Citation Nr: 21068732 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-12 660 DATE: November 12, 2021 ORDER A disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability (TDIU) is granted. VETERAN'S CONTENTIONS The Veteran contends that his service-connected PTSD is more severe than the rating currently assigned under 38 C.F.R. § 4.130 Diagnostic Code 9411. Specifically, the Veteran contends that the current rating does not adequately account for the fact that he cannot adapt to any work environment. The Veteran contends that his service-connected PTSD prevents him from obtaining or maintaining substantially gainful employment, entitling him to a TDIU. FINDINGS OF FACT 1. The Veteran's PTSD approximates no more than occupational and social impairment with deficiencies in most area, such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran's service-connected PTSD precludes him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.19, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to January 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Buffalo, New York. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2019. The transcript of the hearing has been associated with the claims file. The Board issued a decision in July 2019 granting an increased disability rating of 70 percent for a PTSD. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and the parties filed a Joint Motion for Partial Remand (JMPR) in September 2020. Specifically, the parties to the JMPR found the Board had not properly adjudicated the Veteran's claim for TDIU, as an element of his appeal for an increased rating of his PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thereafter, in September 2020, the Court issued an Order granting the JMPR and vacating the portion of the July 2019 Board decision that denied an increased disability rating in excess of 70 percent for PTSD. The issue of entitlement to a TDIU has been raised as a component of the increased rating claim on appeal. Thus, it is presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that Veteran and his attorney seek a total rating (100 percent or TDIU) and a TDIU has been granted in the below decision. See October 2021 correspondence. 1. Entitlement to a disability rating in excess of 70 percent for PTSD Generally, disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 worklike setting), inability to establish and maintain effective relationships. 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as" followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Here, throughout the appeal period, the Veteran has been rated at 70 percent for PTSD. A review of the evidence reveals that the Veteran's PTSD symptoms approximated no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, entitling him to no more than a rating of 70 percent. 38 C.F.R. § 4.130, Diagnostic Code 9411. With respect to work, during a July 2015 VA examination, the Veteran reported that he was counseled more than once due to angry outbursts with co-workers. The Veteran testified that prior to retirement he worked as a designer and was often confrontational at work. The Veteran further testified that his short temper resulted in at least one physical altercation with a coworker. In an August 2016 VA examination report an examiner indicated that if the Veteran attempted to return to work, he would experience at least a moderate level of occupational impairment due to moderate symptoms of PTSD. Based on the evidence, the Veteran would likely have difficulty adapting to a full-time work-like setting and his PTSD is thus productive of deficiencies in the area of work. The evidence does not support a finding of deficiency in the area of family. The Veteran testified during the March 2019 Board hearing that he did not have a good relationship with his sister. However, during the July 2015 VA examination the Veteran reported that he had an excellent relationship with his wife, daughter, stepdaughter, and stepson. The Veteran similarly reported during the August 2016 VA examination that he had a good relationship with his wife and good relationships with his daughter and stepchildren. The Veteran also reported that he had been married for 43 years. The Veteran testified during the March 2019 Board hearing that he and his wife do everything together and he doesn't like to go anywhere without her because she assists him with his anxiety. The Veteran also testified that he and his wife spend most of their time with their grandchildren. In the area of judgment, as previously stated, the Veteran testified during the March 2019 Board hearing that his short temper resulted in at least one physical altercation with a coworker before he retired in 2015. The July 2015 and August 2016 VA examiners noted symptoms of irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects. Based on the evidence, the Veteran has difficulty with judgment and his PTSD is thus productive of deficiencies in the area of judgment. In the area of thinking, the Veteran testified during the March 2019 Board hearing that he does not trust anybody outside of his immediate family. The July 2015 VA examiner noted problems with concentration. The August 2016 VA examiner noted suspiciousness and symptoms of persistent and exaggerated negative beliefs or expectations about oneself, others, or the world. The August 2016 VA examiner also noted intrusive thoughts, problems with concentration, and mild memory loss. The August 2016 VA examiner further noted that the Veteran's mental health symptoms interfere with his ability to complete tasks at home occasionally. During a February 2016 screen for PTSD the Veteran reported feeling constantly on guard, watchful, or easily startled. See February 2016 VA Olean CBOC Records. Based on the evidence, the Veteran has difficulty with his thought processes and his PTSD is thus productive of deficiencies in the area of thinking. In the area of mood, the July 2015 and August 2016 VA examiners noted irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects. The August 2016 VA examiner also noted symptoms of persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame). The Veteran reported during the August 2016 VA examination that he and his wife have been foster parents for 20 years. He further reported that he started taking anger management classes fairly recently after a few of the foster children stated that he yelled at them. The Veteran testified during the March 2019 Board hearing that he often has to sit with his back against the wall, so he can see the exits. The Veteran further testified that he does not like to go anywhere without his wife because of his anxiety and he does not like to be in the city. During a February 2016 screen for PTSD the