Citation Nr: 21067333 Decision Date: 11/04/21 Archive Date: 11/03/21 DOCKET NO. 17-28 913 DATE: November 4, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity; his symptoms have not resulted in occupational and social impairment with deficiencies in most areas. 2. The Veteran does not meet the schedular criteria for a TDIU; there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1963 through October 1983, with service during the Vietnam era. For his meritorious service, the Veteran was awarded (among other awards) the Bronze Star Medal, the Army Commendation Medal, and the Vietnam Service and Campaign Medals. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In August 2020 the Board granted a rating of 50 percent for PTSD and denied entitlement to a TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's denial and remanded the matter to the Board for readjudication. 1. Entitlement to a disability rating in excess of 50 percent for PTSD Under the General Formula for Mental Disorders (General 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, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. For the reasons that follow, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. Under the General Rating Formula, 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. 38 C.F.R. § 4.130. 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. Id. 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; or memory loss for names of close relatives, own occupation or own name. Id. VA and private treatment records, the three VA examinations of record, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 50 percent rating (disturbance of motivation and mood, panic attacks, sleep impairment, memory loss, and difficulty in establishing and maintaining effective work and social relationships), and impaired impulse control a symptom associated with a 70 percent rating. He also had symptoms that are not listed with a specific rating, such as hypervigilance and easy startling. At the March 2015 and June 2016 VA examinations, the Veteran reported symptoms of recurrent distressing dreams, avoidance of external reminders associated with traumatic events, persistent negative state (depression and anxiety), diminished interest in activities, irritable behavior with angry outbursts, hypervigilance, exaggerated startle response and suspiciousness, mild memory loss, feelings of detachment or estrangement from others, and chronic sleep disturbance. Mental status examinations were normal. The examiners reported the Veteran's occupational and social impairment results in the 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. The Veteran reported that at his March 2015 VA examination, he advised the examiner he experienced panic attacks, obsessive compulsive behavior, no relationships, difficulty in certain situations, significant memory loss, and thoughts of anger and irritability. See May 2015 notice of disagreement. This information was not in the March 2015 VA examination. Most recently, the Veteran underwent a VA examination in February 2020. The VA examiner found that the Veteran's occupational and social impairment was unchanged from the March 2015 and May 2016 VA examinations. The Veteran reported marrying in September 2019. He reported that his home and family life is strong and supportive. He reported he is moderately socially active but that he also can be isolated and withdrawn. For example, he will go out to eat two to three times per week, but he has such difficulty getting along with the general public that he closed his bar in August 2018. The VA examiner reported the Veteran has recurrent, involuntary distressing memories, intense or prolonged reactions to cues that resemble traumatic events, avoidance of distressing memories, markedly diminished interest in activities, feelings of detachment or estrangement, persistent inability to experience positive emotions, hypervigilance, concentration issues, sleep disturbances, anxiety, depression, and disturbances of mood and motivation. The VA examiner reported the Veteran's PTSD symptoms moderately impair his ability to work with co-workers, supervisors, and the public; mildly impair his ability to focus, follow directions, comprehend, analyze, and remember information; and mildly impair his ability to maintain task persistence and pace, and maintain a regular work schedule. The VA examinations from March 2015, June 2016, and February 2020 all reflect a disability picture that is commensurate with the 30 percent rating currently assigned. However, the Veteran has offered competent testimony as to a more severe disability picture than that assessed by his VA examiners. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In his May 2015 notice of disagreement, he reported he suffers from panic attacks, obsessive compulsive behavior, memory loss, anger, irritability, and has no relationships. He testified at his VA hearing that he receives private treatment for his PTSD, and he suffers from panic attacks and memory loss. He has consistently reported symptoms of nightmares, chronic sleep impairment, and mood disturbances. His private treatment records reflect he sleeps with a weapon. The Veteran also reported that he has a few friends who are also Veterans and that he recently got married. He stated he isolates himself and can be withdrawn at times. Regarding the Veteran's statement that he has no social relationships, the Board notes that this symptom is consistent with the 70 percent criteria of inability to establish and maintain effective relationships. However, his statement is inconsistent with the preponderance