Citation Nr: 21003584 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-17 808 DATE: January 22, 2021 ORDER Throughout the appellate period, entitlement to a rating of 70 percent, but no higher, for posttraumatic stress disorder is granted. Entitlement to a total disability based on individual unemployability is denied. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran’s posttraumatic stress disorder is characterized by occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms of near-continuous panic or depression, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. It is not manifested by total occupational and social impairment. 2. The Veteran’s service-connected disabilities do not prevent him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Throughout the appellate period, the criteria for a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for total disability based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1990 to August 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, NC. In October 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In January 2020, the Board remanded the claims to obtain an examination to determine current severity of posttraumatic stress disorder and obtain treatment records and information regarding the Veteran’s employment at a grocery store. In September and October 2020, the VA requested private medical treatment records and information regarding the Veteran’s employment at a grocery store. Such treatment records and employment information has not been received. Following the Board remand, an October 2020 rating decision by the RO granted increased rating of 70 percent for posttraumatic stress disorder from February 24, 2020. As this is considered a partial grant, the Board will proceed to adjudicate entitlement to a higher rating throughout the entire period under appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s post-traumatic stress disorder (PTSD) is evaluated under Diagnostic Code (DC) 9400. Under DC 9411, which is governed by a General Rating Formula for Mental Disorders (General Rating Formula). In relevant part, a 50 percent rating is warranted where there is 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. A 70 percent rating is warranted 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 work-like setting); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that 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. Id. at 442. Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 1. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder prior to February 24, 2020 and higher than 70 percent thereafter. The Veteran contends that his posttraumatic stress disorder (PTSD) warrants a rating in excess of 50 percent prior to February 24, 2020. His PTSD is rated 50 percent disabling from March 23, 2010 and 70 percent disabling from February 24, 2020. He filed a claim for increased evaluation that was received on September 27, 2012. The Veteran testified that since his last PTSD examination in June 2013, his PTSD symptoms have worsened and resulted in him leaving a job. He testified to anger problems which he expresses verbally toward others and difficulty with relationships with family and friends. He further testified that his memory loss has worsened. See October 2019 Hearing Transcript. Prior to February 24, 2020 January 2013 VA examination showed a diagnosis of PTSD and major depressive disorder. The Veteran’s diagnoses were characterized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Symptoms included depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner remarked that the Veteran does not appear to pose a threat of danger or unto self or others, difficult in adapting to stressful circumstances, including work or a worklike setting. The examiner stated that the multiple axis I diagnoses are related and the secondary diagnosis is a progression of the primary diagnosis because depression is caused by anxiety and traumatic memories. The examiner stated that it is not possible to differentiate what portion of each symptom is attributable to each diagnosis because the symptoms overlap. In a February 2013 buddy/lay statement, a friend and coworker of the Veteran stated that he often becomes enraged over minimal and often times moot reasons and then seems distant and depressed. The statement continued to assert that his temper is quick and once he is triggered, he is a different person and it is impossible to reason with him. The colleague stated that the Veteran’s temper and internal struggles have affected his professional life significantly as he has had several clashes with their direct supervisor. The most apparent affect, the colleague stated, has been in the Veteran’s attendance. According to his colleague, he has a very difficult time regularly attending work and has been confronted over it several times as he barely makes the minimum requirements for company standards. He also has a hard time showing tolerance to new employees on the jobsite, his coworker stated. He stated that the Veteran is impatient and has difficulty providing assistance to others for better standards and practices. He stated that there have been many outbursts and near violent incidences through profane displays of anger over these situations and cannot be reasoned with. Over the last few years, his coworker states, he has gotten much worse and his overall job satisfaction has diminished and deteriorated significantly. Further, his friend stated that struggle has also affected his personal and social life. His coworker stated that among friends, the Veteran’s demeanor has quickly changed for no apparent reason and he has become incoherent. The coworker stated that the Veteran has always been a reliable person despite some instability, but his increasing outburst and diminishing demeanor over the last few years has ruined many relationships and pushed many people away. It has continually gotten worse and do not see many instances of noticeable improvement, his friend