Citation Nr: 20053545 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 17-47 364 DATE: August 12, 2020 ORDER A higher 70 percent rating, though no greater, is granted for posttraumatic stress disorder (PTSD) and unspecified depressive disorder with anxious distress for the initial period at issue from February 22, 2008 to May 3, 2010. Also, from May 4, 2010 to March 28, 2017, an even higher 100 percent rating is granted for the PTSD and unspecified depressive disorder with anxious distress (the Veteran already has had the maximum 100 percent schedular rating for this mental disorder effectively since March 29, 2017). From February 22, 2008 to May 3, 2010, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. From May 4, 2010 onwards, entitlement to a TDIU is dismissed since moot. FINDINGS OF FACT 1. From February 22, 2008 to May 3, 2010, the Veteran’s PTSD and unspecified depressive disorder with anxious distress caused what amounted to occupational and social impairment with deficiencies in most areas. 2. During the period from February 22, 2008 to May 3, 2010, the Veteran had substantially gainful employment with income above the poverty level, and his work was not in a protected environment or out of accommodation (marginal). 3. Since May 4, 2010, his PTSD and unspecified depressive disorder with anxious distress has caused even greater total occupational and social impairment. 4. Therefore, effectively since May 4, 2010, he has been rated as totally disabled owing to his service-connected mental disorder. CONCLUSIONS OF LAW 1. From February 22, 2008 to May 3, 2010, the criteria are met for a higher 70 percent rating, though no greater, for the service-connected PTSD and unspecified depressive disorder with anxious distress. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. Since May 4, 2010 (so not just since March 29, 2017), the criteria have been met for the maximum possible schedular rating of 100 percent rating for the service-connected PTSD and unspecified depressive disorder with anxious distress. Id. 3. From February 22, 2008 to May 3, 2010, the criteria are not met for entitlement to a TDIU. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 4.1, 4.16. 4. From May 4, 2010 onwards, the appeal for a TDIU is dismissed as moot. 38 U.S.C. § 7105(d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1980 and from May 1981 to December 1982. In August 2011, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer employed at the Board, since having retired. The Veteran therefore had the option of having another hearing before a different judge that would decide this appeal. However, on a subsequent VA Form 9, he indicated he did not want another hearing. In a July 2019 decision, the Board denied a rating higher than 50 percent for the service-connected PTSD prior to May 3, 2010, however, granted a higher 70 percent rating, though no greater, for this service-connected mental disorder from May 4, 2010 to March 28, 2017. [The Veteran already had a 100 percent schedular rating for this service-connected mental disorder as of March 29, 2017.] The Board also denied a TDIU. The Veteran appealed that Board decision to the higher U.S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In January 2020, the Court granted the parties’ Joint Motion for Remand (JMR), vacating the Board’s July 2019 decision – to the extent unfavorable, and remanding the claims back to the Board for further readjudication consistent with the JMR. As agreed in the JMR, the Board’s prior decision failed to adequately consider a private medical opinion the Veteran submitted in December 2016 addressing the severity of his PTSD symptomatology, including impairments of his occupational and social functioning from February 2008 onwards. Increased Ratings 1. A higher 70 percent rating, though no greater, is granted for the service-connected PTSD and unspecified depressive disorder with anxious distress for the initial period at issue prior to May 4, 2010 (i.e., from February 22, 2008 to May 3, 2010) 2. An even higher 100 percent schedular rating is granted for the service-connected PTSD and unspecified depressive disorder with anxious distress for the succeeding period also at issue from May 4, 2010 to March 28, 2017 (a 100 percent schedular rating already is in effect since March 29, 2017) The Veteran’s service-connected PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under this General Rating Formula for Mental Disorders, a 70 percent rating is warranted for 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 work like setting); and inability to establish and maintain effective relationships. Id. A higher 100 percent rating requires 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; and memory loss for names of close relatives, own occupation or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders, so inclusive of DC 9434, are not intended to constitute an exhaustive list, but rather serve as mere 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). Furthermore, as the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has explained that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9434. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency 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. See 38 C.F.R. § 4.126(a). That said, when evaluating the level of disability arising from a mental disorder, the rating agency 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). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. At the outset, the Board notes that, during the pendency of this appeal, the principal medical evidence material to the Veteran’s claim for an increased rating for his PTSD is contained in the reports of August 2015, March 2017, October 2017, October 2019, and March 2020 VA examinations, as well as a June 2010 PTSD Assessment by Dr. P.J. and a December 2016 private examination by Dr. R.I.F. The remainder of the medical treatment records contain no evidence materially inconsistent with the findings of those examinations as they relate to the Veteran’s disability. For reasons and bases that will be discussed, the Board finds that a higher 70 percent disability evaluation is warranted for the initial period at issue prior to May 4, 2010, and that an even higher 100 percent schedular evaluation is warranted for the succeeding period also at issue from May 4, 2010 to March 28, 2017 (so not just as of March 29, 2017). Prior to May 4, 2010 (i.e., from February 22, 2008 to May 3, 2010) Notably, a December 2016 private evaluation by Dr. R.I.F. concluded the Veteran had occupational and social impairment with deficiencies in most areas – such as in his work, family relations, judgment, thinking or mood since February 2008. The Court has held that deficiencies in most of these areas warrant a 70 percent rating. See Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). In support of this conclusion, Dr. R.I.F. noted the Veteran was unable to establish and maintain effective relationships. He was unable to develop intimacy and exhibit a stable mood without constant irritability. At the time of that assessment, he could not name any activities that he participated in that involved others and stated that he had no friends at work. Dr. R.I.F. described the Veteran as alone in the world and incapable of developing relationships or pursuing activities that make life worthwhile. In addition, VA treatment records show that, during this earlier time period, the Veteran endorsed suicidal ideation. Notably, in his September 2015 affidavit, he conceded having thoughts of suicide since his service. When determining the appropriate rating for a service-connected mental disorder, VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability, quantifies the level of occupational and social impairment caused by those symptoms, and assigns an evaluation that most nearly approximates the level of occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). In Bankhead, the Court held that the mere presence of suicidal ideation, alone, may cause occupational and social impairment with deficiencies in most areas (i.e., to warrant assigning a 70 percent disability rating under 38 C.F.R. § 4.130). See Bankhead, 29 Vet. App. at 20. In other words, the Court clarified there need not be actual “intent” or “plan” to commit suicide since even thoughts of it suffice. That method of analysis amounted to erroneously grafting risk of self-harm onto the symptom of suicidal ideation by requiring suicidal “intent” or “plan.” Furthermore, the Veteran also stated that he felt like “his memory is poor” and he “can’t remember where he places things.” He forgot words in conversations and felt like he was “cognitively impaired.” See October 2007 VA Psychology Consultation; May 2009 VA Mental Health Outpatient Note; January 2009 VA Nursing Outpatient Note. When considering the extent of the Veteran’s symptoms and consequent impairment even during this earlier time period, irrespective of whether they are specifically listed in the rating criteria, he had the required deficiencies in most areas to warrant increasing his rating for this initial period at issue from 50 to 70 percent. He did not, however, have the total occupational and social impairment required for an even higher 100 percent schedular rating. As examples, at no time was his speech been intermittently illogical, obscure, or irrelevant. He was not spatially disoriented – including to time, place, person or situation. He did not show neglect of personal appearance and hygiene. He did not have gross impairment of his thought processes or communication. He had memory loss, but the question is to what extent, and it was not shown to have been so severe that he did not remember the names of close relatives, his occupation or name. So, even considering his constellation of symptoms, there was no indication of total occupational and social impairment owing to them. Although he endorsed poor memory, forgetting words, nightmares with flashbacks, and angry outbursts at work, that level of impairment is encapsulated by a 70 percent rating. See Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). In making this determination, the Board has considered the Veteran’s personal belief that his symptoms were of such severity as to warrant an even higher rating. See McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (the Board is required to assess the competency and credibility, and therefore probative weight, of all relevant evidence). However, disability ratings are determined by the application of a schedule of ratings which, as already mentioned, is based on the average impairment of earning capacity – including as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which this disability is evaluated, are more probative than the Veteran’s assessment of the severity of his disability. The examinations also considered his competent (subjective) statements regarding the severity of his disability. Furthermore, the higher 70 percent rating being granted in this decision accounts for the symptoms that he reported experiencing during this earlier time period at issue. For these reasons, the Board finds that a higher 70 percent disability rating, though no greater, is warranted for this initial period at issue prior to May 4, 2010 (i.e., from February 22, 2008 to May 3, 2010).   