Citation Nr: 21003920 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 19-25 313 DATE: January 25, 2021 ORDER An initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Symptoms attributed to the Veteran’s service-connected PTSD have not resulted in total occupational and social impairment. 2. The probative evidence of record is at least in equipoise as to whether the Veteran’s service-connected disabilities alone render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 2. The criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1951 to December 1952. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2020, at which time the Board denied a rating in excess of 70 percent for PTSD and entitlement to TDIU. In March 2020, the Veteran’s attorney filed a motion to vacate the Board’s February 2020 decision because he asserted that he faxed a request for an extension, which had not been uploaded into the Veteran’s electronic claims file prior to the Board’s issuance of a decision. In August 2020, the Board vacated its February 2020 decision. After the Veteran’s attorney submitted additional evidence and argument, the claim is now ready for further appellate action. The Board notes that after a statement of the case (SOC) was issued in July 2019, additional VA treatment records and a VA knee examination report were associated with claims file, and service connection was granted for a left knee disability in June 2020. In a December 2020 correspondence, the Veteran’s attorney indicated that the Veteran waived his right to have any additional evidence reviewed by the RO in the first instance. Accordingly, a remand for RO consideration of this evidence in the first instance is not necessary. See 38 C.F.R. § 20.1304(c) (2018). Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to an initial rating higher than 70 percent for PTSD Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), 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 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, or 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 the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s PTSD and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. Upon review of the record, the Board finds that a rating in excess of 70 percent is not warranted at any time during the period under review. As an initial matter, the Board notes that the Veteran has a diagnosis of major vascular neurocognitive disorder (dementia) with behavioral disturbance secondary to neurovascular disease / cerebrovascular accidents (CVAs), which has not been service connected. When a Veteran has both service-connected and nonservice-connected disabilities, VA will attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). A May 2009 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed by the Veteran’s private physician indicates that the Veteran’s nonservice-connected dementia and atherosclerotic cerebrovascular disease, status post multiple CVAs, have resulted in memory and functional impairment associated and diminished cognitive ability. VA treatment records from 2010 show treatment for dementia, memory loss, and CVA. The Veteran’s wife reported that the Veteran was no longer able to make decisions for himself due to his dementia. A July 2012 VA treatment record shows that the Veteran was assessed to have dementia with behavioral disturbances and possibly some delayed-onset PTSD. An August 2012 VA treatment record shows that the Veteran’s wife reported that the Veteran talked about his memories from serving in Germany and fought in his sleep. In a June 2011 rating decision, the Veteran was deemed incompetent to handle the disbursement of VA funds, and his wife was designated as his payee. A May 2013 disability benefits questionnaire (DBQ) completed by the Veteran’s private physician indicates that the Veteran had diagnoses of PTSD, CVA, coronary artery disease, and diabetes mellitus. The physician initially indicated that it was possible to differentiate which symptoms were attributable to each diagnosis and stated that the Veteran’s CVA resulted in mild dementia. The physician later indicated that while the Veran did not have a diagnosis of a traumatic brain injury, he had a head injury in service, and it was not possible to differentiate which symptoms were attributable to each diagnosis. The physician then characterized the Veterans level of occupational and social impairment as “total occupational and social impairment,” and indicated that it was not possible to differentiate what portion of impairment was caused by each mental disorder, but also stated that the Veteran’s mild dementia was due to his CVA. A July 2013 VA mental health treatment record shows that the Veteran’s wife indicated that the Veteran talked about in-service incidents on a ship frequently, and she asked about signs and symptoms of PTSD. The treatment provider noted that it was unclear if the Veteran’s avoidance symptoms and irritability were related to PTSD or an organic origin, such as the stroke he suffered four years earlier. The Veteran underwent a VA examination in September 2016, at which time the examiner diagnosed him with PTSD and major vascular neurocognitive disorder (dementia) with behavior disturbance caused by neurovascular disease / CVA. The examiner indicated that it was possible to differentiate which symptoms were attributable to each diagnosis. He stated that the Veteran’s service-connected PTSD resulted in intrusive thoughts, nightmares about an in-service ship accident, sleep disturbance, and avoidance of marine settings, ships, and discussion of the event. He stated that the Veteran’s