Citation Nr: 21067212 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-28 731A DATE: November 3, 2021 ORDER A 50 percent disability rating since July 20, 2016, for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since July 20, 2016, is denied. FINDINGS OF FACT 1. Since July 20, 2016, the Veteran's PTSD disability manifested as occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; panic attacks; disturbances in motivation and mood; depressed mood; anxiety; suspiciousness; and chronic sleep impairment. 2. The record indicates the Veteran is currently employed. CONCLUSIONS OF LAW 1. Since July 20, 2016, the criteria for a disability rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.10, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2001 to August 2005. The case was remanded in March 2019 for evidentiary development and a supplemental statement of the case (SSOC). All actions ordered by the remand have been accomplished. Increased Ratings Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Mental Disorders The General Rating Formula for mental disorders is as follows: A 100 percent rating is assigned 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. A 70 percent rating is assigned for 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 50 percent rating is assigned 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; difficulty in establishing and maintaining effective work and social relationships. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See Id. VA must consider all symptoms of a claimant's disorder that affect his or her occupational and social impairment. See Id. at 443. If the evidence demonstrates that a claimant has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the claimant's symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See Id.; see also VazquezClaudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). 1. Entitlement to a disability rating in excess of 30 percent since July 20, 2016, for PTSD The Veteran his application for an increased rating for PTSD on July 2016. Prior to the filing of the current claim, the Veteran's PTSD disability has been evaluated as 30 percent disabling under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130, DC 9411. April 2016 VA mental health notes indicate the Veteran reported anxiety after returning from deployment that had increased over the past year. He also noted increased irritability, unprovoked anger, difficulty sleeping, and panic attacks. The examiner noted the Veteran endorsed sleep disturbances, intrusive distressing memories, avoidance behaviors, irritability, and hypervigilance. June 2016 VA mental health notes indicate the Veteran reported work-related and marital stressors, and that he wished to pause trauma-based therapy until these other life stressors resolved. He also reported a desire to increase his alcohol intake to cope with stress but instead increased exercising as a way to cope. A separate psychiatric examiner noted the Veteran demonstrated an anxious mood, depression, and a congruent affect but otherwise normal mental status. July 2016 VA mental health notes indicate the Veteran returned to trauma-based therapy after a short hiatus to deal with other stressors. The examiner noted the Veteran demonstrated an affect consistent with an anxious mood but otherwise normal mental status. At an August 2016 VA medical examination, the examiner diagnosed the Veteran with moderate PTSD. The Veteran reported increased sleep disturbances and anger, and that he recently began individual and group therapy in response to these increases in severity of symptoms. The examiner noted the Veteran endorsed depressed mood; anxiety; panic attacks that occur weekly or less often; and chronic sleep impairment. The examiner also noted the Veteran demonstrated moderate elements of depressed mood; variable affect that trended toward flat when discussing anxiety; difficulty in crowds; with an otherwise normal mental status. In an August 2016 opinion, the examiner noted the Veteran's sleep disturbance was at least as likely as not proximately due to his PTSD. The examiner noted that sleep disturbance was a symptom that supported the diagnosis of PTSD under the criterion for arousal, and that no reason other than to treat the Veteran's PTSD-related sleep disturbance symptom was given for this prescription. The examiner also opined the Veteran's PTSD disability manifested as 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. In a January 2017 statement, the Veteran reported that his symptoms were severe enough to impair his work, family life, judgement, thinking, and mood, and that he warranted a 50 percent evaluation. In a June 2017 statement the Veteran reported weekly panic attacks, memory impairment, and disturbances in motivation and mood. August 2017 VA treatment records indicate the Veteran moved from Texas to Oklahoma due to his job and that he wanted to restart mental health counseling sessions. He endorsed occasional nightmares and flashbacks; anxiety in crowds and other symptoms of hypervigilance; and mood fluctuations. He denied panic attacks, hopelessness, and suicidal ideation. In October 2017 the Veteran endorsed gory dreams, hypervigilance symptoms, and crowd avoidance; and denied any worsening in his depression symptoms. In November 2017 the Veteran continued to endorse symptoms such as nightmares, flashbacks, hypervigilance symptoms, irritability, mood fluctuations, and anxiety. January 2018 VA treatment records indicate the Veteran endorsed nightmares, flashbacks, symptoms of hypervigilance, irritability, and occasional mood and anxiety symptoms. In March 2018 the Veteran continued to report similar symptoms and requested medication for increased anxiety. Private January 2019 counseling records indicate the Veteran reported increased marital difficulties, improved work circumstances, less motivation, reduced sex drive, and difficulty showing affection. He continued to endorse underlying feelings of moodiness, anxiety, and difficulty in crowds. November 2019 VA treatment records indicate the Veteran reported no VA counseling sessions since March 2018 due to work-related travel. He also reported getting a new job that was less stressful. He continued to endorsed symptoms such as nightmares, flashbacks, hypervigilance, irritability, mood fluctuations, and anxiety. January 2020 VA treatment records indicate the Veteran reported nightmares, night sweats, anxiety, and the need to adjust his anxiety medication. In March 2020 he reported feeling down; having a low mood; and occasional nightmares and night sweats. Private April 2020 counseling records indicate the Veteran was separating from his wife; had difficulty expressing his emotions, which resulted in increased depressive symptoms and withdrawal; lack of motivation; and poor sleep. May 2020 VA treatment records indicate he reported mood fluctuations, anxiety- and trauma-related symptoms, and compliance with medication. Private August 2020 counseling records indicate the Veteran reported improved sleep with occasional nightmares. Since July 20, 2016, the Veteran's PTSD disability manifested as occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; panic attacks; disturbances in motivation and mood; depressed mood; anxiety; suspiciousness; and chronic sleep impairment and warrants a 50 percent rating. A higher evaluation is not warranted because the Veteran's disability did not manifest with symptoms such as suicidal ideation; obsessional rituals; speech that was intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to functional independently, appropriately, and effectively; impaired impulse control such as unprovoked irritability with periods of violence; spatial disorientation; or neglect of personal hygiene and appearance. Given these facts, the Board finds that the Veteran's PTSD disability warrants a 50 percent evaluation during the relevant period. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to TDIU since July 20, 2016 A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2016). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. In its March 2019 decision the Board inferred a claim for TDIU based on the Veteran's January 2017 statement that his PTSD disability affected his work. The regional office (RO) sent the Veteran the appropriate evidentiary development notices and requested information to process a claim for TDIU. The Veteran did not respond with any information about his employment, and in a July 2020 rating decision the RO denied the claim because the record indicated the Veteran was currently gainfully employed. (CONTINUED ON NEXT PAGE) The preponderance of the evidence is against granting entitlement to TDIU. The record continues to indicate the Veteran is currently gainfully employed. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.