Citation Nr: 21068708 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-00 140 DATE: November 12, 2021 ORDER Entitlement to an initial disability rating greater than 70 percent for service-connected posttraumatic stress disorder (PTSD) is denied. Beginning March 1, 2020, entitlement to total disability based on individual unemployability (TDIU), is granted. FINDINGS OF FACT 1. The Veteran's service-connected PTSD manifests no more than occupational and social impairment in most areas. 2. Beginning March 1, 2020, the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating greater than 70 percent for service-connected PTSD are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 2. Beginning March 1, 2020, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1984 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A Board hearing was conducted in conjunction with the RO in Winston-Salem, North Carolina. A transcript of this hearing is contained within the electronic claims file. In a June 2018 Decision, the Board, among other things, remanded the PTSD claim so that the agency of original jurisdiction (AOJ) could obtain outstanding VAMC records and afford the Veteran an updated PTSD examination. The additional records were secured in October 2018 and December 2019, and a new examination was performed in April 2020, all of which will be discussed below. In a February 2021 Decision, the Board noted that the Veterans Law Judge (VLJ) that conducted the hearing and issued the prior Decision no longer was employed at the Board. It further noted that the Veteran was afforded the opportunity for an additional hearing, but he declined that option. The Board took jurisdiction of the TDIU issue, and remanded both for further development. This time, the AOJ was to make efforts to obtain private treatment records identified by the Veteran at his hearing. The AOJ also was to develop and adjudicate the TDIU issue. In March 2021, the AOJ sent to the Veteran all the forms necessary to identify any private treatment he has received for PTSD not yet associated with the claims file, and it again asked him in July 2021 to submit any relevant treatment records. He never completed and returned any of those forms. Thus, the Board finds that the AOJ has fulfilled its statutory duty to assist the Veteran in this regard. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Thus, with respect to both Decisions' remand directives, the Board finds that the AOJ substantially has complied, permitting the Board to readjudicate this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran originally filed for service connection for his PTSD in his July 22, 2010, VA Form 21-526EZ. The June 2012 Rating Decision now on appeal awarded the Veteran service connection; he was assigned a 10 percent rating effective July 22, 2010. After the AOJ conducted the examination ordered by the Board's June 2018 Decision, it awarded via an August 2020 Rating Decision a 70 percent rating effective July 22, 2010. Thus, the issue is as it appears on this Decision's first page. The Veteran continued this appeal, believing he is entitled to an initial disability rating greater than 70 percent. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. ." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. For psychiatric disabilities, a 100 percent disability rating contemplates 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. 38 C.F.R. § 4.130. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant a particular rating, but are not meant to be exhaustive, and the Board need not find all, or even some, of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). If the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a specific rating, the appropriate, equivalent rating will be assigned. Id. at 443. The rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). VA is precluded from differentiating between the symptoms of the Veteran's service-connected PTSD and those of her other mental disorders in the absence of clinical evidence that clearly shows such a distinction. Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). Furthermore, because all psychiatric disorders (excluding eating disorders) are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran's overlapping psychiatric symptoms, however diagnosed. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). A VA medical center (VAMC) mental health consult from August 2010 shows that the Veteran lives with wife and son. He was working at a prison for the last several years. Within the last year, his sleep has been disrupted, to include waking up several times per night due to nightmares. He is hypervigilant and sensitive to noises in the night and finds himself more irritable at home and work. In February 2011, another consult noted continued complaints of poor sleep and nightmares, as well as endorsement of being on guard and distant from most people, a quick temper, and not trusting others. An April 2012 VA Individual Diagnostic Interview for PTSD noted mental examination of the Veteran. He was diagnosed with PTSD with a history of depressive disorder. His social and occupation impact were noted, in the Veteran's own words, as "Since 1991 I have been divorced twice, sleep problems, some nightmares quick temper, it is very hard for me to trust someone, on guard a lot of the time, and don't walk behind me I stay to myself a lot." A May 2012 VA examination noted mental examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report confirmed the diagnosis of PTSD and added major depressive disorder, recurrent/moderate. The Veteran's social history noted his then-current second marriage of twelve years (although he and his spouse were separated at the time); the Veteran also reported a good relationship with all five of his children. The examiner