Citation Nr: 20060404 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 14-38 208A DATE: September 14, 2020 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to January 7, 2019, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to February 4, 2018, is denied. FINDINGS OF FACT 1. For the period prior to January 7, 2019, the Veteran’s PTSD was productive of occupational and social impairment with deficiencies in most areas; total occupational and social impairment was not shown. 2. For the period prior to February 4, 2018, the Veteran's service-connected disabilities did not preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for PTSD prior to January 7, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU prior to February 4, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1969 to April 1971. In July 2018, the Board of Veterans’ Appeals (Board) remanded the issues of entitlement to a rating in excess of 70 percent for PTSD and entitlement to a total disability based on individual unemployability (TDIU) for further development. Specifically, the Board instructed the regional office (RO) to schedule a VA examination for the Veteran’s increased rating claim and to assist the Veteran in his claim for a TDIU. In December 2019, the RO issued a rating decision that increased the Veteran’s rating for his PTSD to 100 percent and granted special monthly compensation (SMC), both effective from January 7, 2019, which rendered the issue of a TDIU moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). Subsequently, the RO issued another rating decision in March 2020 that granted TDIU and SMC, effective February 4, 2018. The Board notes that although the RO increased the rating for the Veteran’s PTSD to 100 percent effective January 7, 2019, the period prior to January 7, 2019 is still on appeal because the Veteran perfected his appeal from an August 2012 rating decision that increased his PTSD rating to 70 perfect, effective July 29, 2010. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded). With regard to entitlement to a TDIU, as the claim is part-and-parcel of the Veteran’s claim for increased rating received in July 2010, the award of a TDIU from February 4, 2018, does not cover the entire period on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018); Payne v. Wilkie, 31 Vet. App. 373 (2019). Accordingly, the matter of entitlement to a TDIU prior to February 4, 2018, also remains on appeal. 1. Entitlement to a rating in excess of 70 percent for PTSD prior to January 7, 2019 is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant.  38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. § 4.7. The Veteran filed the instant claim for increased rating for PTSD in July 2010. The Veteran’s service-connected PTSD has been rated as 70 percent disabling under DC 9411, which provides that a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. Id. A 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating PTSD, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the 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. When evaluating the level of disability 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. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).  As discussed above, the appellate period for the Veteran’s current appeal is from July 29, 2010 to January 6, 2019. He contends that a higher rating is warranted. For the period prior to January 7, 2019, the Board has thoroughly reviewed the evidence of record in determining whether the Veteran’s PTSD was rated appropriately and finds that the Veteran’s PTSD more nearly approximated the criteria for a 70 percent rating. In an August 2010 mental health note, the Veteran was noted to be alert, fully oriented, and casually dressed, with good grooming and hygiene. His insight and judgment were intact, and he denied suicidal or homicidal ideation. In April 2011, the Veteran reported stress with his daughter and wife and admitted to hypervigilance and irritability. His appearance was well-groomed, and he denied any hallucinations or homicidal or suicidal ideation, plan, or intent. A VA contract examination was associated with the Veteran’s claims file in August 2011. The examiner opined the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas. The Veteran reported severe hypervigilance and repeated episodes of severe agitation with confrontation of strangers, but he stated that he had not been physically aggressive. The Veteran also reported some suicidal ideation, although he would never attempt suicide because it would embarrass his children. Dr. P.J.H. noted a lack of history of violent behavior or suicide attempts. The Veteran was married, with a good relationship with his wife, siblings, and children. He reported friction with his younger daughter, which had improved. When the Veteran worked, he had a good relationship with his supervisors and co-workers. Upon mental status examination, the Veteran had a flatten affect and was oriented within normal limits, with appropriate appearance and hygiene. There was no current or a history of delusions or hallucinations. However, there was obsessive-compulsive behavior, such as nail biting, which interfered with routine activities. The Veteran’s symptoms included suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances (including work or a work like setting), depressed mood, agitation, chronic sleep impairment, panic attacks, poor concentration due to ruminative thinking, and difficulty establishing and maintaining effective work, school, and social relationships. The Veteran continued to deny suicidal and homicidal thoughts and plans, as well as hallucinations and delusional thoughts, in a March 2012 mental health note. However, he reported concentration and focus issues and irritability. In