Citation Nr: 21003937 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-58 765 DATE: January 25, 2021 ORDER An initial rating in excess of 70 percent for the Veteran’s service-connected mental health disability is denied. For the period since February 21, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s mental health disability manifests as symptoms resulting in total occupational and social impairment. 2. Since February 21, 2015, the Veteran’s service-connected mental health disability is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for the Veteran’s service-connected mental health disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4,10, 4.126, 4.130, Diagnostic Code 9434-9411. 2. Since February 21, 2015, the criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to September 1969. These matters come before the Board of Veterans’ Appeals (Board) from an October 2010 rating decision (notice provided in November 2010). In August 2019, the Board remanded these matters for additional development. As noted in the Board’s August 2019 remand, the Veteran testified at a Board hearing in August 2019 before the undersigned Veterans Law Judge (VLJ). Unfortunately, due to a technical problem, the Board was unable to successfully produce an audio recording of the hearing. Therefore, a hearing transcript will not be available. The Board regrets and apologizes for this situation. Nevertheless, the Board finds that it has enough information to go forward with the Veteran’s case. In this regard, it should be noted that the undersigned VLJ, who presided over the hearing, took contemporaneous notes of the Veteran’s hearing testimony. 1. Entitlement to an initial rating in excess of 70 percent for the Veteran’s service-connected mental health disability. The October 2010 rating decision granted service connection for a mental health disability, characterized as posttraumatic stress disorder (PTSD) and major depressive disorder, rated as 50 percent disabling. The Veteran is appealing the assigned rating. His mental health disability is currently rated as 70 percent disabling for the entire appeal period (since April 20, 2010). He seeks the maximum rating of 100 percent. He also seeks entitlement to a TDIU. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. 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; or memory loss for names of close relatives, own occupation or own name. For the reasons explained below, the Board concludes that the Veteran’s symptoms have not caused the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. As noted above, for the Veteran to be entitled to the maximum rating of 100 percent under the General Formula, the evidence must show symptoms resulting in total occupational and social impairment. The Board finds that the weight of the evidence is against such a finding. Regarding occupational impairment, the evidence of record establishes that Veteran’s mental health disability has impacted his ability to work. This impact, however, has not been total. Rather, the evidence indicates that the Veteran had a full-time law practice until February 21, 2015, and, thereafter and up until 2017, worked part-time (25 hours) as a legal researcher. 12/31/2019, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The evidence does show that the Veteran has experienced occupational impairment throughout the appeal period. For instance, at an October 2010 VA examination, reported having lost 80 percent of his business as an attorney due to his mental health disability, specifically his severe sleep difficulties, problems with concentration, low energy, and motivation. The Board acknowledges the occupational impairment experienced by the Veteran but finds that, for most of the appeal period, such impairment was not total, as evidenced by the fact that he was able to work full-time until February 2015 and then part-time until 2017. The Veteran’s occupational impairment will further addressed in the TDIU section below. Regarding social impairment, the evidence establishes that the Veteran experiences significant impairment. The evidence, however, is against a finding that such impairment is total. Rather, the evidence establishes that the Veteran has long been married to his third wife, with whom he has two live-in daughters. Statements submitted by the Veteran’s spouse and one of his daughter document the toll that the Veteran’s mental health disability has had in his family, to include periods during which his spouse and his daughters have needed to separate themselves from the Veteran over short periods of time. These statements document a significant level of social impairment but, in the Board’s estimation, fail to reach the level of total social impairment. In this regard, the Board notes that the Veteran’s marriage has been able to survive the strain placed on it by the Veteran’s mental health disability. Additionally, the Board notes that, while the Veteran lives a mostly self-isolated life, he has reported having two friends, also veterans, who, with their wives, visit him on a monthly basis. 11/14/2019, C&P Exam. The Board finds that when the relevant evidence is viewed in totality, the preponderance of the competent evidence weighs against a finding of total social impairment. In the absence of evidence of total occupational and social impairment, the Board concludes that the criteria for the maximum rating of 100 percent have not been met. See 38 C.F.R. § 4.126. Rather, the evidence establishes that the Veteran’s mental health disability manifests as symptoms that more closely approximate the criteria for the current rating of 70 percent. This finding is consistent with the two most recent VA examinations (October 2017 and November 2019), which describe the Veteran’s overall impairment in language that mirrors the criteria for a rating of 70 percent. For these reasons, a rating higher than 70 percent for the Veteran’s mental health disability is denied. 2. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. 12/31/2019, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. He raised this issue as early as July 2016. 07/20/2016, VA 21-526EZ, Fully Developed Claim. A total disability rating 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 due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran meets the percentage threshold for schedular TDIU consideration based on his rating of 70 percent for PTSD. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). As mentioned above, up until February 21, 2015, the Veteran had a full-time law practice. At an October 2010 VA examination, he stated that he practiced law for over 20 years. His reported work history indicates that, after February 21, 2015, and up until 2017, he worked part-time (25 hours) as a legal researcher, earning a little over $1,000 per month. 12/31/2019, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran has stated that, around 2010, he began to experience occupational impairment. 02/14/2020, VA 21-4138 Statement in Support of Claim. At the October 2010 VA examination, he reported having lost 20 weeks of work in the last year and 80 percent of his business due to loss of sleep and concentration problems. The examiner described that Veteran’s occupational impairment as decreased concentration, increased absenteeism, memory loss, and poor social interaction. More recently, in his formal TDIU application, the Veteran described his occupational impairment as an inability to concentrate or complete tasks, an inability to remember names, dates or appointments, panic attacks, and severe sleep impairment due to nightmares. 12/31/2019, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Resolving doubt in favor of the Veteran, the Board finds that, since February 21, 2015, the Veteran meets the criteria for a TDIU. More specifically, the Board finds that, since that date, the Veteran’s mental health disability is at least as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Significantly, the evidence establishes that the Veteran’s mental health disability manifests as depressed mood, anxiety, chronic sleep impairment, memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. These symptoms from his service-connected mental health disorder significantly limit the Veteran’s ability to obtain and retain substantially gainful employment as an attorney or legal researcher, or any other similar occupation. To the extent that the Veteran could plausibly do other type work, the Board reiterates that the Veteran worked over 20 years as an attorney, and there is no indication that he has the training or experience to secure substantial employment in a different field. Finally, the Board finds that the part-time work performed by the Veteran after February 21, 2015, was not substantial in terms of income, and such is considered to have been marginal employment. For these reasons, the Board finds that a TDIU is warranted for the period since February 21, 2015. As discussed above, the Veteran has indicated that, on that date, he last worked full-time and became too disabled to work. This implies that, prior to February 21, 2015, the Veteran was employed full-time. Since the Veteran was employed full-time prior to February 21, 2015, a TDIU is not for consideration as the Veteran has substantially gainful employment. The Board acknowledges the Veteran’s report that he experienced a significant reduction of his business starting in 2010. While this fact is indicative that the Veteran was experiencing occupational impairment due to his mental health disability, the reduction of the Veteran’s business, in and of itself, is not enough to establish entitlement to a TDIU. Rather, the determinant factor is whether the Veteran was able to engage in substantial employment. In this case, the Veteran has admitted that he was able to work full-time until February 21, 2015. Accordingly, this fact is not at issue. Additionally, the Veteran’s 70 percent combined evaluation from April 2010 compensates him for average impairment in earning capacity. 38 C.F.R. § 4.1 (2020). (CONTINUED ON THE NEXT PAGE)   In summary, the Board finds that the Veteran meets the criteria for an award of TDIU, but only for the period since February 21, 2015. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López 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.