Citation Nr: 21062273 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-35 461 DATE: October 6, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. During the appeal period, the severity, frequency, and duration of the Veteran's symptoms did more closely approximate occupational and social impairment with deficiencies in most areas; total occupational and social impairment is not shown. 2. The Veteran's service-connected disabilities precluded him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. During the appeal period, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been satisfied. 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 entitlement to a TDIU have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to October 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. As an initial note, the Veteran filed a separate appeal under the Appeals Management Act (AMA) for the issue of entitlement to a TDIU. The Board will dismiss that appeal in a separate decision, as it is being granted in this decision. In June 2018, the Veteran filed a VA Form 21-8940 requesting a TDIU based on his service-connected disabilities. This issue is properly before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2018, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Veteran was notified by letter on August 2021 that the VLJ who conducted the November 2018 hearing has since left the Board and the Veteran was offered another opportunity to have another hearing before a different VLJ. Since no response was received from the Veteran within 30 days from the date of the letter, the Board will proceed to adjudicate the claim. As noted below, the Veteran reported that he began receiving Social Security benefits at age 62. VA attempted to obtain the Veteran's Social Security Administration (SSA) records, and in November 2018, SSA informed VA that no medical records existed. 1. Disability Rating for PTSD The Veteran's PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Id. A 30 percent rating is warranted when there is 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 conversation normal, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. 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 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. Id. 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 for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). A review of the VA treatment records revealed reports of suicidal ideation by the Veteran in 2014, 2015, 2016, and 2017. See January 2014, June 2016, August 2016, and April 2017 VA Treatment Records. In a March 2014 VA medical opinion by social worker T.J., it was noted that the Veteran had reported adjustment symptoms consistent with PTSD including insomnia, mood labiality, intrusive thoughts, and exaggerated startle response. The Veteran continued to experience periodic sleep problems due to nightmares, remains socially avoidant, continues to have depression and anxiety, and reports ongoing intrusive thoughts about some of his combat experiences during his military tour in Vietnam. The Veteran presented for a VA examination in March 2014. The Veteran reported being married and living with his wife and mother in law. He maintains a relationship with his siblings, children, and stepchildren. He has a number of grandchildren and step-grandchildren but does not like being around all of them at once. He lives at a farm which keeps him busy. He reported working for 30 years, with 10 to 12 years served as a director. He reported that he had been unemployed since May 2007 after being fired due to a conflict with a new supervisor and not being enthusiastic enough. He started receiving Social Security benefits when he turned 62. Upon examination, the examiner noted that the Veteran's psychiatric disability was manifested by depressed mood, anxiety, chronic sleep impairment, and mild memory loss such as forgetting names, directions, or recent events. He reported experiencing suicidal ideation when he has mental or physical pain. The most recent suicidal ideation occurred 2 weeks prior to the exam. The examiner opined that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was afforded a VA examination in January 2017. The Veteran reported that he is still married and continues to live with his wife and mother in law. He maintains a relationship with his brothers, children, stepchildren, grandchildren, and step-grandchildren. He participates in a PTSD group and has relationships with some members in the group. Upon examination, the examiner noted that the Veteran's psychiatric disability was manifested by depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild 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. The Veteran reported experiencing fairly regular suicidal ideation which seems more passive in nature. Overall, the examiner opined that the Veteran had an occupational and social impairment with reduced reliability and productivity. In a March 2018 and February 2020 VA medical opinion by psychologist J.B., it was noted that the Veteran experienced chronic symptoms of PTSD that continues to include sleep disturbances with nightmares on a regular basis, decreased motivation, anhedonia, difficulty with mood control, blunted affect, isolative behavioral patterns, and social anxiety. Despite treatment which includes individual psychotherapy, group therapy, and psychotropic medications, the Veteran's mental symptoms continued to be unimproved and result in inability to work. The Veteran presented for another VA examination in January 2019. The Veteran reported maintaining a relationship with his family. He considers several members of his PTSD group as friends and also is friendly with his exterminator. He reported helping take care of animals in his property. The Veteran reported that he worked for 30 years but ended up being forced into retirement because of his relationship with his supervisor. Upon examination, the examiner noted that the Veteran's psychiatric disability was manifested by depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; and disturbances of motivation and mood. The Veteran endorsed having intermittent suicidal ideation but denied having active intent or plan involving self-harm. Overall, the examiner opined that the Veteran had an occupational and social impairment with reduced reliability and productivity. Regarding unemployability, the Veteran was terminated after getting into a verbal altercation with the new president of his company. The examiner noted that the Veteran's symptoms were moderate in severity and that if he was employed, he would likely have the most difficulty interacting effectively with supervisors, coworkers, and customers due to his irritability, anger, and tendency to isolate. The examiner noted that the Veteran could probably function adequately in employment situations in which he worked alone and was not subject to much oversight or correction by other individuals. Based on the foregoing, the Board finds that 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. In that regard, in a September 2013 statement accompanying his claim for increased rating, the Veteran reported that his PTSD symptoms had worsened. During the subsequent treatment and examination reports, the Veteran reported symptoms meeting the 70 percent rating criteria such as suicidal ideation. 