November 2012, the Veteran reported some feelings of suicidal ideation at times but stated that he would never hurt himself. He provided that he wanted to live and denied thoughts of wanting to kill himself or anyone else. He also denied any psychotic symptoms such as hallucinations or delusions. An August 2013 mental health treatment plan note indicated that the Veteran posed no risk to himself or others, that he had supportive family and/or friends, and that he had active partnership in treatment. During a February 2014 initial psychiatric evaluation, the Veteran reported that he had been unable to control his temper, going as far as to threaten a landscaper with bodily harm, as well as a pedestrian who walked in front of his car. He admitted that he wanted to shoot the landscaper but knew that he could not and that he would not actually kill anyone. He further reported that he had destroyed property, including burning his car. He was living alone, having separated from his third wife, and was socially isolated. He bit and picked at his nails. The Veteran reported he retired because he could not stand veterans whining. The following month, the Veteran denied any suicidal or homicidal ideation but reported nightmares, panic attacks, hopelessness, and helplessness. A statement from the Veteran’s ex-spouse was associated with his claims file in May 2014. She provided that she was separating from the Veteran due to his PTSD symptoms and that the Veteran’s temper had caused problems with family, friends, and co-workers. She corroborated the Veteran’s reports of threats at a landscaper and a pedestrian. She also stated that he forgets the simplest things and cannot handle simple tasks. An August 2016 mental health consult reflects that the Veteran was casually dressed, with a normal affect. His thought process was logical and goal-directed, with no evidence of psychosis. He was oriented times three, and his insight and judgment were fair. The Veteran denied current or a history of suicidal or homicidal ideation. In an April 2017 treatment record, the Veteran reported a desire to continue living and was not thinking about suicide, and he denied homicidal thoughts. He had no impulsive behavior or delusions, and his insight was intact. A May 2017 treatment note reflects that although the Veteran reported anger issues, he had no plans to harm others. He also stated that a patient filed a complaint against him because he thought she was malingering. As a result, he jokingly said a statement that was taken the wrong way, and the hospital commander was notified. The Veteran reported being married and lived with his spouse, as well as satisfactory social support. During an August 2017 primary care visit, the Veteran stated that he was visiting the U.S., was staying with his daughter, and that he had generally been doing relatively well. He denied any significant depression, anxiety, or suicidal ideation. Another statement from a previous co-worker of the Veteran was associated with the Veteran’s file in November 2017. She stated that while the Veteran was at work, he would get angry and go off on tirades in the patient waiting room, even within earshot of patients. As a result, he would occasionally get formal complaints about his behavior. A March 2018 treatment record indicates the Veteran was healthy, well-groomed, whose thought process was intact. The Veteran denied any suicidal and homicidal ideation, as well as any suicide attempts or hospitalization. In April 2018, the Veteran reported that his relationship with his biological daughter was distant but improving and that he kept in touch with his eldest/adopted daughter, as well as a military friend. The Veteran submitted a correspondence in October 2018 that elaborated on the incident he reported in May 2017, in which someone filed a complaint against him. He provided that he verbally assaulted the patient he believed to be malingering and joked about shooting her after she filed a complaint. He also stated that he would verbally abuse patients when they showed up late for appointments. For the period prior to January 7, 2019, the preponderance of the evidence demonstrates that the Veteran’s psychiatric symptoms did not rise to the severity, frequency, and duration required for a 100 percent schedular rating, which contemplates “total” occupational and social impairment. Notably, as stated above, despite his serious symptomatology, the Veteran maintained mostly positive relationships with his family and some social contacts, and thus cannot be said to be totally socially impaired. Although the Veteran reported anger, irritability, and impaired memory intermittently through the appeal period, the Board finds that his overall disability picture does not rise to the level contemplated by a total impairment. Additionally, although not dispositive of the issue, the Board notes that the Veteran had not exhibited gross impairment of thought processes and has been shown to be able to communicate clearly; there is no evidence to indicate grossly inappropriate behavior or an inability to perform activities of daily living. While the Veteran is shown to have had some suicidal ideation and aggression and threatening behavior towards others, including some incidents of verbal abuse toward others at work, the evidence does not indicate a persistent harm to himself or others during that period. In fact, the records reflect that the Veteran reported he would never harm himself or others and had no history of any violent behaviors. With respect to occupational employment, Records also indicate that the Veteran was employed throughout the appeal period as an audiologist, though he fully retired, effective February 2018, due to his PTSD symptoms. He has been assigned a TDIU effective as of the date he last work. In sum, the Veteran’s symptoms during this period are not shown to be such severity to result in the Veteran’s total occupational and social impairment. Accordingly, the Board finds that a rating in excess of 70 percent for the Veteran’s PTSD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to a TDIU prior to February 4, 2018, is denied. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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 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(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). When evaluating TDIU entitlement, the pertinent inquiry is whether a claimant's service-connected disability alone is of sufficient severity to produce unemployability. The impact of non-service-connected disabilities is not to be considered. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). The ultimate question is whether a claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). From the July 29, 2010, that is, the date VA received the increased rating claim on appeal, the Veteran's service-connected PTSD was rated 70 percent disabling, and the Veteran was additionally service-connected for hearing loss (rated as 30 percent disability from September 2006, 40 percent disabling from January 2015, and 70 percent disabling from October 2016), and tinnitus, rated as 10 percent disabling. His combined rating was 80 percent from July 2010, and 90 percent from October 2016, thereby satisfying the schedular criteria for a TDIU. See 38 C.F.R. § 4.16. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Furthermore, marginal employment is not considered substantially gainful employment. Marginal employment may be held to exist, on a fact found basis, to include, but not limited to, employment in a "protected environment," such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (work in a "protected environment" will also be considered marginal and is not determined on the basis of salary). The Board recognizes that "protected environment" has not been expressly defined by regulation. Merriam-Webster's Collegiate Dictionary offers several definitions of the word "protect," but one that appears to be applicable in this inquiry is "to save from contingent financial loss." See Merriam-Webster's Collegiate Dictionary (online) (2017). "Contingent" can mean "likely but not certain to happen: possible." Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one's employment is not based on merit alone, but rather is established to save the individual from likely financial loss. In other words, a protected environment is an employment environment that would not exist, but for the willingness of the employer to hire and pay the employee for altruistic reasons. The record reflects that the Veteran was employed until February 4, 2018, which is the effective date of the award of a TDIU. On his VA Form 21-8940, the Veteran reported that he worked as an audiologist for a VA facility in California on a full- time basis from January 2005 to April 2014, with no time lost from illness and a highest gross earnings of over $8,000 per month, and then as an audiologist in South Korea from June 2014 to February 2018 with a highest gross earnings of $6,800 per month. In a March 2020 statement, the Veteran reported that he retired in 2012, went to work part-time on a fee basis, and then returned to work in full-time 2014, which he only managed until 2018 and stopped working entirely due to his PTSD symptoms. On June 2010 VA mental health treatment, the Veteran related that he was considering retiring at the end of the year and continuing work part-time on a fee basis. VA treatment records include a March 2012 report noting that the Veteran worked part-time. In this case, the evidence reflects that the Veteran was employed on a full-time basis for the majority of the appeal period from July 2010 to February 2018, with a period of part-time employment some time in 2012 until resuming full-time employment in 2014. His application for TDIU and the other evidence does not establish that his income diminished his earnings to a degree that would constitute marginal employment, even for those periods in which he has indicated in treatment records that he was employed part-time. Moreover, the record does not reflect—nor does the Veteran contend—that his employment was in a protected work environment. The Board his considered the Veteran’s statements, as well as those of his coworkers and spouse, detailing the difficulties he encountered during his employment, including disputes with patients, unprofessional conduct, and the level of symptom interference with work functioning, leading to him partially retire in 2012 and fully retire early in 2018. However, the high rating assigned during this period is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment. See Van Hoose, 4 Vet. App. at 361. In this case, the record reflects that the Veteran was able to maintain substantially gainful employment during the relevant period, and does not reflect that the Veteran was incapable of performing the physical and mental acts required by employment, though he certainly had difficulties at work and performing work duties. In sum, the Board finds that the Veteran was not engaged in marginal employment prior to February 4, 2018, and that his service-connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment. Thus, a TDIU is not warranted prior to February 4, 2018. In reaching this conclusion, the Board has again considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for TDIU, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, 274 F.3d at 1365. Accordingly, the claim of entitlement to a TDIU prior to February 4, 2018 is denied. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.