Citation Nr: 21063211 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 20-11 054 DATE: October 13, 2021 ORDER 1. Entitlement to an initial rating greater than 50 percent for service-connected post-traumatic stress disorder (PTSD) is denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED The issue of entitlement to service connection for a right foot disability is remanded. FINDINGS OF FACT 1. The Veteran's PTSD has most nearly approximated occupational and social impairment with reduced reliability and productivity. 2. The preponderance of the evidence is against a finding that the Veteran has been unable to secure or follow a substantially gainful occupation by reason of service-connected disability during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1962 to October 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In March 2021, the Board remanded this matter for further development. 1. Entitlement to an initial rating greater than 50 percent for service-connected PTSD is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). Service connection for PTSD was granted in a September 2017 rating decision, at which time the RO awarded a 50 percent rating effective July 20, 2017. The Veteran's PTSD has been rated on the General Rating Formula for Mental Disorders under DC 9411. Under DC 9411, a 50 percent rating is warranted for 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 (e.g., 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. A 70 percent evaluation 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; 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, 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(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather 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, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). In August 2017, the Veteran underwent a VA psychological evaluation. He reported living alone and working full-time at Walmart. He had three close friends with whom he interacted. The Veteran described symptoms including avoidance tendencies, anxiety, mild memory loss, as well as circumstantial, circulatory, or stereotyped speech. He demonstrated proper hygiene and denied suicidal or homicidal ideation, as well as delusions and hallucinations. The examiner noted that judgment, insight, concentration, and memory were fair. Formal testing revealed that any disturbance of motivation or mood had not significantly interfered with his functioning in the past month. The Veteran stated that he was "pretty much healthy," and that he experienced nervousness. The examiner concluded that the Veteran's condition did not interfere with his occupational or social functioning. In December 2017, the Veteran was afforded a second VA psychological examination. He stated that he left his job in October due to tiredness, leg pain, and a dislike of crowds. He lived alone and reported feeling lonely. The Veteran planned to begin exercising once he was cleared by his neurologist. He described symptoms including nightmares, avoidance tendencies, diminished interest in activities, feelings of detachment, hypervigilance, concentration difficulties, depression, anxiety, mild memory loss, and flattened affect. He was adequately groomed, and his speech and thought processes were normal. The examiner noted a significant difference in symptomatology since the previous exam, and concluded that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. At the February 2021 Board hearing, the Veteran testified that he had difficulty getting along with others, but denied any anger issues. He denied having close relationships with friends or family members. He also described having monthly flashbacks and intermittent sleep impairment. The Veteran reported some concentration difficulties, but denied any memory impairment. He acknowledged a decrease in his tidiness, but did not report any inability to perform regular tasks of daily living. He stated that he continued to run errands and went to the grocery store during non-peak times. The Veteran further testified that he was not receiving regular treatment for his PTSD at the time of the hearing. Most recently, in July 2021, the Veteran underwent another VA examination to evaluate the severity of his condition. He reported that he lived with his son and that he left his previous job at Walmart due to an inability to stand for prolonged periods of time. He stated that his mood was generally euthymic and denied chronic depression, noting that he was occasionally "moody" for a day or two and that he became anxious only over certain events. He further reported enjoying certain hobbies, such as watching television. The Veteran described symptoms including intrusive thoughts, irritability, and weekly nightmares. He denied avoidance behaviors, but disliked crowds. He demonstrated proper hygiene and cooperation, as well as normal eye contact, speech, orientation, thought processes, insight, and impulse control. He denied suicidal ideation and there was no evidence of hallucinations. The examiner concluded that the Veteran experienced occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. Throughout the appeal period, the Veteran's PTSD has been characterized by anxiety, depression, irritability, concentration difficulties, mild memory loss, intrusive thoughts, avoidance of crowds, as well as diminished interest in activities. Mental status evaluations by the VA examiners of record had normal results. The Veteran has not endorsed, nor have the VA examiners documented, 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; or an inability to establish and maintain effective