Citation Nr: 21002186 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-48 596 DATE: January 13, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress (PTSD) with mood disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran’s PTSD symptoms, including irritable behavior and angry outbursts, hypervigilance, problems with concentration, chronic sleep impairment, depressed mood, anxiety, suspiciousness, mild memory loss, flattened affect, panic attacks more than once a week; disturbances of motivation and mood; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran is unable to secure or follow substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Codes 9411. 2. The criteria for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from November 1966 to February 1971. In October 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in January 2020 and remanded the issue for additional development in order to request a VA examination. After the development was completed, the case returned to the Board for further appellate review. 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to a rating in excess of 70 percent for PTSD. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019). The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s PTSD symptoms did not cause the level of impairment required for a disability rating of 100 percent. A 70 percent rating is assigned when symptoms such 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Id. The RO initially granted service connection for PTSD in a July 2009 rating decision. At that time a 50 percent rating was assigned effective the date of the original claim in July 2008. Subsequently, the Veteran filed for an increased rating in September 2013. Thus, the Board will consider evidence from September 2012. During the period on appeal, the Veteran was afforded VA examinations in April 2014 and August 2020. In the April 2014 VA examination, the examiner starts off by confirming the PTSD diagnosis and stating the severity and frequency of the symptoms have not changed significantly since 2010. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with reduced reliability and productivity. Recently, since the last exam, the Veteran reported he was in a relationship of six years, which he describes as, “We do pretty good, she lives in her house, I live in mine.” He sees her about once a week and talks to her a couple times per week. The Veteran lives alone in a mobile home, has one child, a son, with whom he has no contact at his son’s choosing. Both of the Veteran’s parents are deceased, and he was an only child. He has one close friend from AA and sees his friend once or twice a week. The Veteran is not currently working. He told the 2014 examiner he last worked in June 2013. Since 1985, he has done small home repairs. He did most of the work on his own. He stopped work, because “I just couldn’t physically take it.” He had shoulder problems. “Things are not functioning like they used to. Not as secure going up a ladder.” It’s harder to carry dry wall, lumber, etc., as he has gotten older. “I’m not what I was physically when I was 40 or 50.” He thinks this might have been due in part to his psychotropic medications, but he was on the medications since 2008, when he first started coming to the VA for psychiatric problems. He has recurrent distressing memories of events from service. He avoids distressing memories and situations that remind him of traumatic events. The events have caused diminished interest and participation in significant activities, feelings of detachment, and a persistent inability to experience positive emotions. The Veteran also has exaggerated startle response and difficulty falling and staying asleep. The PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other areas of functioning. In the August 2020 VA PTSD examination, the examiner continued the current diagnosis of PTSD, and characterized the Veteran’s occupational and social impairment as having reduced reliability and productivity in those areas. Again, as in 2014, the examiner said he reviewed the claims folder. Since his last exam the Veteran remains in the same committed relationship, which he describes in favorable terms so long as he takes his medications as prescribed. He moved in with his girlfriend in 2016 but has a room to himself if he “gets out of hand.” They live in a single-family home, and admits he gets irritable at times. His partner also described their relationship in positive terms. He is still not in contact with his adopted son, at the son’s request, and the Veteran noted a couple of friends in Alcoholics Anonymous (AA). Not much has changed since the last examination. The Veteran still is not working, spends his time walking at the mall (until COVID), going to daily AA meetings, going to group therapy at the Veteran Center, cooking, cleaning, and spending time with his significant other and his friend. The Veteran still has trouble falling and staying asleep. He still has nightmares but less frequently. He still checks locks and door, and his partner describes him as paranoid. He still has intrusive thoughts from Vietnam every day. He is triggered by helicopter sounds, high humidity and heat. He does not like fireworks, has survivor’s guilt, and describes his mood as even. His partner agrees, when he is on his medications; however, when he is not on his medications, he is easily angered. He has panic attacks, avoids social gatherings, except his therapy groups, and is on several daily PTSD medications. Since his 2014 examination, the Veteran dropped two PTSD symptoms from his list; difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. Instead he has added others; anxiety, panic attacks more than once a week, mild memory loss, such as forgetting names, directions or recent events, and flattened affect. Notes from VA group sessions are unremarkable as typified by this May 2020 note from his Vietnam PTSD Group session at the Baltimore VA center: Veteran reported he is doing well. He reported getting up this morning thinking it was Saturday as "all of the days are running together." Like many others, Veteran is bored and frustrated with being confined to home. He did share that he has been working on his yard, deck, and other projects around the house to keep himself mentally and