Citation Nr: 21000931 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-04 651 DATE: January 6, 2021 ORDER A disability rating higher than 50 percent for posttraumatic stress disorder (PTSD) is denied. Prior to August 23, 2016, a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD was not manifested by occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 2. Prior to August 23, 2016, the Veteran did not qualify for a TDIU. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. Prior to August 23, 2016, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1983 to November 1989 and June 2005 to July 2006. The Veteran had a hearing before the undersigned Veterans Law Judge in October 2019. In January 2020, the Board remanded this matter for a current VA examination, which was obtained in January 2020. 1. Entitlement to a disability rating higher than 50 percent for PTSD. In March 2015, the Veteran submitted a claim for a disability rating higher than his 50 percent for his service-connected PTSD. This appeal followed a March 2014 rating decision granting service connection, effective November 21, 2013. The Board finds that following a review of the relevant evidence of record, which includes VA treatment records, lay statements, a Social Security Administration (SSA) medical evaluation, and the VA examinations, a disability rating higher than 50 percent is not warranted. The next higher disability rating of 70 percent disability evaluation is contemplated 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 work like setting); inability to establish and maintain effective relationships. The most probative evidence of record does not support finding that the Veteran has occupational and social impairment with deficiencies in most areas consistent with a 70 percent disability rating. January 2014 and July 2015 VA examiners found only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, consistent with a 30 percent disability rating. The July 2015 examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The November 2016 VA examiner found occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent disability rating. Symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and suicidal ideation was noted. The examiner, however, found that he was alert and oriented. Mood was euthymic and affect was full range. Speech was fluent and normal in rate and tone. The Veteran registered 3/3 words and recalled 2/3 words at five minutes. The January 2020 VA examiner similarly found occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent disability rating, and symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood. The examiner noted that although the Veteran presented as dysphoric, with a constricted affect, he was also alert and oriented. He did not evince any disturbances in speech, thought, memory, concentration, or behavior. His insight and judgment were estimated as fair. The examiner noted that the symptoms would interfere with his social and occupational functioning, to the extent that his symptoms elicit conflict and strain in his home, and he experienced difficulties with productivity and interpersonal interactions with others while he was working. The Veteran reported symptoms and functional impairment daily. In a March 2016 SSA psychiatric evaluation, H.H., PsyD, found only mild restriction of activities of daily living and moderate difficulties in maintaining social functioning and concentration, persistence, or pace. The examiner noted problems with concentration and anger but noted that he cared for animals and managed finances. The examiner found that he would be able to complete simple unskilled tasks with limited interactions with others. The examiner found psychiatric symptoms would likely result in no more than moderate limitations in social functioning. The record does not indicate that the Veteran suffered from near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. Depression and/or anxiety was reported by the Veteran as occurring only at times, such as indicated by the February 2015, March 2015, July 2015, November 2015, May 2016, July 2016, October 2016, February 2017, and May 2017 VA medical providers. More recent VA medical records indicate depression screens ranging from moderate (April 2018), to mild (August 2017), to negative (August 2018 and August 2019). More recent VA medical records similarly range from some depression and anxiety (August 2019), to his mood being good with okay anxiety (January 2018 and April 2018), to having no depression and no anxiety (October 2018, November 2018, and April 2019). The Veteran has similarly repeatedly denied having obsessions, much less obsessional rituals, such as in a March 2017, June 2016, September 2015, March 2015, and December 2017 VA medical records. Such symptoms were similarly not noted by any VA examiners. Additionally, medical evidence of record, such as the SSA evaluation, found only mild limitation in activities of daily living and as noted below providers consistently found normal thought process. His speech was not intermittently illogical, obscure, or irrelevant. Rather, VA examiners and VA medical providers consistently found speech to be generally normal in volume and tone. For example, the March and September 2015 VA medical providers found his speech clear and concise. The July and November 2015, February 2016, February 2017, December 2017, January 2018, April 2018, April 2019, August 2019, and October 2019 VA medical providers found it was normal or within normal limits. The evidence also shows repeated findings of the Veteran being oriented and of personal appearance and hygiene that was not neglected. VA examiners generally indicated that the Veteran was oriented. The May 2017 VA medical provider found that the Veteran was alert and oriented with a clear and organized thought content and good judgment. An October 2016 VA medical provider found intact cognition and orientation, with good insight and judgment. More recent VA medical providers found that the Veteran was oriented, and his thought process was logical and goal directed, including in December 2019, April 2019, October 2018, and