Citation Nr: 21002461 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-19 861 DATE: January 13, 2021 ORDER Entitlement to a total disability rating by reason of individual unemployability due to service-connected disability (TDIU) is granted. Entitlement to an extraschedular rating for the service-connected posttraumatic stress disorder (PTSD) with alcoholism is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, the probative evidence of record supports a finding that the Veteran has been unable to secure or follow substantially gainful employment as a result of his service-connected PTSD. 2. The symptoms and level of disability resulting from the Veteran’s service-connected PTSD are contemplated by the assigned schedular rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for the assignment of an extraschedular rating for the Veteran’s service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321 (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1964 to December 1967, with service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge. In April 2015 and April 2018, the Board remanded this matter for further development, which has been completed. 1. Entitlement to a TDIU The Veteran contends that his service-connected PTSD renders him unemployable. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching that determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, 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 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). Service connection is currently in effect only for PTSD, evaluated as 70% disabled and the Veteran meets the schedular TDIU criteria under 38 C.F.R. § 4.16 (a). This is his only service-connected disability. The question before the Board is whether the Veteran is unemployable by reason of his service-connected disability, taking into account his educational and occupational background. Initially, the Board notes that pursuant to the 2018 Board remand directives, in correspondence in December 2018, June 2019, October 2019, November 2019, December 2019 and April 2020, the RO requested that the Veteran submit additional evidence to support your appeal. The Veteran was asked to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. These letters were returned as undeliverable. An address verification inquiry confirmed that the RO had the correct address. Reports of contact dated March 2020 indicated that the Veteran verified that the RO had his correct address. He reported problems with his local post office and was informed that he could obtain the forms from his representative of record. As of date, no return phone call has been received. Importantly, the duty to assist is a two - way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Id. Therefore, the Board will not delay adjudication of the TDIU claim on appeal but rather will look to other evidence of record to determine whether a TDIU claim is warranted. At this juncture, the Board notes that the Veteran’s occupational and educational background is unclear. In statements in 2008 the Veteran reported that he had been unemployed for five years and had held approximately 31 jobs since separation from service. The Veteran endorsed difficulty concentrating and sleeping, startle reflex, anxiety and explosive rage. VA counseling notes in October 2007 and March 2008, recorded an occupational history of that included several jobs as salesman and as a sales manager. Reportedly, he was fired from most jobs due to angry outbursts. He was suffering from anxiety, chronic hypervigilance and persistent irritability with angry outbursts. Treatment notes showed that he was arrested approximately three times for domestic violence, which was noted to be related to alcohol use. VA treatment records dated in 2008 recorded no prior history of a suicide attempt but that the Veteran did express some suicidal ideation without plan or intent. It was noted that the Veteran recognized the role of alcohol in his suicidal thoughts. He was not deemed to be a suicide risk at that time. His GAF score was noted to be 45. The Veteran noted that his last job had ended because the company closed the plant. However, he was not confident he could work anymore because of increased avoidance of crowds and hyperarousal. He reported having been fired from a managerial position because he was caught in conflict between local and central management. He had an occupational history that included work as a materials manager, auto sales general manager, in equipment manufacture and check printer, as well as factory work. The clinician noted that the severity of his symptoms interfered with employment. A June 2008 VA examination report included a diagnosis of PTSD and alcohol abuse. The Veteran stated that he had completed a year and half of college, and had held 31 different jobs since service and was fired from a managerial position when employees complained he was too rough on them. He had also quit a job and most recently, his employer had closed down. The Veteran reported a history of domestic violence against his girlfriend. He was married for 18 years with no children. His marriage ended in divorce. The Veteran also reported a history of intermittent suicidal ideations but stated that he had never made a suicide attempt. The Veteran denied homicidal ideations. He further denied delusions. The Veteran endorsed impaired short term memory, but that he could maintain his activities of