did not discuss the Veteran's post-service occupational history. Noted symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work and a work-like setting), and disorientation as to time or place. Overall, the examiner opined that the Veteran experienced 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 stressor symptoms controlled by medication. On his July 2012 Notice of Disagreement (NOD), the Veteran continued to endorse sleeping problems, as well as suspiciousness/paranoia. At his hearing, he testified that he currently has trouble with sleeping, nightmares, and flashbacks. December 5, 2017, Hearing Transcript (Tr.) at 9. The Veteran did attest to symptoms of depression and anxiety but that those symptoms have gotten better with the use of his medication. Id. at 10. He also endorsed minor short-term memory loss. Ibid. A May 2018 VAMC entry notes symptoms of depression and anxiety over the past 5 years, worsening over the past year due to chronic medical problems and inability to maintain employment. An April 2020 VA examination noted mental examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report confirmed the diagnosis of PTSD. With respect to his social functioning, the Veteran noted that he has been increasingly irritable, which has an impact on his family relations. He avoids family activity and activities with others (such as church or the grocery store). He endorsed visiting about once a month only a few military friends. The Veteran reported that he stopped working two years ago because he no longer could tolerate pain. Noted symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work and a work-like setting), and neglect of personal appearance. The Board does not find that the Veteran's service-connected PTSD produces total occupational and social impairment. As to occupational impairment, the Veteran endorsed at the April 2020 VA psychiatric examination that he no longer was working because he could not "tolerate pain." While there is no distinction whether the Veteran meant physical or mental pain, the Board notes that the primary definition for the word "pain" refers to that of a physical nature; although, it sometimes can refer to mental pain. See Meriam-Webster's Collegiate Dictionary (11th ed. 2003) ("localized physical suffering associated with a bodily disorder (as a disease or an injury)"). Contra id. ("acute mental or emotional distress or suffering"). Nevertheless, the record does not disclose that his psychiatric symptoms alone would preclude employment of any sort. The record also does not disclose that the Veteran experiences total social impairment. True enough, he endorsed avoiding family interactions and activities with other people, but he confirmed that he makes an effort see to about once a month military friends. That fact alone precludes finding that his PTSD manifests total social impairment. While the record discusses the Veteran's symptoms of PTSD, there is nothing to support finding that they totally limit both his occupational and social functioning. Therefore, the Board finds that his current 70 percent rating is sufficient, and his appeal on this issue is denied. See 38 C.F.R. § 4.130, DC 9411. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A finding of total disability is appropriate 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(a)(1), 4.15, 4.16. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 3435 (1994). Where the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. Marginal employment, however, is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). VA, however, specifically has not defined the term "protected environment" despite being invited to do so by the United states Court of Appeals for Veterans Claims (CAVC). See Cantrell v. Shinseki, 28 Vet. App. 382, 391 (2017) ("[A]bsent an articulated standard for employment 'in a protected environment' that is capable of consistent application by VA and meaningful review by this Court, we cannot defer to the Secretary's decision not to define that term in § 4.16(a) (citing Hood v. Brown, 4 Vet. App. 301, 303 (1993))). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Because VA has failed to define it, the CAVC has offered guidance on what it means to "secure or follow" substantially gainful employment. This phrase includes both an economic and non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component requires that a veteran's income be lower than the federal poverty threshold. The non-economic component includes assessing a veteran's education, training, and work history, with the ultimate question being whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ibid. Because the Veteran alleged TDIU during the pendency of various initial increased rating claims, to include the current PTSD claim, the Board recognizes that the appellate period for TDIU mirrors that of the original claim for service connection for, among other claims, PTSD. See Payne v. Wilkie, 31 Vet. App. 373, 38889 (2019); Harper v. Wilkie, 30 Vet. App. 356, 35961 (2018); Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (per curiam). The Board also notes that, for the entire appellate period, the Veteran meets the schedular disability requirements for TDIU. See 38 C.F.R. § 4.16(a). In a November 2010 VA Form 21-4138, the Veteran stated that, since July 6, 2010, he has worked only four days. On his first formal application for TDIU (July 2012 VA Form 21-8940), he indicates that he worked from December 2006 to December 2010 as a corrections officer working sixty hours per week; from September 2011 to June 2012, he worked as a custodian working thirty-two hours per week. In a September 2012 VA Form 21-4138, the Veteran stated that he "used to drive coach buses for Greyhound and Trucks but can't pass the physical to keep [his] [commercial