January 2018. Both VA examiners and VA medical providers have also consistently found that the Veteran was appropriately dressed and groomed. A February 2015 VA medical record indicated that the Veteran did not have poor impulse control or periods of violence. Indeed, a February 2015 VA medical provider found that his impulse control was good and no violence. Though there were indications of irritability and some impulse impairment at times, there were more indications of him being able to control it, as noted in an August 2015 VA medical record and December 2016 VA medical record. VA examinations also did not indicate finding poor impulse control or violence. Furthermore, the probative evidence of record does not show an inability to establish and maintain effective relationships. During his October 2019 Board hearing, he reported that he was more or less a hermit at the house. However, VA medical records indicate that the Veteran had a supportive girlfriend to whom he became engaged, indicating the establishment and maintenance of an effective relationship. Indeed, a December 2016 VA medical record indicated that he felt fortunate to have someone that understood and cared for him. The 2018 VA medical records indicated that the Veteran had married his girlfriend. In an April 2019 VA medical record, he reported that he helped to home school his stepdaughter. In a March 2016 VA medical record, he reported having a good relationship with his younger brother, two sons, and mother. His January 2014 VA examiner also noted that the Veteran reported having 3 close friends he saw weekly, a couple casual friends he saw monthly, and that he attended monthly meetings of the Combat Vet Motorcycle Association. During his January 2020 VA examination he reported that he would attend auctions weekly. As to suicidal ideation or homicidal ideation. The Board notes that the November 2016 VA examination did note a report of suicidal ideation. However, most of the other evidence of record does not support that one report. Rather, they consistently indicate denials of suicidal ideation and homicidal ideation, including in VA medical records from both prior to and after that VA examination, including in February 2015; June, July, September, and October 2016; and February, March and May 2017, October 2018, and December 2019 VA medical records and the other VA examinations. Although suicidal ideation is included in the criteria for a 70 percent rating under DC 9411 and could be the basis of finding occupational and social impairment with deficiencies in most areas, its presence does not automatically warrant a 70 percent rating. The focus must be on whether those suicidal ideations and the other psychiatric symptoms are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. The Board finds the notation of passive suicidal ideation in one treatment record is not of the severity and frequency, when combined with his other symptoms and multiple and frequent denials of it, to cause occupational and social impairment in most areas. To the extent that the Veteran has difficulty in adapting to stressful circumstances (including work or work like setting), there is indication of such difficulties. In his January 2015 VA medical record, he reported that he felt his life stressors had increased to the extent that the current stressors are more than he can manage. In a November 2015 VA medical record, he reported his main stressor at that time had been his relationship with his mother who wanted more financial help from him than he could provide, causing increased depression due to the stress of dealing with her situation, but was coping by avoiding her. His other main source of stress was “in dealing with stupid civilians…no respect.” The report of stress due to his mother was repeated in a March 2016 VA medical record. In his October 2019 Board hearing, the Veteran reported that he did not like dealing with stressful situations. The January 2020 VA examiner noted that the Veteran’s symptoms interfere with his social and occupational functioning, to the extent that his symptoms elicit conflict and strain in his home, and he experienced difficulties with productivity and interpersonal interactions with others while he was working. Despite noting this, the January 2020 VA examiner still found that the Veteran’s occupational and social impairment was only consistent with a 50 percent disability rating for reduced reliability and productivity. Moreover, the record also shows that was able to handle stresses. He told the January 2014 VA examiner that he could walk away when irritable with co-workers. As noted above, the Veteran also indicated that he helped to home-school his stepdaughter. His VA medical providers consistently also found that he had good to fair judgment and insight. As previously noted, the focus must be on whether the Veteran’s symptoms are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. Overall, the Board finds that the probative evidence does not support finding occupational and social impairment with deficiencies in most areas, indicative of a 70 percent disability rating. As noted above, the VA examiners findings were consistent with a 50 percent disability rating or lower, and the SSA finding was of moderate functional limitation, consistent with the 50 percent disability rating. Furthermore, the majority of the other medical evidence of record generally did not support symptoms consistent with a 70 percent disability rating. Although the Veteran indicated difficulty adapting to stressful circumstances, overall, his symptoms did not rise to a level of occupational and social impairment with deficiencies in most areas. The Board has also considered whether a 100 percent disability rating is warranted. A 100 percent evaluation is warranted when there is evidence 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; 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. VA medical records and VA examinations were consistent in finding the Veteran did not have an impaired thought process or impaired ability to communicate or inappropriate behavior. He consistently denied delusions or hallucinations, as