stated. June 2013 private psychological assessment, Dr. C.C., PhD in psychology, indicated that cognition, concentration and communication functions were periodically erratic but typically intact. Mood dynamics were consistent with moderately severe anxious depression with possible indications for a bipolar disorder mood process. The Veteran did not demonstrate self-harm ideation, agitation, aggressiveness, or psychoses. He denied any history of intentional, self-harm behaviors. The Veteran reports being married for 24 years. He stated that his PTSD symptoms have precipitated verbal and anger spectrum conflicts with his wife on multiple occasions. July 2013 private psychological assessment showed PTSD anxieties frequently negate efforts to develop age appropriate interpersonal trust relationships. The Veteran lacks meaningful supportive relationships in his community secondary to complications from PTSD symptoms. Stress dynamics associated with the Veteran’s wife’s poor health are ongoing. However, the Veteran indicated that he and his wife enjoy periodic casual walks together. October 2013 private psychological assessment note that the Veteran’s PTSD spectrum anxieties have been stimulated by his wife’s decision to initiate a marital separation in October 2013. The Veteran did not reflect any implicit ideation pertaining to aggressiveness toward his estranged spouse. September 2013 VA treatment records show that the Veteran’s thoughts were goal directed, no psychosis reported or observed, no suicidal ideation reported and has positive future plans, oriented. November 2013 VA treatment records continue to show no suicidal ideation reported although some passing death wishes since spouse left, oriented. January 2014 private psychological assessment show that the Veteran continues to experience PTSD with related episodes of impaired concentration and impaired cognition. Impaired cognition periodically interferes with efforts to communicate effectively within primary family relationships and friendships. Impaired cognition and concentration also affect his work during the daytime hours. The Veteran presented with episodes of moderately severe PTSD anxiety. November 2019 and February 2020 private psychological assessments indicated that the Veteran was experiencing angry outbursts, anxiety and worry, depressed mood, difficulty with intimate relationships, diminished ability to feel pressure, dissociative episodes (flashbacks), distressing and intrusive memories of trauma, excessive, inappropriate guilt, feelings of detachment from others, feelings of worthlessness, generalized anxiety, irritable mood, pessimistic thinking and sensitivity to rejection. Anxiety and depression described as moderate to severe. Memory appears unimpaired. He denies hallucinations. Judgment is good. Attention/Concentration is characterized by an ability to attend and maintain focus. Regarding impulse control the Veteran shows poor frustration tolerance. There was no evident risk of suicide or physical violence. He has a history of rage and anger management related issues manifested as angry outbursts. January 2020 VA treatment records note persistent dysphoric disorder. Early February 2020 VA treatment records show reports of feeling more “irritable and emotional” since starting new medication. He relayed that his wife has told him he’s been more irritable as well. He reported having a “meltdown” the day prior. From February 24, 2020 September 2020 VA examination showed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner provided a diagnosis of posttraumatic stress disorder with transvestic disorder with fetishism with other specified obsessive-compulsive disorder. The examiner found that the additional conditions of transvestic disorder with fetish with other specified obsessive-compulsive disorder is directly due to or related to the Veteran’s service connection PTSD. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened effect, disturbances of motivation of mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, suicidal ideation, and grossly inappropriate behavior. The examiner opined that the Veteran has difficulty maintaining concentration and focus on work over a period of time and tends to skip from one task to another without completing the prior task. The examiner further stated that the Veteran has intrusive thoughts which interfere with the ability to stay focused on the task at hand. Additionally, he has significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict). Based on the above, the Board finds that throughout the appellate period, the level of impairment caused by the Veteran’s symptoms more closely approximate a 70 percent rating because he experienced occupational and social impairment with deficiencies in most areas due, in part, to suicidal ideations. Throughout the appellate period, his PTSD is manifested by symptoms of near-continuous panic or depression, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. January 2013 VA examination noted occupational and social impairment in most areas. July 2013 treatment record noted that the Veteran lacks meaningful supportive relationships in his community secondary to complications from PTSD symptoms. November 2019 to February 2020 treatment records noted continued anxiety and depression, which was described as moderate to severe. The records also noted impaired impulse control. Such symptoms are consistent with a 70 percent rating. The overall evidence does not, however, demonstrate the level of impairment associated with a 100 percent rating at any time in appellate status. While the overall record shows deficiencies in most areas, at no time did his symptoms cause total occupational and social impairment. It is not manifested by gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, inability to perform activities of daily living, disorientation to time or place; and/or significant memory loss or similar manifestations reflective of total impairment. That is, although the record shows that the Veteran’s PTSD limits his abilities in most areas, social and occupational functions were not completely limited, as the examinations of record and treatment notes show he retains some functional ability to perform daily activities. On this basis, the evidence does not reflect total impairment. Resolving reasonable doubt in the Veteran’s favor, the Board finds that throughout the appellate period, the Veteran’s symptoms resulted in the level of impairment consistent with a 70 percent rating. Accordingly, a rating of 70 percent, but no higher, for PTSD is granted throughout the appeal period. 