Citation Nr: 21002818 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 16-45 830 DATE: January 15, 2021 ORDER An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 4, 2019, and in excess of 50 percent since December 4, 2019, is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to December 4, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. Since December 4, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms do not more closely approximate occupational and social impairment with deficiencies in most areas. 3. The Veteran has been substantially and gainfully employed. CONCLUSIONS OF LAW 1. Prior to December 4, 2019, the criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. Since December 4, 2019, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1990 to August 1998, September 2000 to September 2003, October 2003 to April 2005, and from October 2005 to November 2013. This appeal arises from a January 2015 rating decision, which granted service connection for PTSD (claimed as PTSD, anxiety attacks and depression) and assigned an initial rating of 30 percent, effective December 1, 2013. The Veteran appealed for a higher initial rating. The appeal further arises from a January 2017 rating decision, denying a TDIU. The Veteran testified at a Board videoconference hearing in May 2019, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In November 2019, the Board remanded the case to the AOJ for additional development and consideration. On remand, in a February 2020 rating decision, the AOJ increased the rating for the Veteran’s PTSD from 30 to 50 percent, effective from December 4, 2019. He has since continued to appeal, requesting an even higher initial rating. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (A Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). The file is again before the Board for further appellate review. 1. Entitlement to an initial rating higher than 30 percent prior to December 4, 2019, and in excess of 50 percent since for PTSD. The Veteran contends that he is entitled to the maximum 100 percent disability evaluation. See April 2016 Veteran’s statement (notice of disagreement form). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. 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. A. Initial rating higher than 30 percent prior to December 4, 2019 The Veteran asserts PTSD affects his quality of life with respect to working in intense and stressful situations. See April 2016 NOD. He also testified to having occupational difficulties and marital problems at his Board hearing. See May 2019 Board hearing transcript. There is highly probative evidence against a higher rating provided by the two VA examinations during this period on the severity of his PTSD, in December 2014 and again in December 2016. At the December 2014 VA examination, the Veteran reported he had been married for 17 years and had 3 children, with marital difficulties due to his anger. The Veteran reported being fired from his first civilian job as a recruiter due to “not playing well with others”, but that he was currently working night-shifts at a shipping company and enrolled in horticulture classes. He also reported nightmares, sleep impairment, some anger outbursts, mild discomfort with crowds, and anxiety attacks. On behavioral observation by the December 2014 VA examiner, the Veteran was cooperative and friendly, appropriately dressed and groomed, showed full affect, upbeat mood, normal cognition, good insight and judgment, and denied suicidal or homicidal ideation. The examiner also specifically noted PTSD symptoms of anxiety attacks, suspiciousness and panic attacks. The Veteran did not display any other PTSD symptoms. The examiner remarked that the Veteran’s signs and symptoms meet the DSM-5 criteria for “mild PTSD”. Moreover, the December 2014 VA examiner characterized the overall disability level of the psychiatric disorder as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Board finds that the VA examination report is highly probative as it was based on a review of the Veteran’s subjective symptoms and objective clinical findings. Next, the Veteran was reassessed for the severity of his PTSD by a VA examiner in December 2016. On behavioral observation by the December 2016 VA examiner, the Veteran was alert and oriented, with euthymic mood, irritability, and an “up and down a lot” mood. He also endorsed PTSD symptoms of intrusive thoughts, patterns of avoidance, hypervigilance. The examiner observed the Veteran’s thinking as goal-directed, future oriented, and noted that the Veteran’s concentration was within normal limits. The Veteran also reported sleep disruption due to bad dreams and stated that the “dreams are not as bad” currently. He added that he has had some distancing from others and has had some interpersonal conflicts at work. The examiner found the Veteran had PTSD symptoms of anxiety and disturbances of motivation and mood. Moreover, the December 2016 VA examiner characterized the overall disability level of the psychiatric disorder as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Board finds that the VA examination report is highly probative as it was based on a review of the Veteran’s subjective symptoms and objective clinical findings. At his May 2019 Board hearing, the Veteran also testified to memory impairment, stating, “I do tend to forget stuff a lot”. See Board hearing transcript, at 8. VA treatment records do not show evidence of increased mental health impairment. Overall, a review of the evidence does not demonstrate that the Veteran’s symptoms more nearly approximate the level of impairment required for the assignment of a higher rating. The Board acknowledges the Veteran’s disturbances of motivation and mood and indications of memory impairment. Despite such indication of memory impairment, there is no indication that he demonstrates other PTSD symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; or difficulty in establishing and maintaining effective work and social relationships that cause occupational and social impairment with reduced reliability and productivity. Rather, the evidence establishes that the Veteran’s symptoms more nearly approximate the symptoms and criteria for the currently assigned 30 percent rating. The appeal for an initial rating in excess of 30 percent prior to December 4, 2019 is denied. B. Rating in excess of 50 percent since December 4, 2019 Since December 4, 2019, the probative and persuasive evidence does not show that the Veteran’s symptoms cause the level of impairment required for a disability rating of 70 percent or higher. Rather, the evidence establishes that the Veteran’s symptoms more nearly approximate the criteria for the currently assigned 50 percent rating. In a December 2019 VA examination, the Veteran reported working in a full-time position in logistics for the government. He also reported that he continued to be married with 3 children, and spent most of his time with his family, but also sees a small group of friends every few months. He enjoyed working in his yard and gardening in his free time, and noted that he was studying horticulture at a community college but