well as, homicidal ideation. As noted above he was able to perform activities of daily living, including maintain personal hygiene, and was oriented with good judgment and insight. Additionally, the VA examiners did not find total occupational and social impairment due to his PTSD. The January 2014 VA examiner noted that the Veteran denied missing time from work in the past year due to mental health issues; he reported being irritable on the job and suggested that he is sometimes short with co-workers but can usually walk away to manage it; he reported some problems with concentration at work but because his job is rather routine it doesn’t impact his performance much. During his Board hearing, he reported that his PTSD interfered with work, such as snapping at people once in a while, but he did not indicate total occupational impairment. The Board finds that none of the enumerated symptoms/manifestations listed in the rating criteria consistent with the assignment of a 100 percent schedular rating for PTSD have been shown at any point during the appeal period and the record does not otherwise show symptoms indicative of total occupational and social impairment due to PTSD symptoms. In this regard, there is no documentation of such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; of memory loss of names of close relatives, own occupation, or own name. VA medical records, VA examinations, and the SSA evaluation did not make findings of such symptoms or note other symptoms that would be so indicative. Accordingly, for the period in question, the most probative evidence has not demonstrated symptoms/manifestations of PTSD indicative of total occupational and social impairment for a 100 percent disability rating. Furthermore, given the level of functioning demonstrated by the Veteran above, and supported by the most probative medical evidence, a 70 percent disability rating or higher is not warranted. The Veteran did not have occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood due to his psychiatric symptoms, consistent with a 70 percent disability rating. In other words, the totality of the probative medical and lay evidence shows the Veteran’s symptoms were of a similar type, duration, and severity as those associated with a 50 percent and no higher. Under the circumstances of this case, the Board finds that, for the entire period under consideration, the Veteran’s PTSD has more nearly approximated the criteria for the 50 percent already granted. 38 C.F.R.§ 4.7. Other than the TDIU claim that will be address below, the Veteran has not raised any other issues with respect to the rating claim for PTSD nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board finds that a disability rating higher than 50 percent for PTSD is denied. 2. Entitlement to a TDIU, prior to August 23, 2016. Per his June 2017 TDIU application, the Veteran was last employed in January 2015 and was not able to work due to back degenerative disc disease of the lumbar spine, knees, depression, and PTSD. During his October 2019 Board hearing, he affirmatively responded to prompts from his representative as to his PTSD having caused issues when he tried to work and that it would cause him to snap at people once in a while. Prior to August 23, 2016, the Veteran did not indicate that he was unemployable due to his then service-connected disabilities. Rather, SSA records indicate that the Veteran was involved in a post-service motorcycle accident in October 2013. During his January 2014 VA examination, the Veteran denied missing time from work in the past year due to mental health issues. Although he was irritable on the job and suggested that he was sometimes short with co-workers, he could usually walk away to manage it. Also, although he reported some problems with concentration at work, since his job was rather routine it did not impact his performance much. His February 2015 VA medical record documents that he had been out of work on disability due to a bad motorcycle accident and had been severely injured. Prior to that time, he had been working at a Wal-Mart distribution center, operating a forklift, but was unable to do that now and had to quit due to his injured shoulder. He had been on medical leave from the accident. In an April 2015 VA medical record, he again reported that he had been working for Wal-Mart for 16 years as a forklift operator, but had been fired that year after a serious motorcycle accident resulted in physical injuries that left him unable to perform job duties. He told the January 2020 VA examiner that he stopped working due to a motorcycle accident and his resultant injuries interfering with his ability to maintain employment. In a January 2017 letter, Dr. G.R.W. indicated that the Veteran could not perform gainful employment due to his service-connected disabilities, which included physical disabilities that the Veteran was not service-connected for prior to August 23, 2016. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Prior to August 23, 2016, the Veteran was service-connected for PTSD (50 percent), degenerative disc disease of the lumbosacral spine (10 percent), right knee strain with meniscal tear (10 percent), right knee strain with laxity (noncompensable), and noncompensable left ear hearing loss, chronic flexion deformity of the right hand interphalangeal joint, and right hand little finger scar. He had a combined 60 percent disability rating. He thus did not meet the minimum schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). Further, the most probative evidence does not show that his service-connected disabilities alone rendered him unable to secure and maintain substantially gainful employment prior to August 23, 2016. Therefore, referral for extraschedular consideration is not warranted. The Veteran has not raised any other issues with respect to the TDIU claim prior to August 23, 2016 nor have any other assertions been reasonably raised by the record. See Doucette, supra. (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page)   Prior to August 23, 2016, a TDIU for PTSD is not warranted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.