2. Entitlement to a total disability based on individual unemployability. The Veteran contends that his service-connected disabilities prevent him from securing and maintaining substantially gainful employment. Specifically, he testified that his PTSD symptoms resulted in him leaving employment in May 2013. See October 2019 Hearing Transcript. The VA received the Veteran’s Application for Increased Compensation based on Individual Unemployability in February 2014. Prior to submitting a formal claim for individual unemployability, the Veteran raised the issue of entitlement to a TDIU as part of his increased rating claim for PTSD, which was received on September 27, 2012. When entitlement to a total disability rating based on individual unemployability is raised in connection with an increased rating claim for one or more service-connected disabilities, the Board has jurisdiction over the issue because it is part of the claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the claim is included in the current appeal. The Veteran’s combined rating for his service-connected disabilities was previously rated 60 percent disabling from October 30, 2013. Per the above decision, his combined rating is increased based on the increased rating to 70 percent for PTSD throughout the appeal period. Service-connected disabilities have, throughout the appeal period, included PTSD and tinnitus. Where a schedular rating is less than total, a total disability rating may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided certain requirements are met. Under 38 C.F.R. § 4.16(a), if there is only one such disability, then this disability shall be ratable at 60 percent or more; if two or more such disabilities, then 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); see also 38 C.F.R. § 4.25. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a 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, 529 (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 his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran reported that since February 2018, he has worked at a grocery as a scanning coordinator, earning $2000 monthly, at highest. However, he indicated that prior to that, he last worked in May 2013 for a railroad company, wherein he had been employed as a locomotive engineer since March 2003. He reported that the highest he earned monthly was $6,000 and his average monthly salary was $5400. He indicated that the most he earned in one year was in 2012, when he earned $72,000 annually. He stated that he missed 115 days due to his PTSD. See February 2014 and January 2020 Applications for Increased Compensation based on Unemployability. See also January 2015 Rehabilitation Needs Inventory. During a January 2013 VA examination, the Veteran reported that he has worked as a railroad engineer for seven years. He indicated that he misses work one or more times weekly due to fatigue from insomnia or anxiety. Further, he reported a history of conflict at work. In a February 2013 buddy/lay statement, a coworker of the Veteran stated that the Veteran’s temper and internal struggles have affected his professional life significantly as he has had several clashes with their direct supervisor. The most apparent affect, the colleague stated, has been in the Veteran’s attendance. According to his colleague, he has a very difficult time regularly attending work and has been confronted over it several times as he barely makes the minimum requirements for company standards. He also has a hard time showing tolerance to new employees on the jobsite, his coworker stated. He stated that the Veteran is impatient and has difficulty providing assistance to others for better standards and practices. He stated that there have been many outbursts and near violent incidences through profane displays of anger over these situations and cannot be reasoned with. Over the last few years, his coworker states, he has gotten much worse and his overall job satisfaction has diminished and deteriorated significantly. In a June 2013 private psychological assessment, Dr. C.C., stated that the Veteran has been unable to pursue gainful employment for the railroad due to escalating posttraumatic stress disorder flashback symptoms which impair concentration and decision making as a locomotive engineer since May 2013. In an October 2013 private psychological assessment, Dr. C.C. stated that the Veteran cannot pursue gainful employment secondary to the severity of debilitating PTSD symptoms. The psychologist further stated that the Veteran’s war trauma related anxiety symptoms are debilitating and inconsistent with any effort to pursue gainful employment. The psychologist stated that trauma spectrum anxieties have increased significantly in conjunction with the Veteran’s anticipation of a cervical spine surgery. December 2013 private psychological assessment noted that NOS type persecutory projections were evident vis a vis former coworkers at the Railroad. The Veteran did not reflect any implicit aggressive associations vis a vis from coworkers. The psychologist stated that the Veteran continues to reflect notable physical limitations secondary to his neurosurgery and a postsurgery fall impacting the right shoulder. In a January 2014 private psychological assessment, the psychologist stated that the Veteran cannot pursue gainful employment due to the impact of PTSD symptoms. The Veteran