Citation Nr: 21063664 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-55 766 DATE: October 15, 2021 ORDER Entitlement for an initial rating higher than 50 percent prior to December 4, 2018 for posttraumatic stress disorder (PTSD) is denied. However, a higher 70 percent rating, though no greater, is granted for the PTSD since December 4, 2018, subject to the statutes and regulations governing payment of retroactive compensation. But entitlement to a total disability rating based on individual unemployability (TDIU), either prior to or since December 4, 2018, is denied. FINDINGS OF FACT 1. From October 22, 2015 to December 3, 2018, the severity, frequency, and duration of the Veteran's PTSD symptoms at most caused occupational and social impairment with reduced reliability and productivity. 2. Since December 4, 2018, however, the severity, frequency, and duration of his PTSD symptoms instead have caused what amounts to occupational and social impairment with deficiencies in most areas, though still not total occupational and social impairment. 3. Prior to December 4, 2018, he did not have a sufficient rating for his then only service-connected disability (PTSD) to qualify for a TDIU on a schedular basis, and both prior to and since December 4, 2018 (so even when additionally considering his tinnitus that has been service connected effectively since April 17, 2019), it is not shown these disabilities render him incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when also considering his level of education, prior work experience, and training. CONCLUSIONS OF LAW 1. From October 22, 2015 to December 3, 2018, the criteria are not met for entitlement to an initial rating higher than 50 percent for the PTSD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. But from December 4, 2018 onwards, the criteria are met for a higher 70 percent rating, though no greater, for the PTSD. Id. 3. However, the criteria are not met for entitlement to a TDIU either prior to or since December 4, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1968. This appeal to the Board of Veterans' Appeals (Board) is from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, in support of these claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of this Board (Travel Board hearing). A transcript of the proceeding is of record. The Board subsequently, in January 2020, remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration that especially included obtaining all outstanding treatment records relevant to these claims, whether from VA and/or private providers, asking the Veteran to complete and submit an official TDIU application (VA Form 21-8940), and then having him reexamined to reassess the severity of his PTSD including its functional impact, which in turn also would assist VA adjudicators in additionally determining whether he is entitled to a TDIU either under the schedular provisions of 38 C.F.R. § 4.16(a) or alternatively under the extra-schedular provisions of § 4.16(b). There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement for an initial rating higher than 50 percent for the PTSD prior to December 4, 2018 is denied. 2. However, a higher 70 percent rating, though no greater, is granted for the PTSD since December 4, 2018. The Veteran has had a 50 percent initial rating for his PTSD effectively since October 22, 2015, so since the date of receipt of his claim for service connection for this mental disorder. He has appealed this initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating in this circumstance VA adjudicators must consider whether to "stage" the rating meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others). And this is precisely what the Board is doing in this decision, that is, assigning a higher 70 percent rating as of December 4, 2018, though no greater rating either prior to or since. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411, so according to the General Rating Formula for Mental Disorders. Under this General Rating 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, cause the level of impairment required for a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 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 when symptoms such 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 cause total occupational and social impairment. For the period from October 22, 2015 through December 3, 2018, the Board concludes that the Veteran's symptoms most closely approximated those and the consequent impairment commensurate with his existing 50 percent rating. To wit, during a January 2016 VA examination, the Veteran reported that he was less active and more sedentary than in the past. His normal routine includes waking up early to take his dog for a walk and spending most of the day around the house. He indicated that he spends a lot of time by himself and has for many years. He also reported then currently being in his third marriage, but he added that he had been married to this third wife for 26 years and that it is a good marriage. He also indicated he has 4 children from his first marriage and that he has a good relationship with his children. The examiner explained the Veteran's PTSD symptoms included depressed mood, anxiety, and chronic sleep impairment. Along with his depressed mood, he endorsed symptoms including being withdrawn, isolation, loss of interest, low energy, and guilt. His anxiety symptoms included avoidance of crowds, impeded his ability to drive, hypervigilant, difficulty concentrating or lost in thought, irritability over little things, muscle tension, sleep disturbance, excessive worrying, and panic attacks. He appeared clean and neatly groomed. The examiner observed the Veteran's thought processes are linear, logical, and goal directed. He also denied suicidal and homicidal ideation. An April 2016 VA psychiatry note shows the Veteran was experiencing anxiousness and depressive symptoms that included panic attacks, generalized anxiety, and depressed mood. He reported that he had stopped taking his medication but was sleeping "great" at night, no longer taking the trazodone as he is able to both fall asleep on his own and stay asleep on his own. He also indicated that he had worked security for a school system and retired in 2013. As well, he stated that he enjoys kayaking, walking on the beach, painting, going to museums, and raising honeybees. During the objective mental status portion of the examination, the examiner observed the Veteran was appropriately dressed, groomed, and had good hygiene. His speech was spontaneous, non-pressured, and coherent. His thought process was logical and organized. He did not have any hallucinations, delusions, or paranoia. His cognition was intact with a good recall of recent events. He also again denied suicidal or homicidal ideation. In a November 2016 VA treatment note, the examiner indicated the