relationships. The Board notes that the Veteran underwent a vocational assessment by private vocational consultant and psychologist in April 2018, which was based on a review of the record and an in-person interview with the Veteran. The consultant provided the Veteran's vocational history, as well as an evaluation of the Veteran's mental health. The consultant also indicated that the Veteran endorsed the following symptoms, to include depression, loss of interest in activities, fatigue, concentration difficulties, memory difficulties, sleep impairment, flashbacks, and feelings of hopelessness. The evaluation report noted that the Veteran avoided interactions with other people and did not pursue any hobbies. He was able to independently maintain daily grooming and hygiene tasks and prepared simple meals for himself. The Veteran was also able to manage his own financial matters. The consultant concluded that the Veteran's near continuous anxiety and depression prevented him from functioning independently, appropriately, and effectively. The consultant further noted that the Veteran experienced impaired impulse control and had severe deficits in the ability to establish and maintain effective personal and work-related relationships. The Board finds the assessment of the private vocational consultant to be of limited probative value because its conclusions are not supported by the overall evidence of record. For example, the consultant concluded that the Veteran's PTSD prevented him from functioning independently. However, the consultant also noted the Veteran's ability to adequately perform typical activities of daily living without any assistance. At the February 2021 Board hearing, the Veteran stated that he was no longer as tidy as he once was, but was able to carry out daily tasks, including running errands, independently. The consultant indicated that the Veteran denied suicidal intention, but experienced "vague thoughts of suicide." However, such symptomatology was consistently denied at the time of the VA examinations both prior and following the April 2018 private evaluation. The consultant referred to the Veteran's depression and anxiety as "near-continuous," while the Veteran described his mood as "euthymic" in July 2021. The April 2018 private examination also noted reports of panic attacks, which were otherwise denied by the Veteran throughout the appeal period. The consultant further characterized the Veteran as having impaired impulse control, but this appears to have been based upon no more than the Veteran's reports of irritability. Indeed, the April 2018 report contains no indication or examples of violent behavior, nor does the remainder of the record. The Veteran explicitly denied any involvement in angry altercations at the February 2021 Board hearing. The assessments of the VA examiners of record indicate that the Veteran's level of impairment is commensurate with no more than a 50 percent disability rating during the appeal period, which expressly rebuts the assertion that the Veteran experiences total social and occupational impairment. Notably, the most recent VA examination revealed the Veteran's level of impairment to be equivalent with that of a 30 percent disability rating, which suggests that the severity of his PTSD has waxed and waned throughout this time. It appears that the consultant was overly reliant on self-reporting and overlooked the additional medical evidence of record that demonstrates higher levels of overall functioning. Indeed, the consultant was unable to support his conclusions with any medical evidence beyond the lay reports provided at the April 2018 in-person interview. These inconsistencies lessen the probative value of the vocational consultant's conclusions. The Board finds the recurrent examination findings to be more probative than lay statements, as they are concurrently recorded by medical professionals with expertise on psychological disorders and reflect the Veteran's functioning at the time of examination, rather than recollections of symptoms from months or years prior. The totality of the evidence largely contradicts the level of impairment described by the private vocational consultant. Although the Veteran has described having few interpersonal relationships and avoiding crowds, the VA examiners of records have not found him to be unable to establish and maintain effective relationships. Indeed, he was living with his son as recently as July 2021. He has described an ability to independently maintain activities of daily living and has denied any violent behavior, despite reports of occasional irritability. Such symptomatology does not rise to the level of severity as to warrant a 70 percent rating. As noted above, the Veteran's psychological symptoms are more consistent with a 50 percent rating. Based on the foregoing, the Veteran's symptomology is best described as occupational and social impairment with reduced reliability and productivity. As such, an initial rating in excess of 50 percent for service-connected PTSD is not warranted. 2. Entitlement to a TDIU is denied. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 because of service-connected disability or disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service-connected disabilities do not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16 (a). The Veteran is service-connected for PTSD, which is 50 percent disabling; as well as tinnitus rated 10 percent disabling and bilateral hearing loss rated noncompensable. Thus, the Veteran has a disability rating of only 60 percent based on more than one disability. