Citation Nr: 21003777 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-45 852 DATE: January 22, 2021 ORDER Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD) prior to August 9, 2017 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 9, 2017 is denied. Entitlement to a 100 percent disability rating for PTSD from August 9, 2017 is granted. FINDINGS OF FACT 1. A preponderance of the evidence indicates that PTSD did not cause deficiencies in most areas of the Veteran’s life prior to August 9, 2017. 2. A preponderance of the evidence indicates that service-connected disability did not render the Veteran unable to secure and follow a substantially gainful occupation prior to August 9, 2017. 3. A preponderance of the evidence is not against the assertion that, since August 9, 2017, PTSD has caused total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 50 percent for PTSD prior to August 9, 2017 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130. 2. The criteria for a TDIU prior to August 9, 2017 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 3. The criteria for a 100 percent disability rating for PTSD since August 9, 2017 are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2005 to May 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the Board in a hearing convened at the RO. A transcript of the hearing has been included in the electronic claims file and has been reviewed. The Board denied the claims on appeal in a March 2019 decision, which the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In February 2020, pursuant to a joint motion for partial remand (JMPR) filed by the parties to this matter, the Court vacated the Board’s decision and remanded the case. In response, in September 2020, the Board remanded the case to the RO for additional development. The case is again before the Board for appellate review. Increased Rating On December 9, 2014, the Veteran filed an original claim of entitlement to service connection for PTSD. In the March 2015 rating decision on appeal, the RO granted the claim and assigned a 50 percent initial rating effective the date of claim. The Veteran appealed the assigned initial rating. During the appeal period the RO has granted higher ratings – 70 percent from August 9, 2017, 100 percent between February and March 2018, 70 percent from March 1, 2018, and 100 percent since November 13, 2020. Further, the RO assigned a TDIU effective August 9, 2017. Laws and regulations Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When 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. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). An extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). In such case, the Board refers the claim to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). A TDIU claim is “part and parcel” of an underlying increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran’s history, education, skill, and training; and whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Rating criteria for psychiatric disabilities such as PTSD are detailed under the General Rating Formula for Mental Disorders of 38 C.F.R. § 4.130. Thereunder, ratings of 0, 10, 30, 50, 70, and 100 percent are authorized for various levels of disability. PTSD is rated under DC 9411 of 38 C.F.R. § 4.130. Inasmuch as the Veteran’s PTSD has been rated as at least 50 percent disabling from the date of the initial claim on December 9, 2014, the Board will address whether the higher ratings of 70 or 100 percent have been warranted since then. 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); 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; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130. 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). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Symptomatology attributed to a nonservice-connected disability cannot be differentiated from symptomatology attributed to a service-connected disability unless medical evidence does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In the absence of such medical evidence, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evidence and analysis The evidence in this matter consists of lay assertions from the Veteran and his wife, VA and private treatment records, and VA compensation examination reports dated in March and July 2015, September and November 2017, and November 2020. This evidence indicates that a rating higher than 50 percent was not warranted prior to August 9, 2017, but that a 100 percent rating has been warranted since then. Prior to August 9, 2017: The evidence prior to August 9, 2017 indicates that while PTSD reduced reliability and productivity, the disorder did not cause deficiencies in most areas of the Veteran’s life and did not render him unemployable. The March and July 2015 VA examiners indicated mild to moderate PTSD impairment. The March 2015 VA report notes occasional impairment from PTSD while the July 2015 report notes occupational and social impairment due to mild or transient PTSD symptoms. The examiners indicated that the Veteran had been in relationships with girlfriends, with one having just ended prior to the March 2015 examination and one having just begun prior to the July 2015 