Citation Nr: 21067897 Decision Date: 11/06/21 Archive Date: 11/06/21 DOCKET NO. 17-24 674 DATE: November 6, 2021 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms do not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. The Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment consistent with his level of education and prior work history. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 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, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Vet was scheduled for a hearing before the Board in October 2021, but did not appear as scheduled. As he has not provided good cause for the failure to appear, the appeal will be adjudicated based on the evidence of record. 1. Entitlement to a rating in excess of 30 percent for PTSD Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's service-connected PTSD is currently assigned a 30 percent rating from April 20, 2015. Under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, a 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, 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). The criteria for a 50 percent rating are 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. The criteria for a 70 percent rating are 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. Finally, the criteria for a 100 percent rating are 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 ability 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to 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 (2002). Evidence A VA examination was conducted in May 2015. The examiner characterized the severity of the Veteran's PTSD as: a mental condition had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran reported that since his wife's death several years ago he had lived by himself. He saw his two children and three grandchildren at least once a week. the Veteran reported that he felt close to his children and got along with them well. In his free time he liked to go out on his boat or spend time at the VFW post or the Moose Lodge. The Veteran reported that he went to the VFW two to three times a week and to the Moose Lodge two to three times a week. He indicated that he had several acquaintances at both places who he met up with there. He also spent time on his computer. Prior to his brother-in-law's death two months ago, he often spent time with him and was very close with him. The Veteran indicated that he was able to do most of the social things and activities that he wanted to engage in. The examiner noted that the Veteran had been retired since 2008 or 2009 due to medical reasons. He was not working at present or doing any volunteering. The Veteran reported that he is doing well for the most part, and reported only minimal mental health symptoms. The Veteran had not sought any mental health treatment since his last examination in 2012. The examiner noted symptoms of suspiciousness and mild memory loss, such as forgetting names, directions or recent events. On examination, the Veteran was appropriately dressed and groomed. He was alert throughout the evaluation, and was oriented to person, place, and time. Speech was normal in rhythm, rate, tone, and volume. Content was coherent and goal directed. Affect was full range and appropriate, and his mood appeared to be stable and euthymic. There was no evidence of hallucinations or delusions. Cognitive functioning was grossly intact. Insight and judgment were fair. The Veteran denied suicidal and homicidal ideation, plan, and intent. He denied self-injurious behavior. The examiner stated that the Veteran continued to meet criteria for a diagnosis of PTSD stemming from his combat exposure. His symptoms continued to fall within the mild range. The Veteran indicated that he got occasional nightmares about combat experiences and was sometimes triggered to remember them (e.g., when someone discusses combat at the VFW). He indicated that when the memories arose he avoided them, "I brush them aside and just get rid of it." The Veteran also described "living a controlled life," and he noted that he did not often go out shopping to avoid dealing with people. At restaurants he always sat with his back to a wall. Despite this, the Veteran indicated that he was able to do everything that he would like to be able to do. The examiner noted that Veteran retired because of medical, rather than mental health reasons, and at present he was able to engage in all of the necessary activities of daily living to take care of himself with minimal interference from his symptoms. On VA examination in May 2016, the Veteran reported no further progression of PTSD symptoms since his last examination in May 2015. The examiner characterized the severity of the Veteran's PTSD as: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported an absence of significant impairment in terms of his social functioning from what was reported in the previous examination. The examiner noted that the Veteran had no work-related history since his last exam. "The following symptoms would result in mild or transient impairment in terms of occupational functioning without consideration of his physical conditions which do result in greater impairment: transient but recurrent feelings of heighted hypervigilance and anxiety, chronic sleep disturbances due to intrusion-based dreams, mild cognitive impairment, and periods of isolative behaviors. The degree of limitation in three functional areas related to employment (activities of daily living; social functioning; and, concentration, persistence or pace) is appraised using a five point scale: None, Mild, Moderate, Marked, Extreme. This Veteran receives a rating of "mild" in all three domains due to his service-connected diagnosis of PTSD." The examiner endorsed the following PTSD symptoms: Anxiety, suspiciousness, chronic sleep impairment, and flattened affect. The examiner noted that there was no evidence of tangential thought process, loose associations, or psychotic symptoms including auditory/visual hallucinations, paranoid ideation or ideas of reference. The Veteran denied suicidal or homicidal ideation including plan, intent, preparatory behaviors, or attempts (failed, aborted, or interrupted). Analysis The VA examinations show that the Veteran's PTSD has been manifested by symptoms associated with a 30 percent rating, including some anxiety, chronic sleep impairment, mild memory impairment, and suspiciousness. The May 2016 examiner endorsed a symptom associated with a 50 percent rating, flattened affect. However, the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran's other remaining symptoms were contemplated by a 30 percent rating. Further, the VA examiner in May 2015 described the Veteran's PTSD symptoms as mild and noted that the Veteran was able to do everything that he would like to be able to do. In fact, the examiner specifically indicated that the Veteran's level of occupational and social impairment is best summarized as 'a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.' The Board notes that this