.16(a) but is unemployable by reason of service-connected disabilities, the claim may be submitted for extraschedular consideration. 38 C.F.R. § 4.16 (b). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Marginal employment shall not be considered substantially gainful employment. Consideration shall be given in all claims to the nature of employment and the reason for termination. 38 C.F.R. § 4.16. An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a Veteran’s service-connected disabilities alone are of sufficient severity to render the Veteran unable to secure or follow a substantially gainful occupation. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994); Beaty v. Brown, 6 Vet. App. 532, 534 (1994); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991). As a result of this Board decision, effective April 30, 2008, the Veteran is rated as 70 percent disabled for PTSD. He is also service connected for status post wound of abdomen as 30 percent disabling, effective February 1986; splenectomy, rated as 30 percent disabling from February 1986; cervical spinal fusion, rated as 30 percent disabling from June 2017; tinnitus, rated as 10 percent disabling from June 2017; malaria, as noncompensable from February 1986; left cheek scar as noncompensable from February 1986; and bilateral hearing loss, as noncompensable from June 2017. He has a combined rating of 90 percent. Here, the Veteran meets the schedular criteria for a TDIU rating, so the remaining question is whether the Veteran’s disabilities cause him to be unable to secure or maintain a substantially gainful occupation. In the Veteran’s July 2013 VA Form 21-8940, he reported he completed three years of college and had no additional education or training. He indicated he last worked as a medical file clerk from December 1999 to May 2006 and then worked part-time until June 30, 2007. A VA Form 21-4192 completed by his employer confirmed that his last day of work was June 30, 2007, when he became unable to perform job duties. In a May 2008 private treatment note, the psychiatrist noted that after finishing his military service in 1983, the Veteran worked at a VA hospital in medical records for 13 years where he did not have interaction with others at all and “that is how he was able to keep that job.” In June 2008, the Veteran was afforded a VA PTSD examination. He explained that he worked as a medical records clerk at a VA medical hospital until April 2007, when he suffered a panic attack and could not work anymore. The Veteran reported that the phones were ringing, and he experienced an anxiety attack. He stated he attempted to work part-time, but he could not “take that either.” The examiner opined that the Veteran’s panic attack occurred in April, the anniversary month of being shot three times while in Vietnam and was likely due to his PTSD. The Veteran was afforded a VA examination in August 2014 for his PTSD. The examiner opined the Veteran had total occupational impairment, but stated “[g]iven an ideal situation, no wife to care for and no physical disabilities, this Veteran would be able to work but with compromised efficiency, intermittent periods of inability to work (due to the sleep issues) and with reduced reliability and productivity.” However, the Veteran exhibited attention and concentration issues, difficulty communicating his thoughts, and mild memory loss. An August 2014 VA examination for his service-connected splenectomy noted that the Veteran has had intermittent episodes of bowel obstruction that have required hospitalization due to the abdominal surgery (with splenectomy) he had following his in-service gunshot wounds. An August 2017 VA examination for hearing loss indicated that the Veteran’s service-connected hearing loss affected the Veteran’s ordinary conditions of daily life, including ability to work, in that he has difficulty understanding people. An October 2017 VA examination for the Veteran’s cervical spine fusion indicates the Veteran reported sharp pain with any motion of the cervical spine. Examination revealed the Veteran had a limited range of motion of the cervical spine. It was noted that the Veteran regularly used a cane and occasionally a walker; unfortunately, although the examiner stated these were needed for balance, it was not specified that this was due to his service-connected disability. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). In considering the question of the Veteran’s capability of securing and following substantially gainful employment, although he is qualified and likely capable of performing less physically demanding work, he would have significant difficulty communicating with others due to his PTSD, as well as difficulty maintaining employment due to problems concentrating, fatigue due to chronic sleep impairment, near constant depression, irritability, anxiety attacks, mild memory loss, and difficulty in adapting to stressful circumstances due to his PTSD. Resolving all reasonable doubt in his favor, the Board finds that the Veteran’s service-connected PTSD precludes him from following a substantially gainful occupation. Therefore, entitlement to a TDIU is granted, effective April 30, 2008. REASONS FOR REMAND 3. Entitlement to service connection for a right shoulder disorder, to include as secondary to a cervical spine fusion. The Veteran was afforded a VA examination in July 2019, at which time he was diagnosed with a shoulder strain, shoulder impingement syndrome, and glenohumeral osteoarthritis. It was also noted that he had a prior diagnosis of bicipital tendonitis in 2015. The examiner opined that the Veteran’s right shoulder disorder is less likely than not aggravated by his service-connected cervical spine fusion; however, the rationale provided pertained only to causation, not aggravation. Additionally, while the examiner provided an opinion for the Veteran’s osteoarthritis, shoulder strain and impingement syndrome, no opinion or discussion was offered regarding his diagnosed bicipital tendonitis. On remand, an addendum opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion for the Veteran’s right shoulder disorder. The examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability): a) that the Veteran’s right shoulder strain is aggravated (beyond a natural progression) by his cervical spine fusion; b) that the Veteran’s right shoulder impingement syndrome is aggravated (beyond a natural progression) by his cervical spine fusion; c) that the Veteran’s glenohumeral osteoarthritis is aggravated (beyond a natural progression) by his cervical spine fusion; and, d) that the Veteran’s right bicipital tendonitis is proximately due to OR aggravated (beyond a natural progression) by his cervical spine fusion. The examiner should consider and discuss the Veteran’s assertions that his right shoulder pain and functional limitations began after his cervical spine fusion. A complete rationale should accompany any opinion provided. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.