Citation Nr: 21001464 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 18-22 750 DATE: January 8, 2021 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to January 14, 2020 is denied. A total disability rating for compensation based upon individual unemployability (TDIU) due to PTSD prior to July 1, 2017 is denied. FINDINGS OF FACT 1. Prior to January 14, 2020, the Veteran's PTSD did not result in total occupational and social impairment. 2. Prior to July 1, 2017, the Veteran's service connected PTSD did not prevent him from securing and following all forms of substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD prior to January 14, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU due to PTSD prior to July 1, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to May 1976. The Board thanks the Veteran for his service to our country. These matters come before the Board of Veterans’ Appeals (Board) from an April 2017 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) which granted service connection for PTSD and assigned an evaluation of 70 percent. An interim July 2020 rating decision granted a 100 percent schedular rating from January 14, 2020, according the period from January 14, 2020 forward is no longer on appeal as the Veteran is in receipt of the full grant of the benefit sought during that period. The July 2020 rating decision also granted entitlement to TDIU as a result of his service-connected PTSD effective July 1, 2017. In conjunction with the decision in Harper v. Wilkie, 30 Vet. App. 356 (2018), when the issue of entitlement to a TDIU becomes part and parcel of an underlying appeal for a higher disability rating, the grant of a TDIU does not bifurcate the appeal and a notice of disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU. Furthermore, if the grant of a TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the outstanding period remains in appellate status. Id. In this case the increased rating claim for PTSD began in August 2013. Accordingly, the issue of entitlement to TDIU prior to July 1, 2017 remains on appeal. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). A rating in excess of 70 percent for PTSD prior to January 14, 2020 The Veteran’s PTSD is rated under 38 C.F.R. § 4.130’s General Rating Formula for Mental Disorders, under which a 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112(Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and VA's Secretary determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's appeal was originally certified to the Board after August 4, 2014, DSM-5 applies to this case. Based on the evidence, the Board concludes that a rating in excess of 70 percent is not warranted for the Veteran's service connected PTSD prior to January 14, 2020. The preponderance of the evidence is against a finding that prior to that date, the Veteran's service connected PTSD caused total occupational and social impairment. The Veteran filed his claim in August 2013. At the time of the VA psychiatric examination in June 2014, he reported having good relationships with his mother and eldest sister and distant relationships with his 2 remaining sisters, and he was employed full time. He enjoyed golf monthly and socialized daily and was cooperative throughout the examination. On VA psychiatric examination in April 2017, the Veteran reported having a hard time getting along with people, and difficulty in establishing and maintaining effective work and social relationships, rather than total occupational and social impairment. Additionally, he did not endorse any of the symptoms exemplary of a 100 percent rating, and he was alert and cooperative during his interview. Also, the Veteran was working at a defense department depot and had been there for a number of years. And the examiner indicated that occupational and social impairment with reduced reliability and productivity, rather than total occupational and social impairment, best summarized his level of occupational and social impairment with regard to all mental diagnoses. The Veteran reported in his November 2019 TDIU claim form that he continued to work until June 2017 earning $50,000 his last full year of employment in 2016. No evidence of record, including in the 2020 VA examination reports, indicates that on any date certain prior to January 14, 2020, the Veteran's service connected PTSD caused total occupational and social impairment. The available evidence does not reflect that an increase was factually ascertainable prior to the date of the January 2020 VA examination. For example, a March 2019 VA primary care nursing note found the Veteran’s mental status was alert and oriented; the Veteran denied that there were things in his life that worried him or caused him stress; and depression and suicidal assessments were both marked as “No.” Also in March 2019 a VA treatment record reported “PTSD symptoms much better since retiring” with no depression, anxiety, suicidal or homicidal ideation. A TDIU prior to July 1, 2017 A TDIU has been awarded from July 1, 2017 based solely on PTSD. The matter of entitlement to a TDIU prior to that date remains on appeal. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. It is the established policy that Veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's service-connected disabilities, as evaluated under the VA Rating Schedule, are: PTSD, rated 70 percent prior to July 1, 2017; and scars on the bridge of his nose and left upper eyelid, rated at 30 percent; for a combined rating of 80 percent. When there is more than one service connected disability, one must be ratable as at least 40 percent disabling and the combined rating must be 70 percent or higher in order to consider TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The requirements for a schedular TDIU have been met throughout the appeal period based on PTSD alone. Based on the evidence, the Board concludes that a TDIU is not warranted prior to July 1, 2017 based on his service-connected PTSD alone or based on a combination of service-connected disabilities. The preponderance of the evidence indicates that prior to that date, the Veteran's service connected disabilities or PTSD alone, did not preclude him from securing or following substantially gainful employment. Evidence from the Veteran and his employer from January 2007 through June 30, 2017 shows that he worked full time through that date in substantially gainful employment. See, for instance, the June 2014 and April 2017 VA examination reports and the January 2020 VA Form 21-4192 from his former employer. The preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.