nonservice-connected major neurocognitive disorder resulted in moderately severe memory problems, confabulation, confusion, disorientation to time and place, speech and language problems, and poor insight, judgment, and decisional capacity. The examiner indicated that both disabilities resulted in irritability, anger outbursts, and difficulties with impulse control. He characterized the level of occupational and social impairment caused by all of the Veteran’s mental diagnoses as “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood.” However, he stated that “by far the majority of the Veteran’s current functional impairment is the consequence of his major neurocognitive disorder and NOT his PTSD.” In support of this, he explained that “while the Veteran may have been experiencing problems in his family and interpersonal relationships as a consequence of PTSD symptoms prior to his CVA, there is no evidence that these symptoms had an impact on his occupational functioning or that they reached the DSM-5 criteria for a disorder until after his CVA.” He further indicated that the Veteran’s PTSD had a relatively mild impact on his social functioning and sleep compared to the major disabling impact of his neurocognitive disorder. The examiner explained that his opinions were based on a review of the Veteran’s treatment records, a letter from the Veteran’s daughter, and an interview with the Veteran’s wife, as the Veteran was confused about the purpose of the examination, could not detail the reasoning for his PTSD claim, and denied having any mental disorder. The examiner indicated that VA treatment records dated prior to the CVA showed that PTSD screens suggested some symptoms of anxiety and PTSD, but there was no further workup done because the Veteran’s scores fell below the cutoff for a diagnosis. The Veteran later experienced neurovascular insufficiency culminating in a CVA in 2009, resulting in left temporal-parietal damage and significant periventricular disease. Following this event, the Veteran began taking psychotropic medications, including Risperidone and Ativan to deal with agitation, psychosis, and anxiety. In 2012, the Veteran’s primary care provider continued to prescribe psychotropic medications, including hydralazine, lorazepam, and trazadone for “nightmares and agitation secondary to dementia.” He began mental health treatment in 2012, at which time he was diagnosed with moderate neurocognitive disorder and rule out PTSD. The examiner indicated that the Veteran’s wife and daughter reported witnessing symptoms of anger, irritability, and nightmares prior to the CVA. The Veteran’s wife also stated that the Veteran maintained adequate employment prior to suffering a stroke, and she denied any knowledge of the Veteran having behavioral problems at work or disciplinary actions taken against him. However, after the CVA, the Veteran’s functioning declined significantly, and he was no longer able to work in any capacity. Indeed, the examiner indicated that the Veteran’s treatment records showed no evidence of any concerns about the Veteran’s behavior until after the CVA. A review of the Veteran’s treatment records does not show symptoms attributed to the Veteran’s PTSD which are more severe than those noted during the VA examination. Based on the foregoing, the Board finds that it is possible to differentiate which mental health symptoms are attributable to the Veteran’s service-connected PTSD and which are attributable to his nonservice-connected dementia and atherosclerotic cerebrovascular disease, status post multiple CVAs. Although the private physician who completed the May 2013 DBQ suggested that such was not possible, the Board assigns little probative value to that opinion, as it is not supported by a rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported with an analysis). Conversely, the Board finds the opinion of the September 2016 VA examiner to be highly probative and persuasive, as it is supported by a reasoned explanation based on a review of the Veteran’s medical records before and after the CVA and statements from the Veteran’s wife and daughter. See Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008) (noting that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion”). Moreover, the private physician who completed the May 2013 DBQ ultimately indicated that the Veteran’s dementia was due to the CVA, which is consistent with the opinion of the VA examiner. In summary, the probative evidence of record shows that the Veteran’s service-connected PTSD has been manifested by symptoms of intrusive thoughts, nightmares, sleep disturbance, irritability, anger, difficulties with impulse control, and avoidance of marine settings, ships, and discussion of his claimed in-service stressors. The Veteran’s PTSD symptoms have had a mild impact on his social functioning in the form of problems with family and interpersonal relationships. As the probative evidence of record does not show that the symptoms attributed to the Veteran’s service-connected PTSD have resulted in total occupational and social impairment, a rating in excess of 70 percent for PTSD is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 2. Entitlement to TDIU Throughout the period under review, service connection has been in effect for PTSD, rated as 70 percent disabling; left knee osteoarthritis, rated as 10 percent disabling prior to November 27, 2020, and 30 percent disabling thereafter; and right knee osteoarthritis, rated as 10 percent disabling. The Veteran’s combined disability rating is 80 percent. Therefore, he meets the schedular criteria for TDIU. The record shows