Citation Nr: 21062902 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 13-18 995 Date: October 12, 2021 ORDER Entitlement to a rating in excess of 30 percent from February 22, 2011 to April 26, 2013 and in excess of 70 percent from April 26, 2013 to July 31, 2020 for post-traumatic stress disorder with polysubstance disorder and major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability is denied. FINDINGS OF FACT 1. From February 22, 2011 to April 26, 2013, the Veteran's posttraumatic stress disorder with polysubstance disorder and major depressive disorder is manifested by, at worst, social and occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From April 26, 2013 to July 31, 2020, the Veteran's posttraumatic stress disorder with polysubstance disorder and major depressive disorder is manifested by, at worst, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. 3. The Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent from February 22, 2011 to April 26, 2013 and in excess of 70 percent from April 26, 2013 to July 31, 2020 for posttraumatic stress disorder with polysubstance disorder and major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400(o), 4.130, Diagnostic Code 9411. 2. The criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 2020, the Board remanded the claims to ascertain the current severity and manifestations of his service-connected psychiatric disabilities, to include PTSD, substance disorder, and major depressive disorder. Subsequent to the Board remand, the RO granted an increased evaluation for the Veteran's PTSD and included additional mental disorders. Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under the applicable DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Acquired Psychiatric Disorders The Veteran's post-traumatic stress disorder with polysubstance disorder and major depressive disorder has been evaluated under Diagnostic Code 9411, which is under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. Under DC 9411, a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where 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 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency 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. 1. Entitlement to a rating in excess of 30 percent for post-traumatic stress disorder with polysubstance disorder and major depressive disorder from February 22, 2011 to April 26, 2013. The Veteran contends that his posttraumatic stress disorder with polysubstance disorder and major depressive disorder warrants a rating in excess of 30 percent prior to April 26, 2013. See September 2021 Appellate Brief. He timely perfected an appeal of the rating decision that initially evaluated his disability, effective from February 22, 2011. Thus, the period under appeal commences from such date. He underwent a June 2011 VA examination, which showed no impairment of thought processes or communication, no delusions, or hallucinations. There are no suicidal or homicidal thoughts, ideation, plans, or intent. He had the ability to maintain minimal personal hygiene and other basic activities of daily living. He was oriented to person, place, and time. There was some evidence of difficulty with concentration. There was no evidence of memory loss or impairment, no obsessive or ritualistic behavior noted. The rate and flow of speech was within normal limits and logical. The Veteran reported occasional panic attacks and described going to the ER one time for this, but the examiner noted that records did not indicate panic attacks historically over the years with any regularity or chronicity. He had some mild depressed mood and mild anxiety. There was no impairment in impulse control. There was mild sleep impairment. During the examination, it was noted that the Veteran's functioning was impaired and marked by social withdrawal and anxiety. It was further noted that his employment was never impacted by psychiatric issues. Based on the above, the Board finds that from February 22, 2011 to April 26, 2013, a rating in excess of 30 percent for the Veteran's posttraumatic stress disorder with polysubstance disorder and major depressive disorder is not warranted. The evidence during this period shows that symptoms included difficulty with concentration and occasional panic attacks, along with mild depression and anxiety. However, his symptoms prior to April 26, 2013 were never shown to have manifested as more than mild in severity. At no point during this period did he exhibit occupational and social impairment with reduced reliability and productivity symptoms such as panic attacks more than once a week, or a greater level of impairment in more areas affecting judgement, interactions, occupation, or his social settings, as required for a higher rating. This decision is based on considering the lay and medical evidence regarding severity, frequency and duration of all the manifestations of the service-connected psychiatric disability whether listed in the General Schedule or not. Accordingly, the claim for a higher rating prior to April 26, 2013 is denied. 2. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder with polysubstance disorder and major depressive disorder from April 26, 2013 to July 31, 2020. The Veteran contends that his posttraumatic stress disorder with polysubstance disorder and major depressive disorder warrants a rating in excess of 30 percent from April 26, 2013 to July 31, 2020. See September 2021 Appellate Brief. April 2013 VA examination shows that the Veteran is able to maintain activities of daily living, including personal hygiene. It was noted that he has not experienced significant trauma since his last examination and there have not been remissions during the past year. Thought processes are somewhat impaired, as Veteran showed significant difficulty now with remote, recent, and immediate memory. His social functioning was not impaired. His employment is impacted due to psychological issues as described. The Veteran had difficulty with comprehension and immediate memory that would interfere with task performance, and he describes post-military stressors from multiple divorces, imprisonment, being homeless, and loss of income. He had current sleep disturbance due to depression. His PTSD and depressive disorder symptoms of social isolation, disturbance of mood, and suspiciousness overlap and cannot