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16 (b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that referral for extraschedular consideration of a TDIU rating is warranted. Determinations regarding employability are an issue reserved to the adjudicator based on a totality of the evidence and not on any one particular opinion or examination. The Board notes that the April 2018 private vocational consultant concluded that the Veteran's PTSD resulted in total occupational impairment and impaired his ability to adapt to work settings and stay on task. However, the private vocational assessment is of reduced probative because it is poorly supported and inconsistent with the longitudinal evidence of record. Indeed, none of the VA examiners of record have found the Veteran's PTSD to render him unemployable and the examination reports generally reflect improved symptoms over time. Evidence of the Veteran's overall functioning does not reflect that he has been unable to gain or maintain substantially gainful employment due to his service-connected disability at any point during the relevant period. While the Veteran experiences a range of symptoms associated with PTSD, as discussed above, they have not caused significant functional limitations that would preclude the Veteran from work. Regarding the Veteran's education, training, skill, and work history, the Veteran reported that he has a GED and owned a car dealership for 25 years following separation from service. He then worked on a full-time basis for Walmart for 8 years as a cashier and greeter. He left his position at Walmart in October 2017 due to difficulty standing for prolonged periods of time. He stated that the company was accommodating of his needs, but that he grew tired of his coworkers and crowds. As to the Veteran's physical capabilities, the Veteran is service-connected for hearing loss. While the Veteran described difficulty standing for prolonged periods of time as a factor in his decision to leave his position at Walmart, the record does not reflect that he is incapable of a more sedentary form of employment or that his hearing loss impacts his ability to work. The Veteran has maintained independence in his activities of daily living and has maintained the ability to drive. Accordingly, the evidence supports a finding that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran's mental capabilities, the record indicates him to be capable of performing substantially gainful employment. Despite recurrent symptoms of depression, irritability, anxiety, flashbacks, reported social isolation, concentration difficulties, and sleep impairment, the Veteran has routinely recorded normal findings on mental status examinations and has independently maintained activities of daily living. Indeed, the most recent July 2021 VA examination report indicated that the Veteran's symptoms had decreased in severity and that he experienced occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The December 2017 VA examiner noted the Veteran's difficulty in functioning as a team member, but did not conclude that he was incapable of performing a more independent type of employment. Accordingly, it appears that the Veteran's PTSD can be accommodated by restricting the Veteran from work that requires frequent social interaction and making allowances for routine breaks to alleviate concentration difficulties over long periods of time. As such, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. For the reasons described above, the Board finds that the preponderance of the evidence is against a finding that the Veteran is precluded from all forms of substantially gainful employment due to the service-connected PTSD and, therefore, is not entitled to a referral for consideration of an extraschedular TDIU rating throughout the appeal period. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, a referral for consideration of a TDIU rating on an extraschedular basis is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this decision, the Board notes it is remanding a claim for service connection below. However, an appeal for service connection for that disability has yet to be perfected, and the Veteran may choose not to perfect an appeal of it. Therefore, a decision on the question of entitlement to TDIU benefits, based on the disabilities for which service connection is currently in effect is appropriate. In the event service connection is established for the disability that is the subject of the Remand, the Veteran may pursue TDIU benefits in the context of any evaluation as may be assigned for that disability. REASONS FOR REMAND The issue of entitlement to service connection for a right foot disability is remanded. This matter was previously before the Board in March 2021. At that time, the Board remanded this issue for the issuance of a Statement of the Case (SOC). The Board noted that the record included a pending notice of disagreement dated in August 2018. Review of the record indicates that the RO denied service connection for a right food disability in a September 2017 rating decision, with which the Veteran disagreed in August 2018. The notice of disagreement is still pending, and there is no indication that a statement of the case is forthcoming or that development is ongoing. The agency of original jurisdiction (AOJ) must comply with the Board's prior remand directives and issue an SOC for the matter. See Stegall v: West, 11 Vet. App. 268 (1998); Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: Issue a statement of the case on the issue of entitlement to service connection for a right foot disability. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.