stopped attending a year before due to family and work obligations. The Veteran continued to be employed in a logistics role for the government and believed he is doing “great” at work, despite some occasional problems with irritability. He reported intrusive thoughts about trauma and endorsed nightmares a few nights per week, feeling emotionally detached from others and an inability to enjoy activities as much as he used to. He also stated that he has low motivation and a depressed mood most of the time with no significant periods of symptom remission since his last exam. He endorsed frequent irritability but was able to manage this well at work. He reported that he typically yells at his wife and kids about once or twice per week. The Veteran reported hypervigilance and being startled easily, especially to loud noises. He reportedly fell asleep easily but struggled to stay asleep. On behavioral observation, the December 2019 VA examiner found the Veteran arrived on time, was well-groomed and appropriately dressed; and alert and oriented to person, place, time and situation. The Veteran had a neutral mood with broad and appropriate affect; good eye contact; his speech was normal for volume, rate and prosody; his thought processes were clear, goal-directed and logical, and he denied homicidal ideation. Cognition was within normal limits although not formally assessed. The December 2019 VA examiner characterized the overall disability level of the psychiatric disorder as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Also, the symptoms that the examiner specifically found were limited to anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood. Notably, the December 2019 VA examiner observed the Veteran also exhibited occasional suicidal ideation, but with no plan or intent. The Board notes that the Veteran’s expressed suicidal ideation, which is contemplated by the 70 percent criteria, and a persistent danger of self-harm is contemplated by the 100 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the higher disability ratings. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, such as in VA mental health treatment notes dated in December 2019, January 2020, and June 2020. The Veteran’s VA treatment records do not show evidence of increased mental health impairment. Accordingly, the Board finds the evidence does not support that the Veteran exhibited most of the symptoms as are indicative of a higher 70 percent rating, including 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. Obsessive ritual behavior is not present. The Veteran’s speech has remained logical and normal. He has not exhibited near continuous panic or depression that affects his ability to function, although depression and anxiety are present. His appearance remains normal and hygienic. Also, he remains employed and married despite his instances of anger and irritability with his family members and colleagues. Total occupational and social impairment has not been demonstrated either. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent or a 100 percent rating. As such, the assignment of a higher rating is not warranted. Additional Considerations As indicated, the Board has considered the lay assertions in support of the Veteran’s claim. Indeed, the Veteran is competent to report on that as to which he has personal knowledge, such as anger problems, occupational difficulties, and marital problems. However, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on the severity of his psychiatric disability in relation to the applicable rating criteria. A medically complex matter such as this requires expertise in clinical psychology and psychiatry, which he does not possess. In contrast, the VA examiners are experts in clinical psychology/psychiatry. Their assessments considered the Veteran’s subjective complaints, social and occupational history, and the results of the objective mental status evaluations in determining the overall severity of his psychiatric disability. Thus, the VA examination findings and VA medical reports are of greater probative value. There is no basis to further stage the appeal. The appeal is denied. 2. Entitlement to a TDIU. The Veteran maintains that his unemployment is due to “all service connected disabilities”. See September 2016 TDIU application. The Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran is currently service-connected for multiple disabilities: (1) PTSD, (present 50 percent rating); cervical strain (20 percent); bilateral shoulder condition (10 percent); lumbar strain (10 percent); left hip and right hip disabilities (10 percent each side); right and left knee disabilities (10 percent each side); right foot plantar fasciitis (10 percent); tinnitus (10 percent); carpal tunnel syndrome of the bilateral upper extremities (10 percent each side); left foot pressure neuropathy (10 percent); left ear hearing loss (0 percent); and a scar inside his mouth (10 percent until October 24, 2016, and 0 percent since October 25, 2016). The Veteran’s combined rating for all service-connected disabilities is 90 percent. So, as a preliminary matter, the Board finds the Veteran meets the schedular criteria for a TDIU. However, compensation based on TDIU is not available to the Veteran because the Veteran has been working full time for nearly the entirety of the pendency of the appeal, and there is no evidence that the employment was marginal. The Veteran was separated from active duty in November 2013. At the time of his September 2016 TDIU application, the Veteran had reported full-time civilian work history as a hiring/retention specialist for a trucking company from service separation in 2013 through April 2014 with annual income of $38,400 (based on reported monthly income of $3200), and then a police officer for the Oregon State Police from February 2015 through April 2016 with prior annual income of $80,000. See September 2016 TDIU application; see also December 2016 VA PTSD examination, at 3. He also testified to working as a farm hand for a short period. See May 2019 Board hearing transcript. Just several months later, he was able to secure re-employment in a full-time capacity with the Oregon National Guard, as a Traffic Management Specialist; salary of $52,745 annually, and reportedly beginning in January 2017. See January 2017 VA mental health treatment note. The December 2019 VA PTSD examiner, based upon the Veteran’s reported history, also indicated that the “Veteran continues to work in logistics for the government. Veteran stated that he believes he is doing “great” at work, but has not received a formal review of his work in over two years. He stated that he is able to take breaks as needed.” He also testified to having full-time employment at his May 2019 Board hearing. Given the absence of any contravening evidence, the record shows that he has been substantially gainfully employed in a nonprotected environment with a salary above the poverty threshold. As such, the requirements for TDIU are not met. The evidence does not support the assignment of a TDIU, and the evidence is not in equipoise. As such, the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.