be separated. He exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, impaired abstract thinking, disturbances of motivation and mood. October 2016 VA examination occupational and social impairment with reduced reliability and productivity. He had mild anxiety due to PTSD. He had sleep disturbance and depression due to Depressive Disorder, and panic symptoms due to Panic Disorder. He had behavioral problems and poor cooperation with treatment due to Personality Disorder. For PTSD, there was 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. It was noted that other current impairment was due to personality disorder, major depressive disorder and panic disorder. August 2019 VA examination showed 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. Symptoms included depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgement, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. Based on the above, the Board finds that a rating in excess of 70 percent for PTSD from February 22, 2011 to April 26, 2013 is not warranted. He presented with deficiencies in many, but not all, areas such as work, school, family relations, judgment, thinking and/or mood. During this period, the disorders exhibited, at worst, social and occupational impairment in most areas. At no point during this period did were his symptoms manifested by total occupational and social impairment, as required for a 100 percent rating. The Board acknowledges the Veteran's competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. This decision is based on considering the lay and medical evidence regarding severity, frequency and duration of all the manifestations of the service-connected psychiatric disability whether listed in the General Schedule or not. Accordingly, a rating in excess of 70 percent from April 26, 2013 to July 31, 2020 is denied. 3. Entitlement to a total disability rating based on individual unemployability. The Veteran contends that his service-connected disabilities prevent him from securing and following substantially gainful employment. It should be noted that from July 31, 2020, the Veteran has been awarded a 100 percent disability rating for posttraumatic stress disorder with polysubstance disorder and major depressive disorder. Thus, the Board will only consider an award for total disability prior to such date. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one 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. §§ 3.340 , 3.341, 4.16(a). In this case, from April 26, 2013, the Veteran was in receipt of a combined disability rating of at least 70 percent for his service-connected disabilities. Thus, from April 26, 2013, the Veteran's disabilities met the schedular criteria for a TDIU. See 38 C.F.R. § 4.16 (a). Such disabilities include posttraumatic stress disorder with polysubstance disorder and major depressive disorder and Parkinson's disease. Based on a careful review of the record, the Board finds that the criteria for TDIU are not met. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). 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 C.F.R. §§ 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience. The Veteran reported that he last worked in April 2010, earning $7649 per year. He worked part time with a job training program that sought work which accommodated his disabilities. See January 2012 VA Form 21-4192. Regarding the Veteran's service-connected Parkinson's disease, the VA treatment notes show that the Veteran has ongoing symptoms of tremors, slowness, and rigidity. Regarding his posttraumatic stress disorder with polysubstance disorder and major depressive disorder, during this period, his disorders manifested occupational and social impairment in most areas. A June 2011 VA psychiatric/mental disorder examination noted that the Veteran's functioning was impaired and marked by social withdrawal and anxiety. However, it was further noted that his employment was never impacted by psychiatric issues. The examiner noted that the Veteran worked for 40 years before retiring because of the physical demands of the type of labor he had performed over his lifetime. Regarding chronic obstructive pulmonary disease, a non-service-connected disability, the Veteran submitted a January 2012 letter from a VA clinician. The clinician stated that the Veteran develops significant dyspnea with minimal exertion (approximately 15 feet) and is quite limited ambulating up and down stairs even with use of inhalers and oxygen. The clinician further stated that "considering the lack of clinical improvement over the past three years, I believe this to be a permanent medical condition. In my professional opinion, [the Veteran] is not capable of achieving and maintaining gainful employment based on the degree of ambulatory symptoms and supplemental oxygen requirement, even while sedentary." Based on a review of the record, the Board finds that a total disability rating based on individual unemployability is not warranted. Although the Veteran's service-connected disabilities of Parkinson's disease and posttraumatic stress disorder with polysubstance disorder and major depressive disorder impair his work abilities to some degree, they do not prevent him from securing and following substantially gainful employment. Instead, by the Veteran's own assertion, he discontinued employment in large part due to his COPD, and the medical evidence further supports that his non-service-connected disability prevented him from substantially gainful employment. Elsewhere in the record, it has also been asserted that non-service-connected physical impairments contribute in large part to the lack of gainful employment consistent with his work history as a laborer and performing physical duties. The Board acknowledges the Veteran's competent and credible reports of relevant observable symptoms, as set out in the treatment records and examinations. However, to the extent that the Veteran believes that a total disability is warranted, this belief is outweighed by the remaining evidence of record, which does not show that his service-connected disabilities prevent him from securing and following substantially gainful employment. Accordingly, the claim for total disability based on individual unemployability must be denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Wilson, 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.