Veteran was casually dressed and that his hygiene was adequate. His judgement and insight were fair. His thought processes were noted as goal directed, logical, and coherent. He also denied suicidal ideation. Based on those findings and assessments, the Board concludes that the weight of this evidence is against a rating exceeding 50 percent for the Veteran's PTSD during this initial period. During his January 2016 VA examination, he reported that his PTSD had symptoms associated with it, such as depression, anxiety, and chronic sleep impairment, but all of which are listed as typical of even a lesser 30 percent rating. In addition, the VA examiner described the Veteran's PTSD as causing 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, so also at a level that is commensurate with a 30 percent rating under the General Rating Formula for mental disorders. Nonetheless, he was granted a higher 50 percent disability rating, but it is not shown that he is entitled to an even greater 70 percent rating at least not prior to December 4, 2018. Overall, the Board finds that the next higher rating at 70 percent is not warranted for this initial period because the record is devoid of any evidence showing or suggesting the Veteran exhibited any of the symptoms that may result in social and occupational impairment corresponding to the severity level required of this greater rating. Although the record shows symptoms, such as the depression, it was not found to affect his ability to function independently. In addition, he did not evidence any signs or otherwise report symptoms consistent with psychosis or formal thought disorder, and his insight and judgment appeared intact. As well, he affirmatively denied any thoughts of self-injury, suicide, homicide, or other forms of violence. Overall, then, he did not demonstrate symptoms consistent with the general level of impairment that would warrant a disability rating higher than 50 percent or akin to the symptoms that are listed in the rating criteria for any greater rating. However, since December 4, 2018, a higher 70 percent rating is warranted. Notably, in a December 2018 VA treatment note, the Veteran's wife indicated they got into an argument about her driving him to his appointment and he made comments about not being able to stand this (medical illness, anxiety) and even took a gun from their closet and put it to his head for a moment. Prior to then, the Veteran had explicitly and repeatedly denied any suicidal ideation, intent, or plan and maintains even that gesture was in frustration rather than actual thought of killing himself. No matter, he made what amounts to a gesture of suicide, albeit denies any actual intent or plan. In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court found that the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level. Moreover, the Court also observed that suicidal ideation appears only in the 70 percent evaluation criteria and there are no analogues at the lower evaluation levels, see Vazquez-Claudio v. Shinseki, 713 F.3d at 116 (2013) (tracking the increasing severity, frequency, and duration of panic attacks and memory loss across the various disability levels). Thus, the Court held in Bankhead that the language of the regulation indicates that the presence of suicidal ideation, alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. Consequently, the Board finds that a higher 70 percent rating is warranted for the PTSD since December 4, 2018. That said, the Veteran is not entitled to an even higher 100 percent disability rating. He has not, as examples, indicated that he suffers from hallucinations of any kind (so either visual or auditory) or disorientation to time, place, person, or situation. Though the record suggests suicidal ideation, it does not appear to rise to the level contemplated by the schedular 100 percent rating such as persistent danger of hurting himself or others. Simply put, he does not have the required total occupational and social impairment owing to his PTSD. Therefore, the Board finds that, while he is not entitled to the highest possible 100 percent disability rating for his service-connected PTSD, he is entitled to an increased rating of 70 percent for this disability since December 4, 2018, so his appeal is granted to this extent. 3. Entitlement to a TDIU prior to or since December 4, 2018 is denied. The Veteran contends that he is unemployable because of his service-connected disabilities and, therefore, entitled to a TDIU. The determinative issue in a TDIU case is whether the Veteran's service-connected disabilities, alone, preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits him to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). 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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned by the Board in the first instance when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or a single bodily system are considered as one, collective disability. 38 C.F.R. § 4.16(a). For the period prior to December 4, 2018 the Veteran was service connected for PTSD only which, as already discussed, was rated as 50-percent disabling since October 22, 2015. Thus, he did not have a sufficient rating for this disability according to § 4.16(a) to be considered for a TDIU on a schedular basis. Nevertheless, even when the percentage requirements of § 4.16(a) are not met, individual unemployability benefits may be granted on an extra-schedular basis instead under § 4.16(b) when the Veteran is unemployable owing to service-connected disability. The Board cannot grant a TDIU on an extra-schedular basis in the first instance, but this does not preclude the Board from determining whether this special referral to the Director of the Compensation Service is warranted for this initial determination. See Barringer v. Peake, 22 Vet. App. 242 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Extra-schedular TDIU consideration requires contemplation of the following factors: severity of the Veteran's service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran's occupational and employment history were discussed in the report of his January 2016 VA examination. He indicated that he is a high school graduate and denied attending college or receiving any post-secondary vocational training. But he explained that he had worked in bakeries since the age of 14 and, afterwards, went on to own 2 bakeries with his second wife. After he divorced his second wife, he then worked for another bakery before starting his own bakery. He added that he owned and operated his bakery for approximately 7 years then sold it. Once he sold his bakery, he went to work for the school system for 8 years. He retired from the school system in 2012 and relocated to Florida. In an August 2017 VA treatment note, the Veteran expounded that he moved to Florida for better weather and because his sister was there. Given that during the period prior to December 4, 2018 the Veteran reported retiring from his job of many years, and not because of his service-connected PTSD and on his own volition, then moving to Florida for better weather and to be closer to family, especially his sister, the Board finds that his PTSD did not render him unemployable during this initial period. The Board has considered the Veteran and his spouse's statement that his PTSD caused several outbursts while employed in the school system and resulted in an early retirement. See November 2019 Board Hearing Transcript at pages 16-18. In determining whether statements made by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment or, here, during a hearing. See, e.g., Macarubbo v. Gober, 10 Vet. App. 388 (1997). In this regard, the Veteran has provided different explanations for his retirement and moving to Florida. The Board resultantly finds that his assertions of leaving his place of employment owing to his PTSD are not credible due to internal inconsistency and inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this case, such statements made for VA disability compensation purposes are of lesser probative value when in contradiction to contemporaneous histories he previously provided, including his previous statements made to medical providers during medical treatment. See Pond v. West, 12 Vet. App. 341 (1999). His later statements are internally inconsistent with his reports in contemporaneous treatment records, which show that he moved to Florida for better weather and to be closer to his sister. There additionally is no credible indication he was forced to retire, so prematurely. Accordingly, the Board finds that the evidence does not reflect that, during the period prior to December 4, 2018, the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disability (PTSD). As the preponderance of the evidence is against the claim, a TDIU prior to December 4, 2018 is denied and not worthy of referral for extra-schedular consideration. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Since December 4, 2018, the Veteran initially still had only one service-connected disability that being his PTSD, but which is now rated higher, as 70-percent disabling, as of that date. Also, effectively since April 17, 2019, he has had the additional service-connected disability of tinnitus (ringing in his ears) although it already has the maximum permissible schedular rating of 10 percent. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, DC 6260. Therefore, and that notwithstanding, the § 4.16(a) schedular criteria for TDIU consideration are met. Still, however, it is not shown that he is unemployable because of these service-connected disabilities. On March 14, 2019, so during the pendency of this appeal, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities Here, after considering both economic and noneconomic components, the Board finds that the preponderance of the evidence is against awarding a TDIU. The record, at least as it is currently, does not provide the required indication that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. As already discussed, the Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity indeed, even deficiencies in most areas, owing to symptoms that include gross impairment in thought process or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and inability to maintain effective relationships. The disability rating, itself, acknowledges the disability affects or impairs (i.e., interferes with) employment especially when, as here, the Veteran has a rating (like for his PTSD) that is in the higher end of the rating spectrum. See 38 C.F.R. §§ 4.1, 4.15. Moreover, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Id. In other words, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consequently, the record must reflect some factor that takes a particular case outside the norm for a claim of individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. That said, unlike a 100 percent schedular rating for PTSD, a TDIU requires less than "total" occupational impairment. Use of the word "substantially" in the TDIU context suggests intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable like contemplated for a 100 percent schedular rating for PTSD (i.e., "total" occupational impairment). See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In January 2020, the Veteran submitted VA Form 21-8940 (a TDIU Application), alleging that had been too disabled to work since 2013 because of his PTSD. But, to reiterate, he has given alternative or other reasons for his inability to obtain and maintain substantially gainful employment. During his December 2019 VA examination, as an example, he attributed his inability to work instead to his non-service-connected Meniere's Disease. Although not claiming to have been employed since 2013, he reported losing 2 to 4 weeks of work within the prior 12 months due to his inability to stand or put objects into a hot oven because of dizziness and feeling unsteady on his feet. There, conversely, was no mention of occupational impairment owing to his PTSD and tinnitus. Also, notably, the March 2020 VA PTSD examiner surmised that the Veteran's symptoms, including their functional impact in relation to his employability, could not be evaluated due to exaggeration of psychological problems and complaints. The VA examiner indicated that this raises serious issues regarding the reliability of the Veteran's subjective self-reported history of PTSD-related symptoms, especially in the context of external incentive (i.e., disability benefits). Additionally, as already highlighted, the Veteran has provided various reasons for leaving his last noted place of employment. Furthermore, his treatment records do not contain evidence of significant hospitalizations, surgery, or other procedures affecting his functionality. Despite the limitations listed in the reports of his VA examinations, the evidence shows that he has not actually been precluded from obtaining or maintaining substantially gainful employment. To reiterate, the Board acknowledges that the Veteran's service-connected disabilities can reasonably be expected to cause some symptoms and consequent impairment. However, there is not competent and credible evidence to support the notion that they preclude him from obtaining and maintaining substantially gainful employment. Other disabilities, meaning aside from his PTSD and tinnitus, have not been determined to be service connected, so they cannot factor into this TDIU determination. For these reasons and bases, the preponderance of the evidence is against this claim, so the benefit-of-the-doubt rule is inapplicable, and this claim consequently must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56, (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.