daily living. In January 2009, it was noted that the Veteran was arrested for domestic violence and that his girlfriend reported that she feared for her safety, as well as his safety. In April 2010, the Veteran apparently contacted the VA suicide hotline and reported that he was a danger to himself and others. He stated that he was suicidal and that he had a plan to overdose on his medications. He was transported to the emergency room with the intent to hospitalize him but no beds were available. The Veteran was evaluated and it was determined he could return home. A VA treatment record dated later that month noted that the Veteran had increased anxiety and panic. It was noted that he did not actually contemplate suicide but that he felt so out of control that he could not predict his behavior. In March 2011, the Veteran was hospitalized for approximately four days. He was diagnosed with alcohol dependence. The Veteran reported feeling more depressed, more anxious and easily angered. He also experienced poor concentration, impaired sleep, nightmares, intrusive memories, hypervigilance, feelings of detachment, avoiding crowds, low motivation and low energy. He endorsed occasional thoughts that life wasn’t worth living, but he denied suicidal ideation, plan, or intent and denied history of suicide attempts. The Veteran reported arguing with his girlfriend and occasionally feeling anger toward her but denied thoughts of violence toward her. He stated that he had been unable to work for several years due to his PTSD symptoms. Reportedly, he had last worked full-time in 2003, and held several temporary jobs thereafter. He denied suicidal ideations at the time. The Veteran also did not exhibit symptoms of PTSD at the time. It was noted that he had stopped taking his psychiatric medication due to alcohol intake for at least a week prior to the admission. He was determined not to be a significant risk to himself or others. A May 2011 VA treatment record noted that the Veteran had a tendency to use alcohol when he felt anxious. On VA examination in March 2016, the Veteran reported that he was divorced but had been in a relationship for 25 years. They resided in his condo. He described getting along with his partner most of the time and he expected they would remain together. The Veteran and his partner had a history of domestic violence and the Veteran reported that the last incident was in 2013 when he was arrested. The Veteran discussed limited relationships. He maintained a relationship with his brothers, with whom he talked monthly. Most of his relationships were through the internet. With regard to daily activities, he stated that he was able to complete his regular household chores and to self-care independently and regularly. He stated that in his free time he enjoyed spending time online. The Veteran reported that most days he experienced anxiety, stress and depression, which he tried to alleviate with exercise. Reportedly, he was hospitalized in 2013 for a suicide attempt. He was also hospitalized for detoxification in 2011 and attempted suicide after his arrest in 2013. The Veteran indicated that he remained unemployed. It was noted that the Veteran’s mental health symptomatology resulted in moderate to severe functional impairment in areas such as ability to work, maintain relationships, concentrate, maintain a stable mood and motivation, and his ability to cope with stress. The examiner noted near continuous panic or depression affecting ability to function, mild memory loss, difficulty in adapting to stressful circumstances, including work or a worklike setting, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was described as casually dressed and adequately groomed. While the Veteran smelled of alcohol, he denied having consumed any that day. There was no abnormal behavior evident. The Veteran’s gait and posture were normal. Speech was clearly articulated. He was oriented times three and his answers were logical and relevant to the questions asked. There was no evidence of psychosis, and he denied any auditory or visual hallucinations. Attention and concentration were good to fair throughout the examination and memory appeared to be intact. The Veteran denied suicidal or homicidal ideation. The examiner concluded that the Veteran’s psychiatric symptoms were productive of occupational and social impairment with reduced reliability and productivity. The evidence is in equipoise as to whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disorder. The record indicates that the Veteran has struggled occupationally and has generally remained either underemployed or unemployed throughout the appeal. It appears that the Veteran completed a year and a half of college and worked in multiple capacities, including managerial work. Nonetheless, a review of the evidence supports a finding that the Veteran’s psychiatric symptoms played a significant role in his unemployability. The VA examiners and treating mental health providers have generally opined that the Veteran’s PTSD results in moderate to severe social and occupational impairment. He has a history of suicidal ideation and one attempt, depression, anxiety and anger management problems with episodes of violence. On VA examination in March 2016, the examiner determined that the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity. Considering the impact of the Veteran’s psychiatric symptoms on his interpersonal skills, his inability to learn new tasks, his occupational and educational background, the Board finds that the Veteran’s PTSD renders him unemployable. In sum, the Board finds that the weight of the evidence supports a finding that the Veteran’s psychiatric symptoms alone, would more likely than not render the Veteran incapable of more than marginal employment in any type of work setting, whether physical or sedentary. