Citation Nr: 21001987 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-40 366 DATE: January 12, 2021 ORDER Entitlement to a rating of 70 percent, but not higher, for the entire period on appeal for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based upon individual employability due to service-connected disabilities (TDIU) prior to March 9, 2017, is granted. Entitlement to a TDIU beginning March 9, 2017, is moot and is dismissed. FINDINGS OF FACT 1. For the entire period on appeal, the occupational and social impairment from the Veteran’s PTSD has been manifested by deficiencies in most areas. 2. Prior to March 9, 2017, the Veteran had a combined rating of at least 70 percent with one disability rated 40 percent or better, and his service-connected disabilities rendered him unable to obtain and maintain gainful employment. 3. Beginning March 9, 2017, the Veteran has been in receipt of a schedular 100 percent rating, and does not have a single service-connected disability alone that renders him unemployable. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but not higher, for PTSD have been met for the entire period on appeal. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for entitlement to a TDIU have been met prior to March 9, 2017. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). 3. The claim of entitlement to a TDIU beginning March 9, 2017, is moot. Vettese v. Brown, 7 Vet. App. 31 (1994); Holland v. Brown, 6 Vet. App. 443 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1966 to June 1969, including service in the Republic of Vietnam. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2019. A transcript of the hearing has been associated with the claims file. This case was previously before the Board in April 2020, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for further appellate action. A review of the record shows that in a September 2020 rating decision, the Veteran was assigned a 70 percent rating for his PTSD, effective May 27, 2020. That does not constitute a full grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. Increased Rating – PTSD The Veteran has asserted that he should have higher ratings for his PTSD as his symptoms are worse than those contemplated by the currently assigned ratings. At a January 2014 VA examination, the Veteran reported increased isolation since his last examination, and a more strained relationship with his wife. He reported that his daughter and grandchildren lived with him and his wife, but stated that while he enjoyed watching his grandchildren grow up, he preferred to be left alone. The Veteran also reported thinking more about his experiences in Vietnam, and feeling more depressed as result of survivor’s guilt. The Veteran was noted to have a markedly diminished interest in significant activities, and he experienced fewer positive emotions. The examiner noted that the Veteran experienced recurrent and distressing recollections, avoidance, persistent and distorted cognition of traumatic experiences, persistent negative emotional state, feelings of detachment and estrangement from others, persistent inability to experience positive emotions, irritability, angry outbursts, hypervigilance, problems with concentration, and chronic sleep impairment. Upon mental status examination, the Veteran was dressed casually and neatly, and was cooperative throughout the evaluation. His mood was depressed, and his affect was congruent with his mood. The Veteran’s speech was normal, and his thought process appeared logical and coherent. His judgment and impulse control appeared intact, but his concentration was impaired. The Veteran denied suicidal ideation (SI), psychiatric or manic symptoms, and did not exhibit delusional material. The examiner noted symptoms of depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation or mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran’s symptoms resulted in occupation and social impairment with reduced reliability and productivity. In a January 2019 VA Mental Health Note, the treating physician noted that the Veteran’s PTSD symptoms were chronic and severe. At a May 2020 VA examination, the Veteran reported that he lived with his wife and daughter. He reported that he had not worked since retiring in 2008 after 35 years with the New York City Transit Authority. The examiner noted that the Veteran experienced recurrent and distressing recollections, avoidance, persistent and distorted cognitions about his traumatic experiences, persistent negative emotional state, markedly diminished interest and participation in significant activities, feelings of detachment and estrangement from others, persistent inability to experience positive emotions, hypervigilance, and sleep disturbance. Upon mental status examination, the Veteran was cooperative. His manner of relating and social skills were intact. The Veteran appeared in accord with his stated age. He was appropriately dressed and adequately groomed. The Veteran’s posture was normal, and his motor behavior was appropriate. His eye contact was normal, and his speech was fluent and grammatical. The Veteran’s thought processes were coherent and logical with no evidence of hallucinations, paranoia, or delusions. His affect was somewhat dysphoric and sad. His mood was noted to be fair. He was alert and oriented in all spheres including knowing the current President of the United States of America. The Veteran’s recent and remote memory functioning were noted to be intact. His attention and concentration were fair. The Veteran’s reasoning and judgment were fair to good. The examiner noted symptoms of depressed mood, chronic sleep impairment, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner noted that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas. The Board finds that the Veteran is entitled to a rating of 70 percent for PTSD for the entire period on appeal. In this regard, the occupational and social impairment manifested by the Veteran’s PTSD has more closely approximated deficiencies in most areas for the entire period on appeal. The Board notes that the Veteran was assigned a 70 percent rating based on the findings at his May 2020 VA examination. The Board does not find that the symptoms reported at that examination are manifestly different, or more severe, than those reported at his prior January 2014 VA examination. As such, the Board finds that the Veteran is entitled to a rating of 70 percent for his PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). The Board acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports, and the treatment notes of record do not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating for PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board’s finding that there is social and occupational impairment with deficiencies in most areas