Citation Nr: 21003208 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-25 949 DATE: January 19, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based in individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD has resulted in 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 conversation normal). 2. The Veteran does not meet the schedular criteria for TDIU; his service-connected disabilities do not combine to render him unemployable on their own. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent 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 9411. 2. The criteria for TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, the issue of an initial rating in excess of 30 percent for PTSD was originally denied in a March 2019 Board decision. The Veteran appealed the PTSD denial to the United States Court of Appeals for Veterans Claims (Court) and in October 2019, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision regarding the rating for PTSD, and remanded it for further consideration, as agreed to by the parties in the JMPR. The appeal returned to the Board in September 2020, at which time the Board found that the Veteran had raised the issue of entitlement to TDIU as part and parcel of his appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded both issues for further development. Although the issue of entitlement to TDIU was subsequently denied in November 2020 rating decision, that issue remains part and parcel of the increased rating claim. Both issues are now returned to the Board following the prior ordered development. 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) The Veteran seeks entitlement to an initial rating in excess of 30 percent for PTSD. The Board finds the claim should be denied. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran’s PTSD, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. The Veteran’s PTSD is rated under Diagnostic Code (DC) 9411, which compensates for that specific psychiatric disability, and applies the General Rating Formula for Mental Disorders. Under the applicable rating criteria, a 30 percent rating is granted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned 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. Id. Finally, a 100 percent rating is assigned 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. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. The Veteran was afforded an initial PTSD examination in September 2015. At that time, the examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms that were controlled by medication. The Veteran reported being married to his present wife for 15 years, describing his marital relationship as “good.” His wife reported that his symptoms had lessened over the years. The Veteran stated that his primary impact of PTSD is his aversion to children, and denied having a relationship with any of his three children. He denied having any close friends, but did have casual friendships through his wife and was social with his cousins. He holds a bachelor’s degree in engineering, which he earned after separation from service. He worked in building and contracting through 2004, at which time he opened a wine and beer supply store, where he was presently employed. Present symptoms attributable to his PTSD included anxiety, mild memory loss (such as forgetting names, directions, or recent events), and difficulty establishing and maintaining effective work and social relationships. He appeared for the examination well-groomed with good eye contact. Motor symptoms were unremarkable. His attitude was pleasant and appropriate with normal mood. Affect was euthymic and appropriate. Speech was spontaneous with normal rate and volume. Thought process was linear and logical. He denied delusions or hallucinations. He denied suicidal and homicidal ideation, intent, or plan. Orientation was intact with god attention/concentration and judgment. Intellectual ability was average. He did report some memory problems. Abstraction was normal. No other symptoms were observed. The examiner found him competent to manage his own financial affairs. Extracurricular activities included working on his home and yard, woodcarving, and jewelry making. He enjoyed scuba diving and belonged to two wood carving clubs. He also enjoyed golf and flu fishing, but had to give them up due to physical limitations. He and his wife enjoyed traveling, having recently traveled to South Africa. He also enjoyed taking cruises. He denied any legal issues. He denied excessive drinking, having cut back significantly in the past 6 months. He denied any drug use. During the September 2015 examination, the examiner described his anxiety as being due to significant intrusive memories of Vietnam, with associated avoidance reactivity. He cannot sit still and has to fill all of his time, feeling relaxed when wood carving or making jewelry. He was not aware of any excessive worry, but endorsed anxiety in crowded situations and around children. He denied significant depressive symptoms, although he did not feel particularly happy. His motivation was very good for his various projects. He denied panic attacks. He denied problems with sleep or nightmares. Memory was variable. Remote memory was good, but recent memory was less so. Concentration was okay for working on projects, but not good for conversations. His wife described him as distractible. He did not engage in any ritualistic behaviors. Impulse control was good. He was able to help with household chores as needed and denied any problems with personal hygiene. He was able to go shopping or run errands as needed. His wife did most of the driving as it irritated the Veteran’s neck issues. After careful review and consideration, the Board does not find that this examination warrants a rating in excess of 30 percent. Although certainly experiencing symptoms of PTSD, the Board finds that they do not add up to reduced reliability and productivity in general. At most, the Veteran has shown anxiety due to intrusive memories, some mild memory loss, although not so significant as to meet the 50 percent criteria in the rating schedule. Although he was found to have some difficulty adapting to a work environment, he is able to engage in social relationships. There is no evidence of more severe symptoms such as impaired judgment or impulse control. Indeed, his judgment and impulse control appear to be quite good. He travels and he engages in hobbies that he enjoys. He also reported some other hobbies which he would enjoy but for physical issues unrelated to his PTSD. Further, at the time of the examination, he was employed full time at a beer and wine store which he owned. As recently as May 2015, several months before this examination, VA treatment records indicate that he denied any symptoms of depression or a psychiatric