Citation Nr: 21005093 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 12-27 414 DATE: January 29, 2021 ORDER Prior to October 23, 2012, a rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is denied; from October 23, 2012 a rating in excess of 70 percent for PTSD is denied. Entitlement to a total rating based on individual unemployability (TDIU) prior to October 23, 2012 is denied. FINDINGS OF FACT Prior to October 23, 2012, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment at any time during the period on appeal. The evidence of record does not support a finding that the Veteran’s service-connected disability rendered him unable to secure and follow substantially gainful employment prior to October 23, 2012. CONCLUSIONS OF LAW Prior to October 23, 2012, the criteria for a disability rating in excess of 30 percent for PTSD are not met; since October 23, 2012, the criteria in excess of 70 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU are not met prior to October 23, 2012. 38 U.S.C. §§ 5110(a), 5107(b); 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1968 to September 1971. In June 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. This matter was previously before the Board in January 2015, July 2017, and September 2018, at which times it was remanded for further development. The Veteran was originally service connected for PTSD, rated at 30 percent disabling, effective October 23, 2008. The Veteran appealed the initial rating. In a November 2017 rating decision, the Regional Office (RO) increased the rating to 70 percent effective October 23, 2012 and proposed a finding of incompetency. The Veteran was found to be competent in an August 2020 rating decision and the 70 percent rating was continued. The Veteran was granted individual unemployability effective October 23, 2012 in a September 2020 rating decision. The requested development having been completed; the matter has returned to the Board. As a preliminary matter, the Board notes that the Veteran’s representative has raised an issue with the duty to assist. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). On November 26, 2008, the RO sent the Veteran a letter requesting the Veteran “[p]rovide reports of private physicians, if any, who have treated you for this condition since discharge.” That letter also notified him that VA could assist him with obtaining medical evidence from treatment providers and provided VA Form 21-4142. Additionally, the Veteran was provided with information regarding the substantiation of his claims through buddy statements and other records. Thus, the Veteran was provided the information and opportunity to identify any relevant information related to treatment. Relevant to the duty to assist, the Board finds that all relevant evidence has been obtained in conjunction with the claim on appeal, including the Veteran’s service treatment records and all post-service VA and private treatment records identified by the Veteran and record, including records from the Social Security Administration (SSA). The appellant has not identified any additional outstanding records relevant to the appeal that have not been requested or obtained. Entitlement to a rating in excess of 30 percent from October 23, 2008, and in excess of 70 percent from October 23, 2012, for service-connected posttraumatic stress disorder (PTSD). The Board has examined the entire file for evidence of an increase in symptoms at any time during the claim period. In appeals of both initial rating claims and increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his PTSD symptoms warrant higher ratings than have been assigned. He also contends that his symptoms were indicative of TDIU prior to the assigned date. 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 Board concludes that prior to October 2012, the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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. The Veteran sought assistance from the Springfield Vet Center in October 2008. During his initial intake appointments, which took place over a three-month period, he was noted to be anxious and complaining of sleep disturbances. He additionally noted he experienced intrusive thoughts of his Vietnam service. The counselor noted that his symptoms were consistent with a diagnosis of PTSD and mild to moderate depression. The December 2009 VA examination shows that the Veteran’s PTSD was manifested by symptoms associated with a 30 percent rating. The Veteran was noted to be experiencing insomnia, irritability, recurrent and intrusive recollections of his in-service stressors, as well as difficulty concentrating. The examiner opined that the Veteran suffered from an occasional decrease in work efficiency and intermittent periods of instability to perform occupational tasks, but that he demonstrated general satisfactory functioning. He did not report hallucinations, ritualistic behavior, or panic attacks. He did not report suicidal or homicidal ideations. He was able to maintain his personal hygiene and had no problems with activities of daily living. At that time, he was not experiencing memory problems. His impulse control was noted to be fair, with the Veteran stating “I either lose it or walk away.” The examiner did note that the Veteran’s psychosocial functional status was poor and that the Veteran had few friends. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. While the Veteran did experience symptoms contemplated by a 50 percent rating, including disturbances of mood and difficulty in establishing social relationships, the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 50 percent rating prior to October 31, 2012. The criteria for a 50 percent or higher rating are not met. The Veteran was assigned a 70 percent rating for PTSD in November 2017, effective from October 2012. The Board concludes that after October 2012, the Veteran’s symptoms did not cause 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. At his March 2015 VA examination, the Veteran was noted to have a depressed mood, anxiety, and chronic sleep impairment. While he denied homicidal and suicidal ideations, he endorsed a history of detachment to include no friendships, a strained relationship with his son, minimal contact with other family members, and no romantic relationships. He was no longer working due to decreased motivation and concentration. The examiner opined that the Veteran’s combination of PTSD and depression were resulting in moderate impairment at that time. In a May 2015 clinical summary, the Veteran’s therapist noted the Veteran had been in treatment since October 2008, with a three-year break beginning in October 2009. He returned to therapy in October 2012. The therapist described the Veteran’s affect as flattened with a restricted show of emotion. The therapist further noted that the Veteran displayed circumstantial, circumlocutory, or stereotyped speech, and that the Veteran is difficult to directly engage regarding his combat experiences and symptoms, and that he will often turn the conversation to a more benign topic. Further, the Veteran displayed disturbances of motivation and mood, and specifically did not take action to rectify serious issues in his life, like residing in a home that he had not made payments on and that was expected to be foreclosed on. The therapist also noted that the Veteran continued to have failed personal relationships. The Veteran was afforded a VA examination for PTSD in July 2020. The examiner noted the Veteran reported getting easily frustrated and that he can “snap” at others when angry. The Veteran denied suicidal thoughts, ideation or plan. However, the examiner noted that the Veteran expressed suicidal thoughts on a daily basis, but did not indicate that he was having suicidal ideation. He expressed difficulty sleeping and a lack of appetite, as well as feelings of being hopeless and worthless. The Veteran was poorly groomed and dressed at the appointment. He did not have problems with short-term recall or long-term memory during the appointment. The examiner noted that the Veteran’s symptoms of depression had increased, and that he had a lack of family support and a strained relationship with his son. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, to include January 2019 treatment notes. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA and private treatment records and the July 2020 VA examination indicate that the Veteran had depressed mood. While the Veteran did experience symptoms contemplated by a 100 percent rating—persistent danger of hurting himself—the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. Entitlement to a total rating based on individual unemployability (TDIU) prior to October 23, 2012 Total disability ratings for compensation 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, and that, if there are two or more such 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). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the analysis for increased rating claims, which are based on average levels of impairment, the analysis for a TDIU claim is based upon the individual. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Veteran contends that his service-connected PTSD had a significantly negative impact on his ability to work, and that TDIU benefits should have been assigned prior to the October 23, 2012 effective date the RO granted. From October 2008 to October 2012, the Veteran’s combined rating was 40 percent, with his PTSD assigned a 30 percent rating, tinnitus a 10 percent rating, and bilateral hearing loss assigned a noncompensable rating. The Veteran did not meet the schedular TDIU criteria for the appeal period from October 2008 to October 2012, as his combined disability rating was below 70 percent and he did not have a service-connected disability evaluated at 60 percent. Although it is observed that the Veteran did not meet the schedular TDIU requirement as his combined disability rating was below 70 percent and he did not have a service-connected disability evaluated at least 60 percent, eligibility for TDIU may still be considered on an extraschedular basis. Here, the central inquiry is whether the Veteran’s service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs against finding that the Veteran’s service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment. Evidence shows the Veteran had been a self-employed contractor since 1977; his business was focused on construction and landscaping work. He also had a private pilot license and was licensed as a realtor. The Veteran completed a VA 21-8940 for increased compensation based on unemployability in 2020. Therein he noted that his business effectively closed in 2008, although it remained open until 2016. He stated that he was unable to perform the work that came his way, and that he would perform “odd jobs.” The VA examiner at the Veteran’s December 2009 VA examination noted that the Veteran had been unemployed for the last four to five months. Throughout the record, the Veteran indicates that there were various reasons that he was not working, including that business had generally “dried up,” the economy, and drought. However, the Veteran noted that he had a lead and a bid on a job in December 2012 in a counseling session. He also testified at his Board hearing to not working due to PTSD and “slow work,” and being unable to function in the capacity he used to. While the Board does not doubt that the Veteran’s service-connected disabilities have an effect on his employability, the weight of the evidence does not present an exceptional or unusual disability picture such that the symptomatology associated with these disabilities, alone or in combination, is not contemplated within the relevant rating criteria. Because the evidence does not establish that the Veteran was unable to secure or follow a substantially gainful occupation by reason of service-connected disability prior to October 23, 2012, referral to the Director, Compensation Service, is not warranted. 38 C.F.R. § 4.16 (b). Entitlement to TDIU benefits prior to October 2012 is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, Associate 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.