Veteran reported feeling numb or detached from other, activities, or surrounds. See Id. In a correspondence dated in December 2016, the Veteran's wife described the Veteran's nervous behavior and angry outbursts. The Veteran's wife stated that the Veteran was always on edge and very short tempered with his grandchildren. Based on the evidence, the Veteran has difficulty with his mood and his PTSD is thus productive of deficiencies in the area of mood. After careful review of the evidence, the Board finds that the Veteran's PTSD symptoms approximated no more than occupational and social impairment with deficiencies in most areas. As described above, the Veteran experiences deficiencies in work, judgment, thinking, and mood. Accordingly, the Board finds that the preponderance of evidence demonstrates that the disability due to the Veteran's PTSD has approximated the schedular criteria for a disability rating of 70 percent. In so finding, the Board looked to the frequency, severity, and duration of the Veteran's impairment, and not transient symptoms, to assess his disability picture. See Vazquez-Claudio, 713 F.3d at 117 (Fed. Cir. 2013). The evidence of record does not, however, support a rating of 100 percent (the only higher disability evaluation available). VA clinicians have not noted, and the Veteran has not reported gross impairment in thought processes or communication, persistent hallucinations and delusions, grossly inappropriate behavior, intermittent inability to perform the activities of daily living, or any of the other markers of total occupational and social impairment due to PTSD. The Board notes that the August 2016 VA examiner indicated that the Veteran was alert, oriented, appropriately groomed, and generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Board also notes that VA treatment records document that the Veteran was alert and oriented; thoughts were logical, and goal directed; insight and judgment was intact/good; and cognition was grossly intact. See August 2021 Upstate New York HCS Records. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) A TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that service connection has been established for PTSD (rated as 70 percent disabling); and tinnitus (rated as 10 percent disabling). The Veteran has one disability rated at least 60 percent or two or more disabilities, with at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16 (a). After reviewing the evidence of record, the Board finds that the Veteran's service-connected PTSD precludes him from obtaining or maintaining a substantially gainful occupation. In this regard, the record reflects that the Veteran earned a high diploma and completed some college coursework. Since service, the Veteran reported primary employment working as an engineer designer and a maintenance man. Regarding his ability to obtain or sustain a substantially gainful occupation, the Veteran indicated in a VA 21-8940 Veteran's Application for Increased Compensation Based on Unemployability that he became too disabled to work in February 2015 due to service-connected PTSD. The Veteran testified during the March 2019 Board hearing that he was often confrontational at work. The Veteran further testified that his short temper resulted in at least one physical altercation with a coworker. Social Security Administration (SSA) Earnings Records document that the Veteran has not earned any income since 2015 and his income in 2015 was below the poverty threshold. Turning to the medical evidence of record, during a July 2015 VA PTSD examination the Veteran reported receiving counseling more than once due to angry outbursts with co-workers. The July 2015 VA examiner opined that the Veteran's level of occupational and social impairment with regard to PTSD was occupational and social impairment with reduced reliability and productivity. The July 2015 examiner indicated that the disturbances related to the Veteran's PTSD caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The July 2015 examiner also indicated that symptoms related to PTSD included anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks. During an August 2016 VA PTSD examination, the Veteran reported retiring in part due to becoming more short-tempered. The August 2016 VA examiner opined that the Veteran's level of occupational and social impairment with regard to PTSD was 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. The August 2016 VA examiner also opined that if the Veteran were to attempt to return to work at this time, it is expected that he would experience at least a moderate level of occupational impairment due to moderate symptoms of PTSD. The August 2016 VA examiner indicated that symptoms related to PTSD included suspiciousness; chronic sleep impairment; and mild memory less, such as forgetting names, directions, or recent events. Additional symptoms described in the report also included persistent negative emotional state and irritable behavior and angry outbursts. A vocational expert opined that the Veteran's PTSD prevented him from participating in and maintaining gainful employment since February 2015. The expert reasoned that the Veteran has been unable to meet employment demands due to the symptoms from his PTSD including severe anger and irritability, verbal outbursts, and concentration and memory problems. The vocational expert noted that while performing design engineering for submarines, the Veteran's employer removed him from that job due to his altercations with co-workers and placed him in a maintenance position. The vocational expert also noted that after a few years the Veteran stopped working because he was still unable to avoid contact with other workers. The vocational expert explained that there are no jobs that do not require contact with supervisors, co-workers, or customer to accommodate the Veteran's need to be isolated from people and employers have a zero tolerance for violence and aggression in the workplace per guidance of the U.S. Department of Labor. Based upon the above, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's service-connected PTSD precludes him from obtaining or maintaining a substantially gainful occupation. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working as an engineer designer and maintenance man; positions which would involve adaptability and a moderate amount of human interaction, including giving and receiving instructions. In making this determination, the Board has also considered the fact that the Veteran has limited sedentary work experience and that the vocational expert indicated that he can only sit 30 minutes to one hour before he has to move because of his nerves. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.