May 4, 2010 to March 28, 2017 As will be discussed, the Board finds that an even higher 100 percent schedular rating is warranted for this succeeding period that also is at issue from May 4, 2010 to March 28, 2017 (recognizing the Veteran already has had this highest possible schedular rating effectively since March 29, 2017). Most notably, the Veteran suffered from persistent delusions or hallucinations, pervasive suicidal thoughts, and was intermittently unable to perform activities of daily living (ADLs). See May and December 2010 VA treatment notes (Veteran experiencing audio and visual hallucinations); September 2015 Veteran Affidavit (verbally attacked people because he was “paranoid that people are out to get him”); see also April 2017 VA Examination Report. In his September 2015 affidavit, the Veteran attested that he persisted with thoughts of suicide at least every few months and endorsed excessive thoughts about death and when he was going to die. The Veteran’s PTSD was also manifested by symptoms such as being overwhelmed by crowds and loud noises, decreased concentration, panic attacks, frequent depressed mood, anhedonia, forgetfulness, difficulty coping with stress, social isolation, intrusive thoughts and nightmares, avoidance behaviors, insomnia, and low energy. A June 2010 private mental capacity assessment by Dr. P.J. described the Veteran’s degree of limitation as extremely impaired in most categories, including the ability to maintain socially appropriate behavior, complete a normal workday, and sustain an ordinary routine without supervision. Similarly, Dr. R.I.F. stated that the Veteran has no effective familial, social, or workplace relationships with longstanding depression and irritability that leaves him alienated, detached, and isolated. See December 2016 Private Medical Opinion. Dr. R.I.F. described the Veteran as having a joyless, ineffective existence. Accordingly, the Board has resolved all doubt in the Veteran’s favor and finds that an even higher 100 percent disability rating is warranted for his service-connected PTSD as of May 4, 2010 (so not just, instead, as of March 29, 2017). Neither the Veteran nor his attorney has raised any other issues, other than the issue of entitlement to a TDIU addressed below, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the record). 3. Entitlement to a TDIU The Veteran filed this claim for a TDIU in June 2011, asserting that he is unemployable because of his PTSD, which is his only service-connected disability. A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. Here, while the appeal for an increased rating for PTSD and unspecified depressive disorder was pending, the Veteran contended that a TDIU was warranted based on that disability; therefore, the appeal period for the claim for a TDIU dates back to the grant of service connection, February 22, 2008, as the Veteran expressed disagreement with the initial rating assigned. See Rice, 22 Vet. App. at 453-54; Harper, 30 Vet. App. at 362 (The notice of disagreement “placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU [prior to the effective date of the partial grant] remained on appeal.”). As Harper and Payne make clear, the issue of entitlement to a TDIU remains on appeal as part and parcel of the increased rating claim on appeal because it was not granted in full. However, for the reasons and bases discussed below, the Board finds that a TDIU was not warranted from February 22, 2008 to May 3, 2010 and is moot from May 4, 2010 onwards. Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, 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 – provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper or lower extremities are considered one, collective, disability. Id. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body 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), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disability(ies) is sufficiently severe to cause unemployability. 38 C.F.R. § 3.341(a). From February 22, 2008, to May 3, 2010 As a result of this decision, the Veteran has a 70 percent schedular rating for his service-connected PTSD from February 22, 2008 to May 3, 2010. Notably, the Veteran does not contend, nor does the evidence of record show, that he was unemployed during this earlier period. On the contrary, he was working full-time as a restaurant manager. Instead, he argues that his employment was marginal. See, e.g., June 2020 Veteran’s Representative Correspondence. Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual 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. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. §§ 4.16(a), 4.18. In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The Veteran’s June 2011 TDIU application, VA Form 21-8940, shows he was employed full-time (40 hours per week) as a restaurant manager during the relevant earlier period with no time lost owing to his service-connected mental disability. He indicated that his highest gross earnings were $2,200 per month, which would put his annual income at approximately $26,400. He reported leaving that job in March 2010 and review of the record shows he began new employment at the end of May 2010, outside of the relevant time period at issue. In considering whether the Veteran’s earned annual income prior to May 4, 2010 equates to marginal employment, one must recognize that, in 2009, the poverty threshold for one person under 65 years old was $11,161. See http://www.census.gov/hhes/www/poverty/data/historical/people.html. The Board, therefore, finds that his income from February 22, 2008 to May 3, 2010 was clearly above the poverty threshold since more than twice that. He also concedes this fact, but he claims that employment nonetheless was just marginal. As already alluded to, marginal employment also may be held to exist on a facts-found basis, including but not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). A Veteran may be granted a TDIU despite being employed and having an income in excess of the poverty line if his employment is sheltered. Cantrell v. Shulkin, 28 Vet. App. 382, 38991 (2017). Here, however, there is insufficient evidence that the restaurant the Veteran worked for and even managed was considered a sheltered or protected workplace, as it is not shown to be family owned or of the type making significant exceptions or assistance or accommodation to him to remained employed at the company. Thus, his employment is not considered sheltered or marginal. 38 C.F.R. § 4.16(a). The term sheltered workshop is not defined in the regulation applicable to TDIU. However, the Wage and Hour Division of the United States Department of Labor uses the terms sheltered workshop and work center interchangeably to mean a place that has historically provided rehabilitation services, day treatment, training, and/or employment opportunities to individuals with disabilities. Sheltered Workshop, Department of Labor, Wage & Hour Division, Field Operations Handbook, available at http://www.dol.gov/whd/FOH/ch64/64k00.htm. That definition provides some guidance to what the VA regulations may consider a sheltered workplace, and this type of employment is not shown in this instance. Further, while marginal employment also may be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold, the Board does not find that the Veteran worked in a protected environment. The evidence of record does not show that, from February 22, 2008 to May 3, 2010, he was accommodated and assisted at work due to impairment from his service-connected PTSD. Nor is there evidence that his employer has historically been a place that provides rehabilitation services for people with disabilities or that there is any other factor which would cause the place of employment to be considered a sheltered work environment, such that he was employed or continued employment solely because of his status as a disabled Veteran, a disabled person, or a family member. On the contrary, he, himself, noted on the June 2011 VA Form 21-8940 (TDIU application) that he had not yet become too disabled to work and had no time lost from work due to his service-connected disability. The Board finds, on a facts-found basis, that his work environment has not been persuasively shown to have been a protected environment such that he may be deemed to have been employed by his employer despite being effectively unemployable. The Veteran’s disability rating of 70 percent for his service connected PTSD and unspecified depressive disorder with anxious distress reflects significant impairment that would be expected to significantly interfere with his employment and raise challenges in such employment; however, this does not equate to a demonstration that he was unemployable when he was in fact working full-time during the relevant period under review. The Board emphasizes that significant impairment of his occupational functioning is not interchangeable with unemployability for the purposes of TDIU analysis. Also, notably, the ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). For the aforementioned reasons, the preponderance of the evidence is against this claim of entitlement to a TDIU during this earlier period from February 22, 2008 to May 3, 2010. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. From May 4, 2010 onwards As a result of this decision, the Veteran now has a 100 percent schedular rating for his service-connected PTSD (i.e., a total schedular rating) from May 4, 2010, onwards. The Veterans Court (CAVC) has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where a 100 percent schedular rating was awarded for the same period). As already mentioned, the Veteran has no other service-connected disabilities, and Bradley v. Peake, 22 Vet. App. 280, which allows for consideration of a TDIU when there are separate service-connected disabilities that could allow for special monthly compensation (SMC) under 38 U.S.C. § 1114(s), resultantly does not apply. As such, this claim for a TDIU is moot and, therefore, dismissed to the extent predicated on unemployability since May 4, 2010. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.