driver's licenses]." This occupation was not listed on his prior application for TDIU. In a subsequent April 2013 application for TDIU, the Veteran listed previous employment from February 2001 to December 2006 as a full-time custodian. He also indicated that, beginning August 2012, he was enrolled in school for medical office administration. In an August 2013 statement, he again indicated that, due to his eyesight problems, he cannot pass any driving tests. A November 2013 VA Form 2-1902w (Rehabilitation Needs Inventory) reveals that the Veteran worked, from October 2011 to May 2012, as a custodian. The reason this employment ended was because the previous full-time employee returned. An October 2018 VAMC mental health consultation reveals that the Veteran currently is unemployed. At his May 2020 VA psychiatric examination, the Veteran indicated that he has not worked in the past two years. In a May 2021 application for TDIU, the Veteran again provided updated employment information. He reported that, from May 2015 to September 2020, he worked the front desk at a hotel, working fifty hours per week. His highest gross earning in a month was $2,800. He indicated, however, that his service-connected conditions first began interfering with full-time employment in July 2019 and that he last worked full time in March of 2020. As to the first prong of the TDIU analysisthe economic componentthere is much conflicting evidence. In the various TDIU applications and vocational rehabilitation forms, the Veteran paints the picture that he has had at least one job (sometimes more) from February 2001 to June 2012. There appears to be a gap in reported employment from July 2012 to the end of April 2015, at which point the Veteran endorses working at the hotel. But this recitation of employment conflicts at various times with the Veteran's statements made to medical professionals, e.g. the October 2018 VAMC entry and the May 2020 VA psychiatric examination. There also is missing information regarding the Veteran's employment driving trucks and buses, as he confirmed that he engaged in such employment but otherwise failed to include it on any TDIU application. The Board finds that, beginning March 1, 2020, the Veteran has been unable to secure or follow a substantially gainful occupation due ot his service-connected disabilities. Its explanation follows. As to the economic component, the Board acknowledges that there is conflicting evidence regarding whether the Veteran was working the entire time prior to this date (e.g., the lack of information regarding employment from July 2012 to April 2015). But the Board cannot award benefits for unemployability simply because it does not have accurate employment information. Furthermore, the record reflects that he was working full time at a hotel until March 2020. This evidence is probative of the fact that, despite the reason for not having a clear employment picture, the Veteran nevertheless could secure or follow until that point a substantially gainful occupation. From May 2015 to September 2020, the Veteran reported that his highest monthly earning was $2,800. This would put him above the poverty threshold. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. At the same time, however, he indicated that his service-connected conditions began interfering with his full-time employment in July 2019 but that he did not stop full-time employment until March 2020. While it is unclear how much money the Veteran was earning once he stopped working full time, the Board will resolve reasonable doubt in the Veteran's favor and find that he meets the economic component for TDIU beginning March 1, 2020. See Ray, 31 Vet. App. at 72; id. The remining question is, beginning March 1, 2020, whether, considering his education, training, and work history, he is capable of performing the physical and mental acts required by employment. See Ray, 31 Vet. App. at 72. The Board finds that he is not. A November 2018 VA knee examination indicated difficulty with lifting/carrying heavy loads. A December 2018 VA eye examination noted that the Veteran's occupational impact during a uveitis episode would be "severe"; otherwise, this condition causes only a minor impact. An August 2020 VA examination for the Veteran's right ankle revealed that this disability has an impact on his walking, ascending steps, lifting, carrying, squatting, kneeling, pushing, and pulling. As noted above, the April 2020 VA psychiatric examination noted that the Veteran would experience difficulty in a work-like setting. Taking all the Veteran's service-connected conditions into consideration, the Board finds that they prevent him from securing or following a substantially gainful occupation. First, the Veteran has significant musculoskeletal impairments that preclude physical activity, as noted by many VA examiners. Putting aside the musculoskeletal disabilities, his right eye disability would preclude almost all types of employment; the examiner indicated the severity of the occupational impact during a uveitis episode, and the Veteran has indicated many times that his vision problems have prevented him from securing employment. Lastly, the Veteran's PTSD manifests symptoms that have made him antisocial and avoid others. This surely would produce a barrier to the Veteran working with others and maintaining substantially gainful employment. Even considering that the Veteran underwent VA vocational rehabilitative services and attended some college, the Board still does not find that this outweighs the substantial impact of his service-connected disabilities, as noted above. Thus, for the specified time period, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation. See Ray, 31 Vet. App. at 72; 38 C.F.R. § 4.16(a). (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.