Citation Nr: 21003761 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-31 641 DATE: January 22, 2021 ORDER An initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 1, 2019, is denied. FINDINGS OF FACT 1. The Veteran’s PTSD disability does not result in or approximate symptoms indicative of total occupational and social impairment. 2. For the appeal period prior to January 1, 2019, the Veteran was able to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 2. The criteria for a TDIU for the appeal period prior to January 1, 2019, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1968 to September 1970. This matter comes to the Board of Veterans’ Appeals (Board) from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified regarding this matter at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In October 2019, the Board granted an initial 70 percent rating for PTSD and remanded for further development the issue of entitlement to a rating higher than 70 percent as well as entitlement to a TDIU. In a December 2019 rating decision, the RO implemented the Board’s increase to 70 percent for PTSD, effective December 2010. In a July 2020 rating decision, the RO granted entitlement to a TDIU effective January 1, 2019; as such, the Board will consider whether a TDIU is warranted for the rating period prior to January 1, 2019. Rating for PTSD Disability—Laws and Analysis 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. If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is in receipt of a 70 percent disability rating for PTSD under Diagnostic Code 9411 for the entire initial rating period on appeal. A 70 percent disability 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 that is 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran’s own occupation or name. Id. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). The Board finds that, for the entire rating period on appeal, the Veteran’s PTSD does not more nearly approximate a 100 percent disability evaluation. Despite the Veteran’s serious symptoms, the Board finds that his symptoms were not so severe or frequent so as to result in total social and occupational impairment. The Veteran was afforded VA examinations in June 2011, April 2016, and July 2020. During these evaluations, the Veteran reported working as a real estate agent and as a home appraiser, albeit periodically part-time during the rating period. See e. g., July 2020 VA examination report (noting that the Veteran worked for “many years” as a realtor and was now working as a home appraiser evaluating 3-5 homes per week); see also April 2016 VA examination (indicating that the Veteran continued to work part-time as a real estate broker). Further, during the appeal period, the Veteran was able to maintain relationships with a few friends and some of his family members, to include his son and grandchildren. See April 2016 and July 2020 VA examination reports. There is also no probative evidence of record demonstrating that the PTSD was productive of gross impairment in thought processes or communication; any 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; and memory loss for names of close relatives, or for the veteran’s own occupation or name. The Board finds that the Veteran’s employment affirmatively opposes the notion of total occupational impairment. Specifically, the Veteran’s current employment (albeit part-time) most likely requires him to follow instructions, perform occupational duties, and occasionally interact with his co-workers or employers. The evidence also shows that he has been able to maintain some familiar relationships as evidenced by his interactions with his son and grandchildren. This evidence weighs against the notion of total social and occupational impairment. Based on the evidence, the Board finds that the preponderance of the evidence is against total social occupational impairment. There is no doubt to be resolved; and a rating in excess of 70 percent is not warranted. TDIU Prior to January 1, 2019—Laws and Analysis As noted above, the Veteran has already been awarded entitlement to a TDIU for the appeal period prior to January 1, 2019. Nonetheless, because a TDIU was not awarded for the entire appeal period, the claim remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). A total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more)). 38 C.F.R. § 4.16 (a). The Veteran in this case meets the threshold rating requirements necessary to consider entitlement to a TDIU for the rating period on appeal. In his February 2020 formal claim for a TDIU, the Veteran indicated that he last worked full time in September 1970 and became too disabled to work in December 2010. In a June 2020 statement, the Veteran indicated that he had earned ($61,210 in 2015), ($66,484 in 2016), ($28,340 in 2017), ($38,375 in 2018), and ($11,150 in 2019). In his formal TDIU application, the Veteran also indicated that in 2006 (prior to the appeal period) he had earned $28, 299. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17 (a). According to the U.S. Department of Commerce, Bureau of the Census, the poverty threshold in 2015, 2016, 2017, and 2018 were $11,367, $11,511, $11,756, and $12,043, respectively. (Continued on the next page)   While the majority of the Veteran’s work schedule from 2015 to 2018 would not constitute full-time employment, this in and of itself is not indicative of unemployability. As described, substantially gainful employment involves doing significant productive physical or mental duties for profit that exceeds the annual poverty threshold. Here, the Veteran has reported earning over $20,000 annually since 2015. The remaining evidence of record does not show that the Veteran earned below the poverty threshold for the appeal period prior to 2015. See e. g., February 2020 TDIU application (noting that in 2006, the Veteran had earned $28, 299). Therefore, overall, the evidence demonstrates that he has earned more than the poverty threshold for the appeal period prior to January 1, 2019. Accordingly, the Board finds that the Veteran’s employment has been substantially gainful. For these reasons, entitlement to a TDIU prior to January 1, 2019, is denied. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.