continued to experience PTSD with related episodes of impaired concentration and impaired cognition. The psychologist stated that his PTSD symptoms are inconsistent with any effort to pursue gainful employment due to impairments of cognition and concentration during trauma related flashback episodes which are primarily during daytime hours per recent assessments. September 2020 VA examination showed symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation of mood, difficulty in establishing and maintaining effective work relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and grossly inappropriate behavior. The examiner opined that the Veteran has difficulty maintaining concentration and focus on work over a period of time and tends to skip from one task to another without completing the prior task. The examiner further stated that the Veteran has intrusive thoughts which interfere with the ability to stay focused on the task at hand. Additionally, he has significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict). The Veteran obtained an Associate’s degree in arts and completed one year of information technology training in 2016. However, he had discord with faculty and staff at the technical program; it was indicated that he lacked participation and progress in the VR&E program. See May 2019 VR&E Report. The Board has considered probative evidence in favor and against the claim, particularly regarding the severity of the limitations his service-connected disabilities. Upon such consideration, however, the Board finds that the preponderance of evidence weighs against the claim. Specifically, the Board finds that the evidence does not support a finding that throughout the appellate period, the Veteran’s service-connected disabilities alone cause his unemployability. In this case, the Board has considered the Veteran’s previous employment, education level and training, and his PTSD and tinnitus along with non-service-connected orthopedic disabilities. Here, the evidence shows that throughout the appeal period, although his service-connected disabilities significantly, particularly the psychiatric disorder, limited him from obtaining and maintaining employment consistent with his employment and educational background, there is evidence that such limitation was also due to non-service connected knees. It has been indicated that his non-service-connected knee disability impairs his ability to perform the physical duties that are consistent with his labor experience on the railroad. It has also been indicated that his anxieties have increased significantly in conjunction with anticipation of a cervical spine surgery and he continues to reflect notable physical limitations secondary to his neurosurgery and a postsurgery fall impacting the right shoulder. Moreover, his jobs have involved working on his feet for long periods of time and reports have indicated that orthopedic diagnoses of the back and knees caused difficulties; the Veteran has reported aggravation from being on his feet all day. Further, he has expressed desire for a sedentary position due to limitations posed by his knees, which are not-service-connected. Additionally, the Board emphasizes that the mere fact that a veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough warrant a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s PTSD showed occupational impairment manifested by impaired concentration and impaired cognition, disturbances of motivation of mood, impaired concentration and cognition, disturbances of motivation of mood, difficulty in establishing and maintaining effective work relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, grossly inappropriate behavior, and significant difficulty accepting supervision or receiving instructions. However disabling, such symptoms are contemplated by a 70 percent rating and do not, without further evidence, prevent him from securing and maintaining employment. The Board is also cognizant of reports that the Veteran’s psychiatric symptoms are debilitating and inconsistent with any effort to pursue gainful employment and that he cannot or is unable to pursue gainful or “suitable” employment due to the impact of PTSD. However, the symptoms outlined within such reports describe difficulty, not inability, obtaining and securing any employment. While his service-connected disabilities have caused vocational impairment, he retains some functional abilities as it relates to managing his PTSD, has obtained an Associate degree in the Arts and completed a training program, and has not been deemed incapable of securing and maintaining any employment consistent with his background due to service-connected disabilities alone. Although the Board recognizes that the Veteran’s PTSD causes much difficulty and many challenges in maintaining employment, the evidence does not show that he is precluded from all employment by reason of service-connected disabilities. In sum, the Board finds that the Veteran’s service-connected disabilities are not productive of total unemployability. While the Board does not doubt that the Veteran’s service-connected disabilities had some effect on his employability, the evidence of record weighs against the contention that his service-connected disabilities alone are of such severity so as to preclude his participation in any form of substantially gainful employment. To the extent that his service-connected disabilities impact employment, the assigned schedular rating compensates the Veteran for such impairment. Based upon the overall record, the Board finds that throughout the appellate period, the preponderance of the evidence weighs against finding that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. Thus, the Board finds that the evidence of record does not indicate that TDIU is warranted and the claim must be denied. 38 C.F.R. § 3.321; 3.40; 4.15; 4.16; 4.18; 4.19. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, 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. § 20.130