order. Ultimately, he meets few of the examples of symptoms for a 50 percent or higher rating under the diagnostic criteria, and when taken as a whole, simply does not show occupational and social impairment with reduced reliability or productivity. Neither does he show impairment affecting “most areas” or total impairment at that time. In January 2016, the Veteran’s VA treating physician noted that he only had some “mild depression,” but showed no signs of a thought disorder, suicidal ideation, psychosis, significant memory impairment, panic attacks, or thought impairment. To the extent that only mild depression was found, and no other symptoms which would infer, when taken individually or as a whole with other symptoms, that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Indeed, at that time, the Veteran remained employed and t Here the Board notes that the JMPR found issue with the Board’s prior analysis of this evidence as it did not fully discuss a stressor checklist also completed on that day. The Board finds this evidence to not warrant a change in the Veteran’s rating. That screening questionnaire focused exclusively on the Veteran’s PTSD stressor, which occurred in service. Further, while that document reflects that Appellant reported experiencing repeated disturbing memories, thoughts, images, or disturbing dreams of a stressful Vietnam experience “[q]uite a bit,” and that he “[e]xtremely” avoided activities or situations reminding him of his stressful experience, lost interest in activities he used to enjoy, and felt distant or cutoff from other people, this evidence does not speak to his actual functional capabilities at that time. That the Veteran would have negative reactions to certain stressors is anticipated in any diagnosed case of PTSD. However, while he may avoid activities reminding of his stressful experience, or felt distant from other, there is no indication that this has resulted in a level of occupational or social impairment which would give rise to a higher rating at that time. Indeed, at that time he remained fully employed in a business he owned, remained married to his spouse, and denied many of the type of symptoms that might indicate a more significant level of disability. As such, when looking at the Veteran’s disability as a whole, the Board concludes that in January 2016, his PTSD did not warrant a rating in excess of 20 percent. In September 2020, in support of his claim, the Veteran submitted a vocational assessment. As was noted in its prior remand, the vocational consultant who provided the assessment is not a psychiatric specialist, and therefore is not competent to provide a medical opinion regarding the severity of the Veteran’s PTSD. However, the evidence is nonetheless relevant regarding his ability to obtain and maintain employment. With this regard, the Board does observe that the Veteran asserts he stopped operating his own business in 2017. That record indicated that the Veteran remained married to his wife, in a good marriage, although he did not have contact with his adult children. He also stated he had limited (although not completely absent) social contacts. He reported suspicion of children. He reported nightmares once or twice a week. He reported difficulty with short term memory and concentration. In light of this evidence, in September 2020, the Board remanded this appeal so that a new VA examination could be conducted; that examination occurred on November 4, 2020. During that examination, which was conducted by a licensed psychologist, the examiner found occupational and social impairment due to mild or transient symptoms which decrease work efficiency an ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran again reported a good relationship with his wife, whom he had been married to for 20 years, although continuing to not have contact with his adult children. He reported having a friend who lived in Florida, whom he sees every week, having a standing Thursday lunch date. He reported having retired to Florida in 2017. He had recently engaged in community service, making hundreds of masks with his wife, to be donated to his senior living community. He also belonged to the Orchid Society, raising orchids, and the Bonsai Association, also raising bonsai trees. He also was a member of the Sanibel Community Shell Crafters, crafting with shells to be sold for charity. He reported selling his business in 2017, and not being employed since that time. He regularly participated in VA peer support groups, addressing both PTSD and chronic pain. He denied any legal history. He reported having about one drink per night, and if he and his wife go out to eat, they might split a bottle of wine. His appetite was described as “too good” and that he watched his food intake carefully. He denied much physical activity, although he reported riding his bike and going to the gym prior to the onset of COVID-19 closing everything. He reported traveling a lot, “all over the world” with his wife, and he endorsed enjoyment of his hobbies and travel. He did not have difficulty falling asleep. He occasionally had nightmares. he stated that he would occasionally get irritated with his wife, but with other people, “they don’t bother me. I just let it roll over.” He denied outbursts of anger and endorsed occasional bouts of depression. He reported persistent difficulty with concentration, as well as anxiety, causing him to get rid of his guns, and install an alarm system on the house and keep the shades drawn. He also stated that he had feelings of hopelessness, although he acknowledged that this was due to recognition of the nature of his PTSD not going away. He denied suicidal ideation or attempts. When asked whether he hears or sees anything strange or unusual (ie- hallucinations), he stated that he hears noises a lot, like when the air conditioning goes on. He described his mood as not being happy-go-lucky, but rather placid. He denied any reckless behavior. Symptoms specifically identified by the examiner as contributing to his PTSD were depressed mood and anxiety. He presented to his examination as cooperative, talkative, and polite. He was oriented to person, place, time and purpose. Motor activity was calm. Speech was unremarkable in volume and rate, clear in quality, and logically directed without any evidence of incoherence, clanging, neologisms, perseverations, derailment, tangentiality, or poverty of content. He did not evidence hallucinations and denied any history of the same. There was no evidence of delusion. Current mood was serious, but reported as placid by the Veteran. Mood was appropriate, affect stable. The examiner concluded that the Veteran’s PTSD is not likely to have a substantial effect on his ability to be productive and reliably get work done in most employment settings, as evidenced by his 