is sufficient to warrant a 70 percent rating for the entire period on appeal even though all the specific symptoms listed for a 70 percent rating are not manifested. The Board finds that the Veteran is not entitled to a rating in excess of 70 percent for his PTSD. In this regard, the occupational and social impairment manifested by the Veteran’s PTSD has not been total. Specifically, the Veteran does not have impairment in speech, judgment, thinking, and thought processes. He has not exhibited hallucinations or delusions, and he does not display obsessional rituals that interfere with his ability to perform activities of daily living. The Veteran is able to maintain his own personal hygiene, and has not been found unable to manage his own financial affairs. The Veteran has not reported suicidal or homicidal ideations, and he has not been shown to be a persistent danger to himself or others. Further, while the Veteran has been noted to have difficulty in maintaining relationships, he has been living with his wife and daughter throughout the appeal period. Additionally, while the Veteran’s PTSD has been shown to cause difficulty in adapting to stressful circumstances, including work or a work like setting, it does not cause total occupational impairment. In this regard, there is no indication from the record that the Veteran lost time from work prior to his retirement in 2008 as a result of his PTSD. Further, the May 2020 VA examiner noted that the Veteran’s PTSD resulted only in deficiencies in most areas, and not total occupational impairment. Therefore, the Board finds that the Veteran’s symptoms do not more closely approximate total social and occupational impairment. As such, a higher rating for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a TDIU At the outset, the Board notes that beginning March 9, 2017, the Veteran has been in receipt of a schedular 100 percent rating. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities 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). Generally, if the VA has found a veteran to be totally disabled as a result of a particular service-connected disability or a 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. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of 100 percent rating does not always render the issue of TDIU moot. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court determined that a separate TDIU rating predicated on one disability may be awarded if that disability is not ratable at the schedular 100 percent level. However, a separate TDIU rating cannot be awarded based on one service-connected disability if the Veteran is already receiving a 100 percent schedular rating for that disorder. Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, the Veteran has been awarded a 100 percent rating for his prostate cancer beginning March 9, 2017. There is no indication from the record that any of the Veteran’s other service-connected disabilities alone render him unemployable, especially without consideration of his service-connected prostate cancer. Therefore, the findings in Bradley are not applicable in this case, and the issue of entitlement to a TDIU is moot beginning March 9, 2017, as the Veteran is in receipt of a schedular 100 percent rating beginning that date. However, the Board will consider the Veteran’s entitlement to a TDIU prior to March 9, 2017. The Board notes that prior to March 9, 2017, the Veteran has been in receipt of a combined rating of at least 70 percent, with at least one disability rated 40 percent or better for the entire period. As such, the Board finds that the Veteran has met the schedular criteria for assignment of a TDIU for the entire period on appeal prior to March 9, 2017. 38 C.F.R. § 4.16 (2019). The Veteran asserts that his service-connected disabilities are of such severity so as to prevent him from securing or following substantially gainful employment. A review of the record shows that the Veteran retired from his job with the New York City Transit Authority after 35 years in March 2008. He reported that he stopped working as a result of his PTSD, diabetes mellitus, and knee disabilities. He reported that his last position with the New York City Transit Authority was as a schedule manager. The Veteran has a high school education, and he has one year of college education. The Veteran has not had any education or training since he stopped working. In a November 2009 medical opinion, it was determined that the Veteran had significant functional impairments that limited his ability to perform physical employment. The examiner noted that the Veteran was precluded from prolonged walking, standing, climbing, squatting, repeated stair climbing, or repeated listing of objects greater than 25 pounds. The examiner noted that the Veteran did not have functional impairment that limited his ability to perform sedentary work. A March 2014 prescription note from the Veteran’s treating physician noted that the Veteran required restriction of activities as a part of his diabetes treatment plan. At his February 2019 hearing before the Board, the Veteran reported that his doctor told him not to run, walk excessively, or lift heavy objects because of how such activities could impact his blood sugar levels. At his January 2014 VA psychiatric examination, the Veteran was noted to have increased isolation and avoidance. He experienced difficulty establishing and maintaining effective relationships, and the examiner found that his PTSD resulted in reduced reliability and productivity. At his February 2019 Board hearing, the Veteran reported that when he was still working, his PTSD symptoms had resulted in verbal altercations with co-workers and supervisors, and that he retired before he was ready as a result. At his May 2020 VA examination, the Veteran was noted to have PTSD symptoms that resulted in deficiencies in most areas, including work. Based on the above, the Board finds that his service-connected disabilities prevented the Veteran from obtaining and maintaining substantially gainful employment for the entire period on appeal prior to March 9, 2017. In this regard, the Veteran had significant physical limitations caused by his diabetes mellitus and knee disabilities. Further, the Veteran had difficulty engaging in appropriate workplace behavior, and struggled with concentrations issues as a result of his PTSD. While some VA examiners have indicated that the Veteran would not be precluded from engaging in sedentary employment, there is no indication from the record that the Veteran has the knowledge or skill set necessary to perform such work. As such, the Board finds that the Veteran has been unable to obtain and maintain gainful employment in accordance with his education and industrial experience. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.