physically busy. He denied any increased depression or anxiety associated with COVID 19. He denied any current health problems. His mood remained upbeat and stable. He did not report any current suicidal ideations or plans. He was an active participant in the various group discussions, he was supportive to other members, and provided positive feedback. The Veteran through his representative in his December 2020 Appellate Brief asserts the following PTSD symptoms, which are listed in the 100 percent disability rating under psychiatric disorders: he constantly forgets to perform activities of daily living, such as taking his medication, hygiene, eating, or other required activities in and around his home. Perhaps most significantly, the Veteran shared that as a result of his Vietnam experience, he views unfamiliar individuals as Vietnamese soldiers, and constantly avoids interactions, with people to avoid causing harm. At the October 2019 Board hearing the Veteran testified to the following symptoms: anxiety, irritability, obsessive rituals, reclusiveness, hyper-vigilance, recent auditory hallucinations upon waking from sleep, and the negative effect his current psychotic medications have on his ability to work, while at the same time making social interactions more regular. The only rating higher than 70% for psychiatric disabilities is a 100 percent rating, which is assigned when symptoms cause total occupational and social impairment. 38 C.F.R. § 4.130. The Board finds that the Veteran’s overall social and occupational impairment has not changed significantly and does not more nearly approximates the level associated with a 100 percent rating. Socially, the Veteran reported being in long-term committed relationship throughout the appeal period. At both the 2014 and 2020 VA PTSD examinations, the Veteran was participating in two different group or therapy sessions. He has maintained significant long-term social relationships. Instead of living alone, the Veteran has moved in with his significant other successfully since 2016, after having had two prior failed marriages which he attributed to his PTSD. Treatment records reflect he reported a positive relationship with grandchildren. Occupationally, the record reflects that the Veteran has been unemployed throughout the period on appeal. At the 2014 exam, he said he last worked in 2013, and that since 1985, he has done small home repairs, mostly alone. The Veteran says he stopped working, because of the physical demands of the job, but his psychotropic medications for PTSD, which he has been on since 2008 probably also played some part in his inability to continue his work as a handyman. Both the 2014 and 2020 VA examiners opined that the Veteran’s condition causes occupational and social impairment with reduced reliability and productivity, which the Board notes is among the symptoms listed for a 50 percent rating. The reason for this lower disability characterization is because the Veteran is no longer employed. The Veteran’s occupational impairments due to PTSD were so severe, they stopped him from working with others and had him working alone since 1985. Since the Veteran avoids triggers, by not working with others and not interacting with people who do not know him, and staying on his meds, his PTSD symptoms appear less frequent, severe and disabling. Overall, the Board acknowledges all the Veteran’s symptoms as he himself has described them but finds that the evidence does not demonstrate that the Veteran’s PTSD symptoms cause total occupational and social impairment. While the records reflect irritability and even thoughts of wanted to hurt others, he has never been deemed a danger to himself or others. The treatment records consistently reflect he was oriented and generally able to perform activities of daily living. He never presented with symptoms with such frequency, severity, or duration that it was more nearly like gross impairment of thought process, being a danger to himself or others, forgetting names of close relatives. Although the PTSD does significantly affect his social functioning, the Veteran’s PTSD symptoms most significantly affect his occupational functioning. Because the Veteran is not currently working, takes his medication, thereby avoiding his worst PTSD symptoms, a 70 percent disability rating best approximates the Veteran’s current level of functioning. Based on the foregoing, the Board finds that a preponderance of the evidence is against a rating in excess of 70 percent for PTSD. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Veteran contends that he is unable to follow substantially gainful employment due to symptoms and impairment caused by his service-connected disabilities. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a Veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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 disabilities shall be rated totally disabled. Submission to the Director, Compensation Service, for extraschedular consideration is warranted in all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a Veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a Veteran's service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a Veteran's service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a Veteran's earned 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. 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). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Moore, supra. The Veteran is currently in receipt of service connection for posttraumatic stress disorder with mood disorder, evaluated as 50 percent disabling from July 23, 2008 and 70 percent disabling from March 9, 2010; eczema/psoriasis, evaluated as 10 percent from July 23, 2008, tinea versicolor and hepatitis C, both evaluated as noncompensable. The combined evaluation was 60 percent from July 23, 2008 and 70 percent from March 9, 2010. The Veteran has met the schedular criteria of 38 C.F.R. § 4.16(a), throughout the period on appeal. The Veteran contends through his representative in his December 2020 appellate brief that as a direct result of his posttraumatic stress disorder; he views all individuals as Vietnamese soldiers who want to harm him; as such, he constantly avoids interactions as doing so would cause him to threaten to or possibly harm individuals with whom he interacts. Additionally, the Veteran contends that when he attempts to interact with others either in a social or professional setting, he feels that he is in Vietnam and constantly views not only others but the settings as well as threatening to his wellbeing. These symptoms of the Veteran’s Vietnam experience negatively impact his ability to hold any job requiring him to work with others. The Veteran also pointed out in his October 2019 Board hearing that he has never maintained a regular job since leaving the military due to his PTSD symptoms. For the first eight years after military service, he was constantly intoxicated and did not work. It was not until he got sober in 1979, when he got his life back on track that he started working. His first and only long-term job was working by himself for a friend and mentor from AA, who gave the Veteran work as a solo painter, painting properties he owned. The Veteran attests that the most he ever earned was less than 20 thousand dollars in one year due to his inability to work with others, because of his PTSD symptoms. In an August 2015 Notice of Disagreement (NOD), after being denied TDIU, the Veteran asks the question, “How do I keep a job if I am getting fired?” He admitted he was able to work physically, but incapable of working with others without conflict, explaining, “My handicap is mental not physical.” In a May 2014 correspondence to VA, the Veteran said he tried working with several construction companies, after he stopped drinking, and it was a disaster. His temper was out of control, he was paranoid all the time, and did not get along with any of his co-workers. The Veteran felt the other workers were taking advantage of him, because he had a good work ethic. He felt he was doing a lot of their work, which made him angry, and he let it be known. Each time he either quit or was asked to leave for not being a team player. By this time the Veteran had been in AA long enough to meet his mentor and friend, who provided handyman work for the Veteran; painting, doing drywall, and floors, which he did working alone. Working in solitude is the only work the Veteran has done successfully due to his PTSD symptoms. This is the only work the Veteran did for 39 years. The Veteran completed high school but was unable to complete studies at vocational school after military service. The Veteran has no special training, skills or education of record, beyond being a handyman. The Veteran has never been able to hold a regular job due to PTSD, which makes him unsuited to work with others. His employment history since military service shows he has only been successful as a contractor working alone for a sympathetic boss, mentor, and fellow AA member who provided work specially suited to the Veteran’s limitations due to PTSD. The Veteran has two failed marriages as proof of his PTSD-related social dysfunction. There are two buddy statements in the file that demonstrate the Veteran’s inability to get along with others, even straining the ability of those aware of his limitations. His only friend and mentor of more than 30 years says in his April 2010 lay statement that the Veteran’s temper has only gotten worse over the years. This is what his longtime girlfriend has to say in her April 2010 lay statement in the file: I have known him well over 25 years through Alcoholics Anonymous. He is well known in AA and is considered a “power of example” because he hasn’t drunk in over 32 years, however he is also known as someone who speaks his mind and is a loner. To some people that may seem like a good thing but as I have gotten to know him personally, I understand why. It is because he is very insecure, and his temperament will not allow him to have close relationships except with people who really understand him. He works odd jobs by himself because he cannot work with people. I have been in a relationship with him a little over 5 years. The first few weeks were fine but as time went on his temper began to show and there were many times that I broke off the relationship because I couldn’t accept his temper. Time and time again he would promise to try, and he has. Some other examples of his behavior are in his lack of tolerance towards other drivers, towards his neighbors, in the store, with smokers, and on and on and on. His family no longer speaks to him. After reviewing all the evidence of record, to include VA treatment records, VA examination reports, and lay statements, the lay and medical evidence is at least in equipoise on the question of whether the Veteran's combined service-connected disabilities have rendered him totally unemployable for purposes of individual unemployability. The Veteran at the October 2019 Board hearing attested to the fact he has been unemployed since some time in 2014. The Board's decision is based on consideration of all lay and medical evidence, and consideration of the functional limitations of the combined service-connected disabilities, rather than reliance only on the opinion of a VA examiner viewing each disability in isolation. Furthermore, none of the VA examination opinions adequately addressed the interplay between the Veteran's service-connected disabilities and his previous background, education, and employment history. The Board has considered the VA examiners' medical opinions to the extent that they show the degree of functional impairment caused by the Veteran's individual service-connected disabilities. However, the symptoms and functional impairments due to the service-connected disabilities, when viewed in relation to past work experience, education, and training, become more significant when evaluating the Veteran's inability to maintain substantially gainful employment since the July 16, 2014 AOJ rating decision denying TDIU which is before the Board on appeal. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the service-connected disabilities are of sufficient severity to render the Veteran unable to follow or maintain substantially gainful employment since July 16, 2014. 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. Neither the Veteran nor his representative has raised any other issues, 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 evidence of record). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.