Citation Nr: 21068104 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-17 443 DATE: November 9, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's PTSD is characterized by occupational and social impairment with deficiencies in most areas; however, it is not characterized by symptoms resulting in total social and occupational impairment. 2. The evidence supports a finding that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In November 2019, the Board remanded this appeal to the RO for additional development and consideration. REFERRAL In the August 2021 Appellate Brief, the Veteran's representative raised for the first time the issues of entitlement to service connection for erectile dysfunction; chronic obstructive pulmonary artery disease (COPD); heart disease, to include coronary artery disease and hypertension; and back and knee disorders, all of which are claimed secondary to the Veteran's service-connected PTSD, without any competent evidence to demonstrate that there is a connection between the Veteran's service-connected PTSD and the aforementioned disabilities. Notably, VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021). However, the Veteran is raising these issues for the first time and there is no indication that they are within the scope of the Veteran's PTSD increased rating claim. While the representative has submitted links to medical articles, there is no evidence that they pertain to the Veteran's specific disability picture. Given such, without some indication of a connection, the Board finds the claims are not within its jurisdiction and the proper adjudicative action is for referral of the claimed disorders to the RO for additional action. Entitlement to service connection for (i) erectile dysfunction; (ii) chronic obstructive pulmonary artery disease OPD; (iii) heart disease, to include coronary artery disease and hypertension; and (iv) back and (v) knee disorders are referred to the RO for appropriate action., Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2020); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2020). The Veteran asserts that his PTSD warrants a rating in excess 70 percent for the entire period on appeal. Specifically, the Veteran's representative argued that he is entitled to a 100 percent rating or, alternatively, a TDIU due to the severity of his PTSD. See August 2021 Appellate Brief. Here, the appeal arises from the Veteran's July 16, 2014 filing of a VA Form 21-8940, Application for Increased Compensation Based on Unemployability based, in part, on the service-connected PTSD. Therefore, the relevant temporal period for consideration is from July 16, 2013. Also, during this appeal period, from November 13, 2013, to January 1, 2014, the Veteran was in receipt of a temporary 100 percent rating pursuant to 38 C.F.R. § 4.29. Effective from January 1, 2014, he was assigned a 70 percent rating for his PTSD, which was the rating in effect at the time he filed his VA Form 21-8940 in July 2014. The Veteran is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. When rating psychiatric disorders, the use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Under the General Rating Formula, the criteria for a 50 percent rating requires 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. 38 C.F.R. § 4.130. 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. Id. 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 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. Id. VA implemented the DSM-5, effective August 4, 2014, and determined that the DSM-5 applies to claims certified to the Board on and after August 4, 2014. See Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093-94 (Aug. 4, 2014). As the Veteran's claim was originally certified to the Board in April 2018, the DSM-IV is not for application in this case. Given such, the Board will afford no probative value to the GAF scores mentioned in the record, and does not consider them for purposes of assigning a psychiatric rating in this appeal. Golden v. Shulkin, 29 Vet. App. 221, 226 (2018). Turning first to the medical evidence of record, the Veteran was examined by VA in April 2014. See April 2014 PTSD Disability Benefits Questionnaire (DBQ). At that time, the Veteran reported hypervigilance, using a machete to check the perimeter of his home, anxiety, depression, sleep problems, occasional nightmares, and suicidal and homicidal ideation without intent. On mental status examination, the VA examiner found the following symptoms: depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal/ homicidal ideation. The examiner determined the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. Regarding employability, the examiner noted that the Veteran was not precluded from employment due to his PTSD, but stopped working 10 years ago due to physical orthopedic problems. The Veteran was next examined by VA in March 2015. See March 2015 PTSD DBQ. At that time, the Veteran reported nightmares, night sweats, chronic sleep impairment, irritability, persistent rumination and restlessness, avoidance of crowds, auditory and visual hallucinations, and fatigue. He denied suicidal and/or homicidal thoughts. On mental status examination, the VA examiner found the following symptoms: anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner specifically noted that the Veteran denied auditory and visual hallucinations, which is inconsistent with the symptoms noted at the beginning of the examination. The examiner determined the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. Regarding employability, the examiner noted there was no change from the April 2014 