Citation Nr: 21004978 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-34 136 DATE: January 28, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for service-connected post-traumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the entire appeal, the Veteran’s PTSD was not shown to be productive of a disability picture that more nearly approximates total occupational and social impairment. 2. The Veteran’s service-connected disabilities render him unable to obtain or maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1969. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter was previously before the Board in January 2019, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a July 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the January 2019 Board remand. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Entitlement to a disability rating in excess of 70 percent for service-connected PTSD The Veteran’s PTSD is rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)). The General Formula provides a 70 percent rating is warranted when there is 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 PTSD 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 when the evidence shows 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; memory loss for names of close relatives, own occupation, or own name. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Following the January 2019 Board remand, the Veteran was afforded a VA mental health examination in December 2019. The examiner saw the Veteran in person, reviewed his file, and noted the Veteran’s relevant history. The examiner made the following behavioral observations of the Veteran: presented on time for the evaluation and was dressed with no signs of personal neglect; displayed typical eye contact and motor movements, speech was a normal rate and volume and tone; his mood was irritated; affect was flat; insight and judgment appeared fair; immediate recall was intact but delayed recall was impaired. The examiner noted that the Veteran does forget names, directions, or recent events. Nevertheless, the examiner found the Veteran to be capable of managing his own funds. The examiner opined the Veteran’s PTSD led to occupational and social impairment with deficiencies in most areas. The examiner noted the Veteran’s symptoms included depressed mood, anxiety, panic attacks more than once per week, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. The Veteran has been receiving consistent mental health treatment for his disorders. A review of available treatment records shows that while the Veteran consistently reported multiple symptoms, such as irritability, sleep disturbances and avoidance of crowds, there has been no indication of gross impairment in thought processes or communication, persistent delusions or hallucinations, persistent danger to hurting himself or others, difficulties with activities of daily living, memory loss or disorientation to time or place. The Board acknowledges and has considered the statements from the Veteran. In fact, it is these statements that provide the basis, in part, for the evaluations, which indicate a serious mental condition that will clearly cause the Veteran many problems. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While it is clear from the Veteran’s record he struggles a great deal with his mental health, the evidence does not show his symptoms approximate those such as gross impairment in thought processes, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or memory loss for names of close relatives or his own name. Entitlement to a total disability rating based on individual unemployability (TDIU) Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16 (a). Here, the Veteran is currently service connected for the following: • PTSD, rated as 70 percent disabling from August 4, 2010; • Hypertensive heart disease, rated as 60 percent disabling from July 17, 2012; • Bilateral hearing loss, rated as 10 percent disabling from September 24, 2013; • Tinnitus, rated as 10 percent disabling from September 24, 2013; • Atrial fibrillation, status post cardiac ablation, rated as 10 percent disabling from July 15, 2016; • Diabetes mellitus, type II, rated as 10 percent disabling from August 19, 2019; and • Carotid stenosis, rated as noncompensable from July 17, 2012. The Veteran’s combined evaluation for compensation is 70 percent from August 4, 2010 and 90 percent from July 17, 2012. See 38 C.F.R. § 4.25. The Board finds that the Veteran has met the schedular criteria for TDIU since August 4, 2010. Although the AOJ sent a VA Form 21-8940 to the Veteran in August 2014 and asked him to complete it, he has not done so. The form requests information about education and training, as well as employment history. Per available records, to include multiple reports to mental health examiners, the Veteran has completed three years of high school without additional education or training. The Veteran’s employment history is not entirely clean, but records indicate he has previous employment history as a phone company technician. VA regulations provide that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App at 53 (1990). Considering the aggregate impact of his significant mental and orthopedic disabilities and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. (Continued on the next page)   Accordingly, the Veteran meets the criteria for an award of TDIU. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The RO will assign an effective date for the TDIU award when it effectuates this decision. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.