50-year, post-trauma employment history that was characterized by self-reported exemplary work performance. The Veteran’s PTSD was also not likely to have substantial adverse effect on his ability to concentrate in most employment settings, as evidenced by his present self-report of routinely concentrating well for hours on projects of interest, as well as any lack of persistently poor concentration during his 50 years of post-trauma employment. Likewise, the examiner found his PTSD not likely to have substantial adverse effect on his ability to work well with co-workers, supervisors, subordinates, and customers in most employment settings, based on the Veteran’s report that he only gets frustrated with his wife and lets other irritations roll over. In light of this evidence, the Board finds that a rating in excess of 30 percent is not warranted. While the Board does acknowledge the occupational survey submitted in September 2020, the Board again notes that this was not conducted by a psychiatric specialist, and therefore cannot speak to the specific nature of the Veteran’s PTSD and how it affects his everyday life. Rather, the Board finds the November 2020 VA examination far more probative in this matter. It was rendered by a psychiatric specialist following a detailed in-person examination of the Veteran, to include a review of the evidence of record, including the occupational survey. The November 2020 examiner, being a psychiatric specialist, is better qualified to identify the Veteran’s specific symptoms as attributable to his PTSD specifically, and assess his PTSD as it affects his entire life, not just his employability. In this regard, the Board finds that the evidence does not suggest that the Veteran’s symptoms have risen to a level warranting a 50 percent rating or higher. He has not shown any of the symptoms indicated for a 50 percent rating, with exception of some mild short-term memory loss (but not rising to the level of retaining only highly learned material or forgetting complete tasks), and some difficulty in maintaining effective work and social relationships. Even considering his social deficiencies, the Veteran regularly engaged in community service and multiple social clubs, which demonstrates the ability to engage in social and occupational endeavors without major impact. He has at least one friend, maintains a positive relationship with his wife, and travels the world without incident. His mood may occasionally show some evidence of depression or anxiety, but his affect is generally good, he does not have speech issues, he has never shown impaired judgment, his ability to think is intact. Taken as a whole, when considering the specific symptoms listed in the rating criteria, as well as the Veteran’s complete disability picture, as reported to both the private and VA examiners and occupational consultants, there is simply inadequate evidence to show that the Veteran’s PTSD has resulted in occupational and social impairment with reduced reliability and productivity, let alone deficiencies in most areas, or total occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In sum, the Board finds that, when considering the Veteran’s complete disability picture, his PTSD has not resulted in occupational and social impairment such that a rating in excess of 30 percent is warranted. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to a total disability rating based in individual unemployability (TDIU) The Veteran seeks entitlement to TDIU. The Board finds that the claim should be denied. A TDIU is assigned when a veteran’s service-connected disability or disabilities are of such severity that the veteran cannot secure or follow a substantially gainful occupation solely because of that disability or disabilities. 38 C.F.R. § 4.16. Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one service-connected disability, this disability shall be ratable at 60 percent or more. If there is more than one disability, there must 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). In the instant matter, given the Board’s denial of a rating in excess of 30 percent for PTSD, the Veteran’s combined disability rating during the period on appeal is 40 percent. As such, the schedular criteria are not met for TDIU and a grant is generally precluded. Under Roberson v. Principi, 251 F.3d 1378 (2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board must also consider TDIU even when the schedular criteria are not met. VA policy is that all Veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16 (b), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where Veterans are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Although the Board cannot assign an extraschedular TDIU in the first instance, it is not precluded from specifically adjudicating whether to refer a case for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Here, the evidence of record indicates referral for extraschedular consideration is not warranted. As an initial matter, the Board notes that the Veteran admits being employed full-time as a business owner through 2017. Status as fully employed prior to 2017 precludes entitlement to TDIU. From 2017 to the present, the evidence suggests that his unemployability is not precluded by his service-connected disabilities. While the Board acknowledges the vocational assessment submitted in September 2020, which argues that his PTSD, hearing loss and tinnitus prevent employment, the Board finds this of limited probative value. Particularly, while it does report symptoms of his disability, they have been reported by a vocational counselor, and not by a medical specialist able to attribute specific symptoms to the service-connected PTSD. Indeed, the conclusions of the vocational counselor appear to be inconsistent with medical record, and fail to account for the Veteran’s own abilities both in and outside of the workplace. In this matter, the Veteran maintains social and familial relationships, is capable of managing his own financial affairs, and engages in multiple hobbies, charitable, and social endeavors. His attention and focus is generally good for tasks he enjoys. He travels the world without incident. Exhibits excellent impulse control. While he does have issues with his hearing and tinnitus, there is nothing to imply that these specific disabilities have interfered with his employability such that he cannot engage in any endeavor. In short, there is simply inadequate evidence at this time to find that his PTSD, hearing loss, and tinnitus disabilities exclusively combine to render the Veteran unemployable on their own. As such, the Board will decline to refer the claim for further extraschedular consideration. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 510 ; 38 C.F.R. § 3.102.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel