Citation Nr: 21064228 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-14 206A DATE: October 19, 2021 ORDER Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depression prior to January 20, 2021, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT 1. The Veteran's PTSD with major depression was not productive of total occupational and social impairment prior to January 20, 2021. 2. Prior to January 20, 2021, the Veteran met the schedular criteria for TDIU, and there is a reasonable doubt as to whether his service-connected PTSD with major depression rendered him unable to obtain or maintain substantially gainful employment. 3. Since January 20, 2021, the Veteran has been assigned a 100 percent evaluation for PTSD with major depression. He is also service-connected for loss of any portion of the maxilla, which is currently assigned a noncompensable evaluation. 4. Since January 20, 2021, the evidence does not show that the Veteran is unemployable due to his service-connected loss of any portion of the maxilla alone. CONCLUSION OF LAW 1. The criteria for an initial evaluation in excess of 70 percent for PTSD with major depression are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Codes 9434-9411. 2. The criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293 (2008); Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1979 to July 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2013 and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2020. A transcript is of record. The Board remanded the case for further development in September 2020. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, the RO increased the evaluation for the Veteran's PTSD with major depression to 70 percent effective from March 21, 2012, and 100 percent effective from January 20, 2021. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher initial evaluation for PTSD with major depression remains on appeal for the period prior to January 20, 2021. Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's PTSD with major depression is currently assigned a 70 percent evaluation prior to January 20, 2021, pursuant to 38 C.F.R. § 4.130, Diagnostic Codes 9434-9411. Under Diagnostic Codes 9434 and 9411, a 70 percent rating is assigned when the psychiatric disorder results in 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted when the psychiatric disorder results in 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 use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial evaluation in excess of 70 percent for PTSD with major depression prior to January 20, 2021. The evidence does not show that the Veteran had 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 August 2013 VA examiner found that the Veteran had a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. However, he indicated that the Veteran did not have any other symptoms attributable to his service-connected disability. VA treatment records dated prior to January 20, 2021, also noted that the Veteran was alert and oriented to time, place, and person, and had average or normal speech, a linear thought process, focused thought content, and normal to fair insight and judgment. The Veteran also denied having audio and visual hallucinations and delusions, and his treatment providers indicated that he did not have current or past audio or visual hallucinations, paranoia, delusions, or mania. Although he had reported some short-term memory impairment, he had good concentration and long-term memory. The Veteran also denied having suicidal or homicidal ideations, to include feelings of hurting himself, his wife, or others. See May 2020 VA treatment record. The Board does acknowledge a December 2020 record noting that he had a remote history of suicidal ideations in the past, but it was also noted that he had consistently denied experiencing them for over 10 years. In addition, the August 2013 VA examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. Such a finding is commensurate with a 50 percent evaluation. The Board does acknowledge that the Veteran testified during the June 2020 hearing that he had other symptoms, such as violent thoughts and anger. However, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or symptoms of similar severity may be shown or argued, the Board finds that the Veteran's PTSD with depression was not productive of total occupational and social impairment prior to January 20, 2021. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). With regard to social impairment, the August 2013 VA examiner noted that the Veteran had been married three times and was not social. However, he did have a large group of acquaintances and two friends. Moreover, during the June 2020 hearing, the Veteran testified that he remained married to his current wife of 22 years. He also stated that there were a couple people that visit occasionally. Thus, while the Veteran clearly had some degree of impairment, it cannot be said that he had total social impairment, as he maintained some relationships prior to January 20, 2021. With regard to occupational impairment, the Veteran told the August 2013 VA that he had worked at his last job for over 25 years until the company closed his division. He indicated that he was running a concrete countertop business. During the June 2020 hearing, the Veteran testified that he was last employed full-time in 2005 and discussed his occupational impairment. However, even with total occupational impairment due to his service-connected psychiatric disability, the fact remains that he has not been shown to have total social impairment, as required by the rating criteria for a 100 percent evaluation. After considering the evidence of record, the Board finds that the Veteran's PTSD with major depression does not more closely approximate the criteria for a 100 percent disability rating prior to January 20, 2021. Overall, the Veteran has not demonstrated a level of impairment consistent with the 100 percent criteria, nor have the Veteran's symptoms caused total occupational and social functioning referenced by the 100 percent evaluation criteria. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 100 percent have not been met or approximated for this time period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Therefore, the Board finds that a higher initial evaluation is not warranted prior to January 20, 2021. The Veteran and his representative have not 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). TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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 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. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Prior to January 20, 2021 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to TDIU prior to January 20, 2021. Prior to January 20, 2021, the Veteran was service-connected for PTSD with major depression (70 percent disabling) and for loss of any portion of the maxilla (noncompensable). His combined evaluation was 70 percent. Therefore, he mt the schedular criteria for TDIU during this time period. In an August 2015 VA Form 21-8940, the Veteran reported that he had last worked full-time in construction in August 2005. He indicated that he had completed high school, but did not have any other education or training. He listed PTSD as the service-connected disability preventing him from securing or following any substantially gainful employment. A February 2013 VA treatment record noted that the Veteran was unemployed, and a February 2014 VA treatment record indicated that he had been unemployed for several years. An April 2014 VA treatment also documented that the Veteran had a history of work as a concrete contractor and that he continued to work in that field on a limited basis. However, those records do not discuss the reason for his unemployment. A July 2016 VA treatment record shows that the Veteran remained unemployed. It was noted that his employment history mostly involved construction and that he typically helped supervisory roles estimating and writing proposals. The Veteran reported that he felt hurt and dismissed when they closed the company and that he developed an aggressive, counteractive attitude. He indicated that he had not worked since that time. The August 2013 VA examiner noted the Veteran's report that he was intense at work, had arguments, fired employees, and was fired himself. He reported that he had worked at his last job for over 25 years until the company closed his division. He indicated that he was running a concrete countertop business. The examiner noted that his symptoms included disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. He found that the Veteran had occupational and social impairment with reduced reliability and productivity. Records from the Social Security Administration (SSA) show that the Veteran was granted disability benefits effective from August 1, 2013, based on the effects of his physical and mental impairments. The order stated that he had severe impairment resulting from anxiety, depression, insomnia, obesity, tinnitus, hearing loss, ocular migraines, restless leg syndrome, PTSD, and osteoarthritis of the basal right thumb joint. A medical expert had identified some physical limitations in December 2017, but also found that the Veteran would do best in a non-stressful, relaxed work environment. The records note numerous PTSD symptoms, including anxiety, isolation, and sleep impairment, and indicated that he cannot cope with public contact. During the June 2020 hearing, the Veteran testified that he mostly stayed at home in his bedroom. He indicated that he had been housebound for three to four years and has anger, sleep impairment, social isolation, and a lack of trust in others. The Veteran also stated that other people do not want to be around him. Based on the foregoing, the Board finds that there is at least a reasonable doubt as to whether the Veteran would be able to maintain substantially gainful employment in light of his service-connected PTSD with major depression, particularly when the significant impairments and limitations identified throughout the record are considered. There is also evidence showing that the Veteran's service-connected psychiatric disability render him unemployable, particularly when considered in the context of his education and past work experience. Indeed, there is evidence from a VA examination and SSA records supporting such a finding. Although there is evidence showing that other disabilities may impact the Veteran's ability to work, the evidence still shows that there is a reasonable doubt as to whether he is unemployable due to his service-connected PTSD with major depression without any consideration of his other disorders. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to TDIU is warranted prior to January 20, 2021. On or After January 20, 2021 Since January 20, 2021, the Veteran has been assigned a 100 percent evaluation for PTSD with major depression. In Bradley v. Peake, the Court held that a claim for a TDIU on the basis of a certain disability is not moot once a schedular 100 percent evaluation is assigned on the basis of other disabilities, as the TDIU may still form the basis for assignment of special monthly compensation (SMC) under section 1114(s). See Bradley, 22 Vet. App. at 294. The Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. Id. See also Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). The Veteran has also been granted service connection for loss of any portion of the maxilla, which is currently assigned a noncompensable evaluation. He is not service-connected for any other disabilities. As noted above, because the Veteran is in receipt of a schedular 100 percent evaluation for PTSD with major depression, only the grant of TDIU predicated on another single disability may form the basis for an award of special monthly compensation SMC. As the Veteran is assigned a noncompensable evaluation for loss of any portion of the maxilla, he does not meet the schedular criteria for TDIU. The Board is precluded from assigning an extraschedular rating in the first instance; however, the Board must specifically adjudicate the issue of whether referral for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) is warranted. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001). Upon review, the Board finds that the Veteran is not entitled to TDIU on an extraschedular basis. He has not claimed that he is unemployable based on loss of the portion of the maxilla only. See e.g. May 2015 VA Form 21-8940; June 2020 hearing transcript. Rather, the Veteran has claimed that he is unable to work due to his service-connected PTSD with major depression. The medical evidence also does not show that the Veteran is unable to obtain or maintain substantially gainful employment based on the loss of the portion of the maxilla. A June 2013 VA examiner noted that he had worked in concrete finishing and that he reported that he was grouchy and difficult to work with because of his oral pain. However, occupational impairment does not necessarily equate to unemployability. Indeed, there was no indication that the Veteran could not work due to that disability alone. Records from the Social Security Administration (SSA) also indicate that the Veteran has severe impairment resulting from anxiety, depression, insomnia, obesity, tinnitus, hearing loss, ocular migraines, restless leg syndrome, PTSD, and osteoarthritis of the basal right thumb joint. However, there was no mention of any oral disability. Based on the foregoing, the Board concludes that this case does not present any unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). Therefore, the Board finds that the Veteran is not entitled to TDIU on or after January 20, 2021. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.