of the evidence. At all three VA examinations of record, the Veteran reported having a circle of friends and being able to engage in social activities outside of the home, even though he sometimes isolates himself. Thus, while the Board finds the Veteran's May 2015 notice of disagreement reflects a more severe level of functioning than reflected in the VA examinations, the totality of the evidence indicates that the Veteran is not altogether unable to establish relationships. The Board also acknowledges the March 2015 VA examiner's notation regarding irritable behavior and angry outbursts, and the argument at the December 2019 Board hearing that this constitutes impaired impulse control consistent with a 70 percent rating. However, the evidence indicates that the frequency, severity, or duration of his irritability and outbursts are not commensurate with the 70 percent rating criteria. For example, at all three VA examinations the Veteran denied any legal trouble or episodes of violence. Further, he was able to maintain operations of his bar until late 2018, indicating an ability to maintain adequate impulse control around members of the general public. The Board thus finds the severity, frequency, and duration of the Veteran's symptoms of irritable behavior, angry outbursts, easy startling, and hypervigilance more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that he has modified his activities due to these symptoms, such as sitting with his back against the wall in public places and socially isolating. However, as above, he engages in activities outside the home on a regular basis. Further, hypervigilance and easy startling are similar to panic attacks and disturbance of mood, which are contemplated by the assigned 50 percent rating. Therefore, on balance, the Board does not find that these symptoms, considered alongside his other reported and observed symptoms, are of the frequency, severity, or duration to approximate those described by the 70 percent rating. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations at the March 2015 and May 2016 VA examinations were normal. At the February 2020 VA examination, mental status examination revealed dysphoric mood with congruent affect but was otherwise normal. As above, the Veteran engages in regular social activity outside of the house and describes his relationships as strong and supportive. The Board acknowledges the Veteran's testimony that his inability to interact with others resulted in him having to close his business in August 2018. However, as above, the February 2020 VA examination opined that the Veteran is occupationally impaired, at worst, to a moderate degree in his ability to work cooperatively and effective with co-workers, supervisors, and the public. Accordingly, considering the February 2020 VA examiner's comments, as well as the other evidence above, the Board finds the level of the Veteran's impairment does not more nearly approximate the 70 percent rating criteria. Thus, in summary, the Board finds that, for the entire appellate period, the Veteran's PTSD symptoms and the occupational and social impairment most closely approximate those described by the 50 percent rating. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a disability rating in excess of 50 percent for PTSD, the doctrine is not for application. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran seeks a TDIU. He contends that he had to close his business due to his PTSD symptoms. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran has the following disabilities that are service connected: PTSD (rated 30 percent from April 2008 and 50 percent from July 2014); dermatitis (rated 20 percent from August 1988); tinnitus (rated 10 percent since July 2014); and right ear hearing loss and hemorrhoids, both rated as noncompensable from November 1984. The Veteran's combined rating for the appellate period is 60 percent. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). For the reasons that follow, the Board finds that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities, and therefore referral of the claim is not warranted. As an initial matter, the Board notes that the Veteran has not submitted a completed VA Form 21-8940 and/or a statement with comparable information. The record also contains conflicting information regarding the Veteran's employment and when he stopped working. The March 2015 VA examination reflects that the Veteran sold his bar in approximately 2011, but at his December 2019 Board hearing he testified that he closed his bar in August 2018 due to problems interacting with customers. See also February 2020 VA examination. The Veteran's February 2020 VA examination discussed the impact of his PTSD on his ability to perform job-related tasks. The VA examiner concluded that the Veteran is occupationally impaired, at worst, to a moderate degree in his ability to work with others. Additional noted occupational limitations were marked as mild. There is no competent evidence that the Veteran's other service-connected disabilities contributed to an inability to secure or follow a substantially gainful occupation. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate when asked for information to substantiate his claim. Importantly, the Veteran and the undersigned VLJ discussed at length on the record at his hearing the requirements for a TDIU and the importance of submitting information to aid the Board in its inquiry. Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. Accordingly, referral of the claim for a TDIU is not warranted. A TDIU is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.