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). 2. Entitlement to an extraschedular rating for service-connected PTSD with alcoholism The Veteran seeks an extraschedular for his PTSD with alcoholism. The Board generally must consider referral for extraschedular consideration only “[w]here there is evidence in the record that shows exceptional or unusual circumstances or where the Veteran has asserted that a schedular rating is inadequate.” Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (quoting Yancy v. McDonald, 27 Vet. App. 484, 493 (2016) (internal quotations omitted)). In Doucette, issued after the December 2014 remand, the United States Court of Appeals for Veterans Claims (Court) held that an extraschedular rating is not warranted if the manifestations of the disability are contemplated by the rating criteria. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Upon a review of the record, the Board finds that entitlement to an extraschedular rating for PTSD is not warranted. Initially, it is relevant to note that the available schedular rating includes consideration of a host of symptoms ranging from those that are mild and transient, to those that cause total social and occupational impairment pursuant to the General Rating Formula for Mental Disorders included at 38 C.F.R. § 4.130. Importantly, because the use of the term “such as” in the rating criteria demonstrates that the symptoms after the 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, as noted in the final April 2015 Board decision that awarded an initial 70 percent rating for the Veteran’s PTSD, the entire host of his symptoms were considered in assigning his rating, not just those listed in the General Rating Formula for Mental Disorders. Indeed, the available evidence indicates that the Veteran’s PTSD symptoms are contemplated by the currently assigned schedular rating and the rating schedule itself. In this regard, VA treatment records, examination reports and lay statements of record reveal that the Veteran’s PTSD symptoms include, anger outbursts, depression, anxiety, mild memory loss, avoidance of crowds, exaggerated startle response, hypervigilance, impaired sleep, irritability, nightmares, suicidal thoughts, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control and difficulty in adapting to stressful circumstances. These symptoms are contemplated by the Veteran’s schedular rating for PTSD under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. Moreover, even if one were to assert that these symptoms are not contemplated by the rating schedule, which no one has, there is no evidence to suggest that the Veteran’s PTSD symptoms have caused marked interference with employment or frequent periods of hospitalization, such that his disability picture could be described as exceptional or unusual. Indeed, the Veteran does not contend, and the record does not suggest that he has been hospitalized for his PTSD symptoms frequently during the appeal. To the contrary, records indicate he has not been hospitalized for psychiatric symptoms since 2013. While the Veteran has reported his PTSD symptoms interfere with employment, a TDIU has been granted herein. Thus, the record does not support a finding that the Veteran’s symptoms are not contemplated by the schedule or that they have created an exceptionally unusual disability picture. Furthermore, even if the symptoms were not contemplated by the schedule, and did create an exceptional disability picture, which has not been raised or suggested by the Veteran or his representative, the Director has found that the Veteran’s PTSD disability picture is not so unusual that an extraschedular rating should be assigned. Specifically, in June 2020 the Director in an advisory opinion found that there was no impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. A review of records, noted the Veteran was living with his girlfriend, and had been in the relationship for over 25 years. He generally described a mutually emotionally supportive relationship. He also related having good relationships with his family, and regular contact with mother and siblings. Records in 2008 noted a steady work history and voluntary departures from most of his jobs, until the last one. He had been employed as a materials manager at a biotech company for five years, until the plant closed due to overseas competition. Significantly, the VA examiner in March 2016, opined that the Veteran’s psychiatric symptoms were productive of occupational and social impairment with reduced reliability and productivity. The Director concluded that the Veteran’s psychiatric symptoms clearly did not result in total occupational and social impairment. Therefore, the Director concluded that entitlement to an extra-schedular rating should be denied. Thus, the Board finds an extraschedular rating is not warranted for the Veteran’s PTSD. (Continued on the next page)   In reaching the above 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, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.