examination, which resulted in marriage. Each report indicates, moreover, that the Veteran had a few close friendships. The reports noted recurrent distressing memories, dreams, flashbacks, avoidance of distressing memories, thoughts, etc., peristent negative thoughts about service in Iraq, markedly diminished interest in activities, hypervigilance, exaggerated startle response, and sleep disturbance. The reports also describe the Veteran as sad, unhappy, stressed, depressed, anxious, irritable, suspicious, with significant emotional distress, panic attacks weekly or less often, a flattened affect, and difficulty in establishing and maintaining effective work and social relationships. The Board notes that evidence dated prior to the date of claim indicates more severe symptoms. The March and July 2015 reports note a suicide attempt in September 2014. Private medical evidence documents that the Veteran was treated for an overdose of prescription medication in September 2014. The VA reports indicate that the Veteran felt despondent after the failure of a business he began earlier in 2014. The reports also indicate that, as the result of the failed business, he had to return home and live with his mother. Moreover, the July 2015 report notes a checked box indicating obsessional rituals. Based on this evidence, the Board considered assigning a 70 percent rating under 38 C.F.R. § 4.130. Such an increase is unwarranted, however, because the preponderance of the evidence indicates an absence of suicidal ideation during the relevant time period, and an absence of obsessional rituals. Each VA report indicates an absence of suicidal ideation as do the several VA treatment records addressing PTSD during this time period. Moreover, the reports and treatment records indicate that the Veteran was fully oriented, alert, polite, cooperative, logical, goal oriented, coherent, with normal speech, fair insight and judgment, without delusions or hallucinations or a major thought disturbance, and as having adequate hygiene and being groomed with appropriate dressing. The treatment records dated between December 2014 and August 2017 indicate consistent complaints of anxiety and sleep disturbances, but continue to note the Veteran as fully oriented, cooperative, alert, cognitively sound, with normal speech and thought process, and without any delusional thinking or suicidal ideations. Further, several of the records dated during this time period contain negative screens for depression. Importantly, these findings noted over a nearly three-year period preponderate against the checked box in the July 2015 report indicating obsessional rituals. Indeed, the July 2015 VA examiner’s own findings of mild and transient PTSD impairment have more evidentiary weight that the single, isolated checked box. In sum, the evidence dated between December 9, 2014 and August 9, 2017 indicates significant PTSD impairment causing anxiety and sleep problems. But the totality of the evidence dated during this period is against the assignment of a rating higher than 50 percent during this period. Indeed, the preponderance of the evidence is against the assignment of the next-highest rating of 70 percent during the relevant portion of the appeal period. A preponderance of the evidence indicates an absence of suicidal ideation notwithstanding the attempt in September 2014. The evidence does not indicate “obsessional rituals” notwithstanding the fact that the July 2015 VA report contains a box checked for such. The evidence has shown consistently that the Veteran’s speech has been logical, clear, and relevant. The Veteran consistently reported panic attacks weekly or less, but the evidence has not indicated “near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively” during the relevant time period. The evidence shows irritability and anger, but not an impaired impulse control leading to periods of violence. And the VA medical professionals who engaged the Veteran during this period described him as fully oriented, adequately attired, and groomed. As such, the preponderance of the evidence is against the assignment of a higher initial rating for PTSD between December 9, 2014 and August 9, 2017. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a higher initial rating during this time period must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. TDIU prior to August 9, 2017: Between December 9, 2014 and August 9, 2017, the threshold requirement for the assignment of a schedular TDIU was not met. See 38 C.F.R. § 4.16 (a). During this time period the Veteran was service connected for PTSD as 50 percent disabling and a scar as 10 percent disabling. As such, the sole means to a TDIU during this period is through an extraschedular evaluation. See 38 C.F.R. § 4.16(b). As noted earlier, the evidence dated during this period demonstrates that PTSD did not disable the Veteran from securing and following a substantially gainful occupation. The evidence also indicates that painful scar tissue on the back did not disable the Veteran from employment. Indeed, nothing in the evidence indicates that the Veteran had service-connected disability that prevented him from engaging in physical labor. He did not have service-connected inability