Citation Nr: 21002472 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-17 245 DATE: January 13, 2021 ORDER Entitlement to a 70 percent rating from June 6, 2016 for posttraumatic stress disorder (PTSD) with major depressive disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. For the entire appeal period, a rating in excess of 70 percent for PTSD with major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from June 6, 2016, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, prior to June 6, 2017. 2. During the appeal period, the Veteran’s PTSD does not cause total occupational and social impairment. 3. From June 6, 2016, the Veteran’s service-connected PTSD prevents him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, prior to June 6, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 70 percent for PTSD with major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, DC 9411. 3. From June 6, 2016, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1969 to March 1971. This case is on appeal to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in August 2017. Most recently, this case was remanded to the AOJ in October 2020. On remand, the AOJ granted a 70 percent rating for PTSD, effective June 6, 2017, and entitlement to a TDIU from June 6, 2017. See October 2020 AOJ rating decision. As noted in the Board remand, the appeal period includes the one-year period prior to the filing of the Veteran’s claim, or to June 2016. See 38 U.S.C. § 5110(b)(2). Therefore, the remaining issues before the Board are whether the Veteran is entitled to a rating in excess of 50 percent for PTSD prior to June 6, 2017, or in excess of 70 percent from June 6, 2017, or if he is entitled to a TDIU prior to June 6, 2017. The Board finds that the AOJ substantially complied with the remand directives and that claim is ready for adjudication. 1. Entitlement to a rating in excess of 70 percent for PTSD with major depressive disorder Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran’s PTSD is rated under 4.130, Diagnostic Code 9411. 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). A 70 percent rating is provided 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 a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided for 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, DC 9411. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Id. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); 38 C.F.R. § 4.126(a). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). The Veteran filed for an increased rating for his PTSD on June 6, 2017. As explained above, the questions before the Board include whether a higher rating is warranted ata any point for the year prior to June 6, 2017, or in excess of 70 percent at any point during the appeal period. The Board concludes that a 70 percent rating is warranted from June 6, 2016, and a rating in excess of 70 percent is not warranted at any point. Turning to the evidence, the Veteran’s outpatient records indicate that he attended and participated appropriately in group therapy during the appellate period, including from 2016, approximately monthly. At an appointment in June 2016, the Veteran reported chronic symptoms. His energy was low and sleep was fragmented. He was taking medications for depression and insomnia. The Veteran presented with anxious affect. He denied suicidal ideation, and no hallucinations or delusions were documented. In November 2016, the Veteran reported that his PTSD symptoms were worse around the holidays. He discussed problems with intrusive memories, distressing thoughts, alienation, hypervigilance, anxiety, and avoidance. In February 2017, the Veteran presented to a mental health appointment with anxious affect. He denied suicidal ideation and had no psychotic symptoms. In May 2017, the Veteran’s documented PTSD diagnoses included insomnia, intrusive thoughts, avoidance, and hypervigilance. The Veteran was afforded a VA examination in August 2017. The Veteran met the diagnostic criteria for PTSD, and was seeing a psychiatrist for medication management. He reported that his wife had been a great support system. The Veteran’s PTSD symptoms included recurrent, involuntary, and intrusive distressing memories; distressing dreams; avoidance; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent negative emotional state; persistent inability to experience positive emotions; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance; depressed mood; anxiety; suspiciousness; impairment in short and long term memory; inability to establish and maintain effective relationships; and difficulty adapting to stressful circumstances. The Veteran did not have spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, impaired impulse control, periods of violence, neglect of personal appearance and hygiene, or disorientation to time or place. The Veteran maintained good eye contact during the examination, had normal speech, had fair insight and judgment, and denied obsessions, compulsions, or phobias. The examiner indicated that there had been a worsening of the Veteran’s symptoms. In correspondence dated in September 2017, the Veteran explained that he had a difficult time expressing himself at the VA examination, and he was also experiencing anger, mood swings, alienation, flashbacks, nightmares, aggression, and intrusive memories. He reported having no interaction with his family and that his wife was afraid and anxious around him. The Veteran underwent another VA examination in December 2017. The examiner indicated that the Veteran’s depressive symptoms had progressed, and the Veteran met the diagnostic criteria for major depressive disorder in addition to PTSD. The Veteran reported past suicidal ideation, but denied suicidal thoughts on the day of the examination. He reported limited interactions with his wife, panic attacks more than once per week, chronic sleep impairment, and disturbances of motivation and mood. The Veteran’s hygiene and eye contact were appropriate. His speech was not impaired, and thoughts were coherent and goal-directed. The Veteran did not experience hallucinations, delusions, or paranoia. He was oriented, alert, and cooperative. The examiner indicated that his PTSD symptoms impacted his ability to work because he would have difficulty with persistent and consistent work over an extended time, managing change, interacting with people, managing emotions, handling time pressures and multiple tasks, and concentrating. According to outpatient