examination. The Veteran was next examined by VA in December 2019. See December 2019 PTSD DBQ. The examiner noted the Veteran experiences the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner also noted the Veteran's thought processes were logical and goal oriented, and he denied hallucinations, delusions, or suicidal ideations. The examiner determined the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas. The Veteran was most recently examined by VA in June 2021. See June 2021 PTSD DBQ. The examiner stated the Veteran has been receiving two medications for mental health issues for the past 10 years and was not receiving counseling. The examiner noted the Veteran experiences the following symptoms: depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner also noted the Veteran denied paranoia, obsessions/ compulsions, hallucinations, delusions, or suicidal ideations. The examiner determined the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. Regarding employability, the examiner stated that the Veteran had a catering business from home, for a couple of years but stopped working approximately one year ago due to his hands trembling and chin twitching. Further, the examiner stated that the Veteran may engage in employment environment that is non-physical, sedentary work, with minimal social interaction. Also, of record are VA treatment records that show mental health treatment through March 2021. These records show the Veteran's treatment for his PTSD, to include his use of prescription medications. They are largely duplicative of the objective mental findings noted during the several VA examinations during the appeals period. However, the Board does note that a December 2013 VA treatment record shows the Veteran experienced transient suicidal thoughts, which is the earliest indication of suicidal ideations during the appeals period. The Board also notes that the symptoms listed in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. VazquezClaudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Here, the preponderance of the evidence is against an evaluation in excess of 70 percent since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record during the appeal period. The evidence does not show that the Veteran has total occupational and social impairment. In fact, in this case, the Board notes that the Veteran has experienced some auditory and visual hallucinations (see again March 2015 PTSD DBQ) and reports of carrying a machete around his house. Specifically, the Veteran and his wife have both submitted statements attesting to the Veteran's symptoms of depression, nightmares, flashbacks, irritability, hearing voices, and "seeing dead people." See Statements in Support of Claim dated September 2013, December 2013, April 2014, and October 2020. However, the evidence does not demonstrate that his hallucinations are persistent, especially where he denies hallucinations in the June 2021 VA PTSD DBQ, where he is not found to have such in the December 2019 PTSD DBQ. Notably, in the March 2015 PTSD DBQ, hallucinations are mentioned in the history, but he is not found to have this symptom at the time of the examination. Essentially, the Board in no way wishes to diminish the severity of the Veteran's PTSD; however, when considering the totality of his symptomology, the Board finds that it is contemplated by his currently assigned 70 percent rating. More importantly, however, he has never attested to suffering from gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place, or suffering from more than mild memory loss. In fact, to the contrary, he has repeatedly denied the majority of the symptoms above required for the higher 100 percent rating. See again April 2014, March 2015, December 2019, and June 2021 PTSD DBQs. In reaching the above conclusions, the Board has not overlooked the Veteran's or other lay statements found in the record and as discussed above. In this regard, the Veteran and his wife are certainly competent to report how he believes his PTSD has affected his life, including describing his symptoms. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, the Board finds more competent and credible the medical opinions provided by the VA examiners as discussed above, in rendering a decision as to the severity of the Veteran's PTSD based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his several VA examinations conducted throughout the appeal period. In fact, the Veteran's lay statements were included in the VA examinations discussed above and considered by the multiple VA examiners when discussing the cumulative impact of the Veteran's PTSD on his social and occupational functioning. See again April 2014, March 2015, December 2019, and June 2021 PTSD DBQs. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the assignment of any ratings higher than those currently assigned, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to a TDIU In a July 2021 rating decision, the RO denied entitlement to a TDIU on the basis that the claim is moot due to the combined rating of 100 percent for the Veteran's service-connected disabilities, effective May 26, 2021. However, the Board notes that the combined 100 percent rating would generally not moot the TDIU issue, if TDIU could be awarded for a single disability which could result in the award of special monthly compensation (SMC). See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), Buie v. Shinseki, 24 Vet. App. 242 (2010). Further, the issue of entitlement to a TDIU has been reasonably raised by the record as it is part and parcel to the increased rating claim for PTSD. Therefore, the appeals period for the TDIU claim is the same as the PTSD claim, so from July 16, 2014. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (holding that TDIU is not a separate issue that must be raised with specificity; rather, it is a component of an increased rating claim). A total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In relevant part, the Veteran filed his application for a TDIU, VA Form 21-8940, in July 2014, which also served as the basis for his increased rating for PTSD. For the entire pendency of this appeal, the Veteran has been in receipt of a 70 percent rating for PTSD. The Veteran is also presently rated at 60 percent for diabetic nephropathy, 20 percent disabling for diabetes, 20 percent for each the bilateral upper and lower extremity diabetic neuropathy, and a noncompensable rating for onychomycosis of the toenails. Therefore, for the entire period on appeal, he meets the schedular criteria. In the Veteran's July 2014 application for a TDIU, VA Form 21-8940, he indicates that he last worked full time in 1973 with Teledyne aircraft company. He was unable to recall any other information regarding employment history. The Veteran indicated his income was zero for the past year. The highest level of education the Veteran has received is 4 years of high school, and he has not had any other training. In a subsequent February 2015 VA Form 21-8940, the Veteran reported last working full time in 2002, when he was employed by Walmart as a receiver. The report of the April 2014 PTSD DBQ noted that the Veteran was not precluded from employment due to his PTSD, but stopped working 10 years ago due to physical orthopedic problems. The March 2015 PTSD DBQ examiner noted occupational and social impairment with reduced reliability and productivity. It was also indicated there was no change from the April 2014 examination report regarding employability. The December 2019 VA PTSD DBQ found the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas. He reported employment history of working at the Walmart distribution center in the late 1990s for two years loading and unloading trucks, then working for KLM as an apprentice for several years. No further comment was provided. A June 2016 VA Individual Unemployability Statements for diabetes, diabetic neuropathy, and kidney conditions all indicated the Veteran is able to perform light work. This encompasses exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. The June 2021 VA PTSD DBQ indicated the Veteran's PTSD results in occupational and social impairment with reduced reliability and productivity. He also reported that he had a catering business from home but stopped working approximately a year ago due to trembling hands and chin twitching. The VA examiner concluded that the Veteran "may engage in employment environment that is nonphysical, sedentary work, with minimal social interaction." The accompanying June 2021 VA Individual Unemployability Statement for PTSD concluded that the Veteran has limited tolerance being around many people and reports functional limitations due to physical /mobility issues. The examiner therefore stated that the Veteran could function in a tailored work environment with nonphysical, low stress, sedentary work which involves minimal social contact. Lay statements submitted by the Veteran's wife in October 2020 indicated the Veteran cannot remember anything and she handles all of their finances. Also, in the claims file are records from the Social Security Administration (SSA) indicating the Veteran is disabled due to a lumbar spine disorder and hypertension. However, neither of these disorders are service connected. The Board finds that there is competent and probative evidence that shows the Veteran's disabilities, in combination, cause him to have difficulty with working with other people, and coping with the demands of a work environment. Here, given the fact the Veteran is unemployed and has been so during the pendency of this appeal (aside from a short term venture with a catering business), and due to the nature of his past employment as one requiring physical capabilities, the evidence of record establishes entitlement to TDIU. Notably, the Board has considered whether any one service-connected disability has rendered the Veteran unemployable and finds that the record, at this juncture, does not clearly indicate that to be the case. Specifically, the evidence of record reflects that the Veteran's psychiatric disability makes it difficult to adapt to stressful situations in a work-like setting, but it does not state that he is unemployable in such a situation. See April 2014, March 2015, December 2019, and June 2021 VA PTSD DBQs. TDIU may meet the requirement of a disability rated as 100 percent disabling for purposes of section 1114(s)(1) only if the veteran's unemployability is based on a single condition. Youngblood v. Wilkie, 31 Vet. App. 412, 415 (2019); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). As to the impact of his diabetes and associated complications, to include nephropathy and bilateral upper and lower extremity disabilities, it is considered challenging, but alone, does not rise to the level of unemployable. In fact, the June 2021 Individual Unemployability Statements indicated that the Veteran was able to work, albeit, with restrictions. Nevertheless, the evidentiary standard for TDIU opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific Veteran would be so precluded as a result of service-connected disabilities. Hence, affording the Veteran the benefit of the doubt, the claim is granted. 38 U.S.C. § 5107 (b). (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.