to use his upper or lower body, his hands or his arms. He did not have service-connected inability to hear or speak. He did not then have service-connected cognitive or psychiatric disability that would have precluded him from managing the mental and psychiatric demands of a job. See Ray, supra. Indeed, the evidence shows that the Veteran worked as a salesman and had recently worked in his own company. The record shows that the company failed just prior to the December 2014 claim, and that the failure led to emotional distress and financial hardship. Nevertheless, the Veteran demonstrated an ability to not only work, but also to start his own company. So, his employment history tends to indicate an ability to work with his mind and body. In short, the absence of evidence of service-connected disability affecting the mind and body, combined with demonstrated capacity and abilities, tend to show an ability to secure and follow a substantially gainful occupation prior to August 9, 2017. See Withers v. Wilkie, 30 Vet. App. 139 (2018). The record is unclear regarding whether the Veteran worked at any time between December 2014 and August 2017. Nevertheless, the sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to substantiate a TDIU claim. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the evidence shows that the Veteran was able during the relevant time period to perform the acts required by employment. This is despite the difficulty he had in his career, and despite the problems caused by his PTSD. In sum, his service-connected disability did not preclude him from securing and following substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply and the claim to an earlier effective date for the assignment of a TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Since August 9, 2017 A TDIU has been in effect since August 9, 2017. Further, PTSD has been rated as either 70 or 100 percent disabling since then. The RO assigned a 70 percent rating from August 9, 2017, a temporary total (100 percent) rating related to hospital treatment for PTSD between February 1, and March 1, 2018, a 70 percent rating from March 1, 2018, and a 100 percent rating since November 13, 2020. The question before the Board therefore is whether the 100 percent rating should apply since August 9, 2017. The Board finds that it should. The September 2017, November 2017, and November 2020 VA reports, along with VA treatment records dated after August 2017, indicate substantial impairment. The September and November 2017 examiners found deficiencies in most areas of life, while the November 2020 examiner found total impairment. The reports indicate impaired impulse control, impaired judgment and memory, obsessional rituals, consistent suicidal ideation, disorientation to time and place, near-continuous panic, anger to the point of “rage” and neglected personal appearance and care. The reports indicate, moreover, total social isolation. The reports indicate that PTSD symptoms had progressed and that the increased anxiety now disabled the Veteran from employment, and that the panic reactions have impaired the ability to engage others outside the home. Further, the evidence indicates that the Veteran had been hospitalized for PTSD in 2018, and attempted suicide 2018. Based on the foregoing evidence, an increased rating is warranted here since August 9, 2017. Since then, a 100 percent rating should be assigned for PTSD. See 38 C.F.R. § 4.130. Inasmuch as a 100 percent rating has been assigned, the Board has considered whether special monthly compensation should be assigned. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Special monthly compensation (SMC) is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of service-connected disability. Basic levels of SMC are listed at 38 U.S.C. § 1114 (k). Higher levels of SMC are provided at 38 U.S.C. § 1114 (l), (m), (n), and (o). SMC may apply in cases where a 100 percent rating has been assigned. In such cases, SMC may be assigned where there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. Otherwise, SMC may be assigned where service-connected disability causes a Veteran to be permanently housebound, in need of regular aid and attendance of another individual or has resulted in the loss of use of a creative organ, limb, blindness, aphonia, or deafness. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. With regard to being housebound, this requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. The facts of this case would not support the assignment of SMC. The evidence demonstrates that the Veteran is mobile, leaves his house to run chores and attend VA medical appointments, is capable of performing activities of daily living notwithstanding his neglect of personal care, is not blind, deaf, or unable to speak, and has not lost the use of a limb. Further, besides PTSD, he has not been rated 60 percent disabled for another disability. He is service connected for a scar rated as 10 percent disabling, for tinnitus rated as 10 percent disabling, and for hearing loss rated as 0 percent disabling. As such, the schedular requirement for the assignment of SMC under 38 U.S.C. § 1114 is not met here. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.