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). During the Board hearing, the Veteran's representative stated that the Veteran felt he was a persistent danger to himself and others because he was afraid of hurting himself and other family members. See November 2018 Hearing Tr. at 11. However, the severity, frequency, and duration of the Veteran's suicidal ideation and thoughts of during other members of his family have not risen to the level contemplated by the 100 percent disability rating. While the Veteran reported suicidal ideation, the Veteran also regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during his VA examinations. Additionally, as noted below, he does not have total social impairment. While the Veteran has reported symptoms that may be contemplated by a 100 percent rating, 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. Although the Board grants a TDIU in this decision in part due to his PTSD, total social impairment is not shown. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). The evidence does not show that he was not totally socially impaired. For instance, the Veteran continued to maintain a social relationship with his family, members of his PTSD group, and his exterminator. The overall evidence does not show that there is both total occupational and total social impairment. Accordingly, for the duration of the appeal period, the Board finds that a 70 percent rating, but no higher, is met for service-connected PTSD. 2. TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and 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). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). The Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected PTSD, diabetes mellitus type II, right and left lower extremity peripheral neuropathy, and tinnitus. 38 C.F.R. § 4.16(a). Military personnel records reflect the Veteran's military occupation specialty (MOS)/rating was that of field radio mechanic. On his October 2018 application for unemployability he reported that his PTSD, diabetes, and peripheral neuropathy prevents him from following a substantially gainful occupation. The Veteran reported completing 4 year college education. He reported he last worked full-time in May 2007. Examination findings for the Veteran's service-connected PTSD are noted above. The Veteran presented for a VA examination in February 2015, July 2018, and January 2019 to assess the current severity of his service-connected diabetes mellitus type 2, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported no functional impact. The Veteran presented for a VA examination in July 2018 to assess the current severity of his service-connected right and left lower extremity peripheral neuropathy, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported having tingling and burning in his feet. The examiner reported that the Veteran had mild constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner noted that the Veteran had mild incomplete paralysis of the sciatic nerve of both lower extremities. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported no functional impact. The Veteran presented for a VA examination in January 2019 to assess the current severity of his service-connected right and left lower extremity peripheral neuropathy, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported numbness in his toes and burning in his feet. The examiner reported moderate severity in intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner noted that the Veteran had moderate incomplete paralysis of the sciatic nerve of both lower extremities. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported that the Veteran's condition would impair activities that may cause injury to the feet. The Veteran submitted a May 2021 vocational assessment by vocational expert J.C., who had reviewed the claims file to include documents from the Social Security Administration (SSA). As noted above, SSA informed VA that no medical records for the Veteran existed. J.C. must have meant the SSA Profile in the claims file that showed his SSA income, the SSA record request, and the SSA response that no records existed. Vocational expert J.C. opined that it is more likely than not that the Veteran has been unable to maintain substantially gainful employment on a regular and consistent basis at any level of work since at least January 2017 due to a combination of his impairment which have continued to deteriorate and cause more barriers as the years passed. Vocational expert J.C. also considered the negative January 2019 PTSD VA examiner's opinion and noted that it would have been unrealistic for the Veteran to produce substantially gainful employment when all of the Veteran's service-connected impairments left the Veteran incapable of performing any level of employment, physically or mentally. Treatment records are not in significant conflict with findings during VA examination. For example, the SSA Profile indicates that the Veteran has been receiving SSA income since September 2009. Taken as a whole, the Veteran's symptoms do suggest he was unable to obtain and maintain employment. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does consider this level of impairment as one that would preclude employment. In that regard, the Board gives some probative weight to the March 2018 and February 2020 VA medical opinion by psychologist J.B. who opined that the Veteran could not work due to his PTSD. The Board gives great probative weight to the vocational opinion by expert J.C. who had considered the Veteran's claims file and found that the Veteran is unable to maintain substantially gainful employment as a result of his service-connected disabilities. Notably, expert J.C. took into consideration the January 2019 PTSD negative opinion by the VA examiner and found that the opinion was limited in nature and did not factor the remaining service-connected impairments. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds the weight of the evidence is in favor of finding that the Veteran's service-connected disabilities rendered him unable to secure and maintain substantially gainful employment. Thus, a TDIU is warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.