that the highest level of education attained by the Veteran is a high school diploma. During service, he worked as an auto mechanic and a truck driver. After service, the Veteran spent most of his career working as a mechanic, but he also held jobs selling cars and delivering court documents for a judge. On a November 2003 application for nonservice-connected pension, the Veteran indicated that his advanced age was the disability that prevented him from working. An April 2006 letter from the Veteran’s private physician indicates that the Veteran suffered a subendocardial and myocardial infarction about a month earlier, and he was totally and permanently disabled due to cardiac disease. A May 2009 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed by the Veteran’s private physician indicates that the Veteran atherosclerotic cerebrovascular disease, status post multiple CVAs, and dementia caused diminished cognitive ability, resulting in memory and functional impairment. It was noted that the Veteran could not leave the house without assistance and supervision. A June 2009 application for nonservice-connected pension indicates that the disabilities that prevented the Veteran from working were progressive cognitive decline, athersclerotic cerebrovascular disease, and dementia. In February 2011, the Veteran was awarded nonservice-connected pension due to dementia, gout, coronary artery disease, and hypertension. As found above, the Veteran’s service-connected PTSD has been manifested by symptoms of intrusive thoughts, nightmares, sleep disturbance, irritability, anger, difficulties with impulse control, and avoidance of marine settings, ships, and discussion of his claimed in-service stressors. The Veteran’s PTSD symptoms have had a mild impact on his social functioning in the form of problems with family and interpersonal relationships. In October 2020, the Veteran’s attorney submitted a series of interrogatories, which were answered by a private vocational consultant who reviewed the evidence of record. The vocational consultant opined that it was at least as likely as not that the Veteran’s PTSD alone rendered him unable to maintain gainful employment. In support of this, the vocational consultant explained, in relevant part, that according to the August 2016 VA examination report, the Veteran had “problems in his family and interpersonal relationships with anxiety, marked diminished interest in participation of significant activities, and irritable behavior and outbursts, with little or no provocation expressed as verbal or physical aggression, with clinically significant depression or impairment in social and occupational areas of functioning.” The vocational expert concluded that these symptoms, “in and of themselves would be sufficient to preclude sustained employment in any level of skill or exertion.” However, the Board assigns little probative value to this opinion, as the vocational consultant did not discuss the Veteran’s nonservice-connected dementia and behavioral disturbance secondary to multiple CVAs, or the fact that the August 2016 VA examiner stated that “by far the majority of the Veteran’s current functional impairment is the consequence of his major neurocognitive disorder and NOT his PTSD.” The private vocational consultant also cited to the opinion in the May 2013 DBQ that it was not possible to distinguish which symptoms are attributable to the Veteran’s PTSD versus a brain injury, and therefore concluded that it was at least as likely as not that the Veteran’s total social and occupational impairment should be attributed to his PTSD. However, as noted above, the Board has already found that conclusion in the May 2013 DBQ lacks probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). With respect to the Veteran’s service-connected knee disabilities, the record shows that during an August 2011 VA examination, he reported constant bilateral knee pain and swelling, as well as locking and instability in the left knee. He also reported flare ups of increased knee pain occurring every other day, which lasted several hours and required him to be off his feet completely. It was noted that the Veteran used a wheelchair and a cane for his knee problems, and his wife had to help him bathe and dress him due to his bilateral knee pain. During a February 2018 VA examination, the Veteran reported bilateral knee pain with motion and weight bearing, and the examiner observed functional impairment in the form of instability, weakness, lack of endurance, disturbance of locomotion, incoordination, and interference with standing. It was noted that the Veteran’s left knee disability rendered him unable to stand or walk for any length or distance. The examiner indicated that notwithstanding the Veteran’s advanced age, he had an unsteady gait and balance problems, which required the use of a cane for stability. The Veteran underwent another VA examination in November 2020, and the examiner opined that the Veteran’s service-connected knee disabilities would cause difficulty performing occupational tasks that required standing, sitting, and walking, and would prevent him from using stairs, kneeling, squatting, or making sudden movements with either knee. Given the Veteran’s education and experience working jobs that require prolonged standing, walking, and likely kneeling and squatting, the Board finds that the evidence is at least in equipoise as to whether the combined effects of the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. After resolving reasonable doubt in favor of the Veteran, TDIU is granted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.