is level of impairment is consistent with a noncompensable rating and does not support the assignment of a 50 percent rating or higher. The May 2016 examiner also described the Veteran's symptoms as mild. That examiner indicated that the Veteran's level of occupational and social impairment is best summarized as 'occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.' The Board notes that this is consistent with the Veteran's current 30 percent rating and does not support the assignment of an even higher rating. The Veteran was noted to visit the VFW post and the Moose Lodge several times per week and to socialize with acquaintances at those locations. He also had good relationships and frequent contact with his children and grandchildren. While the Veteran reported avoiding shopping to not have to deal with people, he did sometimes eat in restaurants, and he reported that he was able to do everything that he would like to be able to do. The Veteran has not worked since 2009, but he was noted to have retired due to physical problems rather than psychiatric symptoms. The VA examiners did not endorse any serious occupational impairment associated with PTSD. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms have resulted in the level of impairment required for a higher 50 percent rating. The criteria for a 50 percent or higher rating are not met and the appeal must be denied. 2. Entitlement to a TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply 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. Id. The noneconomic component requires a determination as to a Veteran's ability to secure and follow such employment. Id. Attention should be given to the Veteran's history, education, skills, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the Veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16 (a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran is service-connected for PTSD, evaluated as 30 percent disabling; and ischemic heart disease, evaluated as 60 percent disabling. His combined rating is therefore 70 percent. See 38 C.F.R. § 4.25. Thus, the Veteran meets the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16 (a). However, the Board must still determine whether the Veteran's service-connected disabilities result in impairment so severe that he is unable to secure or follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. The evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities. The United States Court of Appeals for Veterans Claims (Court) has promulgated additional guidance to assist in the evaluation of claims for TDIU in Ray v. Wilkie, 31 Vet. App. 58, 71 (2019). The Court stated that: "[W]e interpret the phrase "unable to secure and follow a substantially gainful occupation" in [38 C.F.R.] § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply 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. As for the noneconomic component, the Secretary himself states that 'determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold,' and 'the ultimate inquiry is instead on the individual claimant's ability to secure or follow that type of employment'." Factors for consideration in evaluating the noneconomic component are: (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 (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with possibly relevant factors including, but not limited to, the limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. With regards to the economic component of the Ray analysis, in the Veteran's formal application for entitlement to TDIU (VA Form 21-8940) dated in March 2016, the Veteran reported that he had completed four years of high school, and had last worked from 2004 to 2009 as a Maintenance Supervisor. The Veteran listed the disabilities that prevented him from following a substantially gainful occupation as ischemic heart disease and PTSD. He stated: "I am unemployable to include both sedentary and physical employment due to the severity of my-service connected Ischemic Heart Disease and PTSD." A VA Form 21-4192 noted that the Veteran had retired in June 2009 from his position as a plant maintenance foreman. The Board finds the Veteran met the economic component of a TDIU grant under the guidelines set forth in Ray as of 2009 as he has not been shown to be earning income since that time. Regarding mental activities, a VA psychiatric examination in May 2015 noted that the Veteran had been retired since 2008 or 2009 due to medical reasons. The examiner noted that the Veteran's PTSD symptoms were not severe enough to interfere with occupational functioning. The VA psychiatric examiner in May 2016 characterized the PTSD symptoms as productive of occupational impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner thus did not find that the Veteran's service-connected PTSD symptomatology would prevent his ability to perform or engage in occupational activities such that substantially gainful employment would be precluded. Based on these findings, the Board concludes that the Veteran has the mental ability to perform the activities required by a job equivalent to his prior occupation of plant maintenance supervisor. The Board acknowledges that the Veteran's ischemic heart disease would impact or limit his ability to work in this field to some extent, but not significantly enough to preclude employment. A VA general medical examination in May 2012 noted that the Veteran "stopped working as a supervisor in June 2009 mostly because of problems with his neuropathy." On VA heart examination in May 2016, the examiner stated that the Veteran's service-connected heart disability impacted his ability to work in that he "cannot perform prolonged strenuous physical activities." There is no competent medical evidence to show that the Veteran's ischemic heart disease would preclude him from performing the mental or physical requirements associated with a job as a plant supervisor, as the May 2016 examiner noted fatigue associated with an activity level consistent with activities such as walking one flight of stairs, golfing (without cart), mowing lawn (push mower), or heavy yard work (digging). The examiner did not note other symptoms such as shortness of breath or chest pain associated with this activity level. The evidence has also shown that the Veteran is not precluded from working in less physical or non-physically intensive environments, such as in an office environment, or in working conditions that do not require significant walking or other exertion. There is no persuasive evidence of record demonstrating or suggesting that the Veteran is unemployable as a result of his service-connected disabilities. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In sum, there is no persuasive evidence of record demonstrating that the Veteran's service-connected disabilities alone render him unable to obtain and retain substantially gainful employment, nor is the evidence in a state of equipoise on that question. The Veteran's claim for a TDIU is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.