notes, throughout 2018, 2019, and 2020, the Veteran continued to have depressed mood, anxiety, conflicts with his wife, and constricted affect. He denied suicidal ideation and homicidal ideation. He also had decreased concentration, nightmares, and intermittent intrusive memories. After a de novo review of the evidence, the Board concludes that the evidence supports a 70 percent rating from June 6, 2016, but no higher. For the year prior to the filing of the claim, the outpatient records show that the Veteran had symptoms such as low energy, fragmented sleep, depression, insomnia, anxiety, intrusive memories, distressing thoughts, alienation, hypervigilance, and avoidance. These symptoms represent deficiencies in relationships, thinking, and mood, which are most areas of his life. Moreover, thereafter, the record documented PTSD symptoms such as suicidal ideation, sleep impairment, nightmares, social isolation, panic attacks, and depressed mood, which continued to represent deficiencies in most areas of the Veteran’s life. Thus, the Board finds that the evidence shows that a 70 percent rating is warranted for the entire appeal period. The Board also finds that a 100 percent rating is not warranted as the Veteran did not have total social and occupational impairment during the appeal period. The Veteran maintained an ability to identify and report problems to his psychiatrist and cooperate with providers, which indicates he did not have a total social impairment. Although he recently reported limited interactions with his spouse, he has also reported that she had been a great support system. The Veteran was always coherent, and oriented to time and place, he exhibited no hallucinations or delusions, and did not have major memory loss, such as forgetting his own name. There is no evidence in the record of an inability to perform activities of daily living, such as maintaining minimal hygiene. There is no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, or disorientation to time or place. While the Board acknowledges that the Veteran’s symptoms were documented to have worsened, such that depressive disorder was diagnosed, the evidence does not support a finding that the Veteran’s PTSD symptoms totally impaired the Veteran’s functioning. For instance, the Veteran continued to attend group therapy appointments and participated. There is also no indication that the Veteran was in persistent danger of hurting himself, and the evidence shows that the Veteran maintained his thought processes. As the Veteran’s PTSD symptoms, including irritability, hyperarousal, anxiety, intrusive thoughts, depressed mood, sleep impairment, disturbances of motivation, difficulty maintaining effective relationships, and suicidal ideation are contemplated by a 70 percent rating, a 100 percent rating is not warranted. In conclusion, the claim for a rating in excess of 70 percent is denied. 2. Entitlement to a TDIU Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38 C.F.R. § 4.16 (a). 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). See also Faust v. West, 13 Vet. App. 342 (2000). Substantially gainful employment contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). A rating decision code sheet shows that the Veteran is service-connected for: PTSD, and a 70 percent rating was granted herein from June 6, 2016; and coronary artery disease (CAD), rated at 10 percent from June 2012. Thus, from June 6, 2016, the Veteran has a combined rating of 70 percent, with at least one disability rated at least 40 percent disabling from June 2016, meaning he meets the threshold schedular eligibility requirements for TDIU for the entire appeal period. The question, then, is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his PTSD and CAD. As explained in greater detail below, the Board concludes that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation from June 6, 2016. Turning to the evidence, the Board notes that the Veteran underwent a VA examination for PTSD in January 2014. He reported a tendency to isolate himself, and spending significant time in his garage for solitude. The Veteran attempted to attain his GED, but was unsuccessful. He was working for a trucking company before and after service. The Veteran retired from work at a trucking company around 2004. The Veteran was also afforded a VA examination for his CAD in January 2014. The examiner opined that the Veteran’s heart impacted his ability to work because he would be unable to perform physically demanding work due to fatigue. At an outpatient appointment in March 2014, the Veteran reported that he retired from driving trucks. The Veteran had a VA examination for PTSD in January 2017, but the examiner did not directly report the impact of the Veteran’s PTSD symptoms on his ability to work. However, the Veteran’s symptoms included an inability to establish and maintain effective relationships, impairment of short and long term memory, and difficulty adapting to stressful circumstances, including a work-like setting. In October 2017, the Veteran submitted a written statement. He reported that when he was working, his PTSD symptoms caused him to be “asleep at the wheel,” and he was hostile. The Veteran also explained that he had not worked since 2003. He believed he was only qualified for manual labor, but could not perform strenuous activities because of his heart. At a VA examination in December 2017, the Veteran reported that he used to work at the trucking companies on the platform, but he began driving so he could be alone and because he could not get along with others. The examiner opined that the Veteran was occupationally impaired from PTSD. After reviewing the evidence, the Board concludes that a TDIU is warranted for the entire appeal period, or from June 6, 2016. The evidence shows that the Veteran has not been substantially gainfully employed since 2003. Moreover, his service-connected CAD and PTSD impact his ability to work. The Veteran’s PTSD causes social isolation, anger and irritability, difficulty adapting to work-like setting, and an inability to maintain effective relationships. Moreover, the Veteran’s CAD limits him from doing physically demanding jobs. There is no evidence in the claims file that the Veteran has qualifications or experience that would allow him to work in a job that is not physically demanding. Therefore, the Board concludes that granting the Veteran’s TDIU claim from June 6, 2016 is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.