Citation Nr: 21068833 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-53 944 DATE: November 29, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 4, 2017, is denied. FINDINGS OF FACT 1. The Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as irritability, hypervigilance, exaggerated startle response, poor focus, sleep problems, avoidance, and anxiety, but not by occupational and social impairment with deficiencies in most areas. 2. Prior to April 4, 2017, the Veteran did not meet the criteria for a TDIU rating, and his service-connected disabilities alone did not prevent him from obtaining and sustaining employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2021). 2. Prior to April 4, 2017, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.3, 4.15, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1966 to July 1968 including service in the Republic of Vietnam. He was awarded the Purple Heart Medal. In December 2019, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge in Waco, Texas. In March 2021, the Board remanded these issues to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In a July 2021 rating decision, the RO awarded entitlement to a total disability rating due to individual unemployability, effective April 4, 2017. As the TDIU determination does not represent the highest possible benefit, the issue remains in appellate status, as recharacterized above. AB v Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. 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). Here, staged ratings will be considered and discussed, as warranted. The Veteran contends that he is entitled to an increased rating for his service-connected PTSD. The Veteran's service-connected PTSD has been rated as 50 percent disabling under Diagnostic Code 9411. The Veteran's PTSD is rated using the general formula for mental disorders (general formula). Under that formula, a 50 percent rating is assigned for 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. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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); and 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; 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; and memory loss for names of closes relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013) the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) The Veteran submitted a claim for an increased rating for his PTSD in July 2015. March 2015 VA mental health treatment records reveal that the Veteran endorsed a longstanding history of PTSD symptoms that impacted his relationships and overall quality of life. During the appointment, the Veteran reported feeling lost and showcased symptoms of depression. He reported seeking therapy in order to work through his trust issues and interpersonal difficulties. April 2015 VA treatment records reflect that the Veteran had "a longstanding history of PTSD symptoms and report[ed] symptoms of sleep difficulties, hypervigilance and exaggerated startle response." The Veteran's VA treatment records reflect that he requested termination of individual mental health therapy in May 2015 because his mood had improved over the past several weeks and he had an increased support system. The Veteran reported an increased level of social activity, including participating in his church group, increasing the interactions with his grandchildren, and becoming more involved in the veterans' community. Id. The Veteran stated that he had gained insight on his pattern of negative thinking and developed a better perspective. He reported that he had become a leader at a local veteran's chapter in the area. The Veteran reported a decrease in nightmares but did report continued hypervigilance. The treating psychologist reported that the Veteran was able to resolve his interpersonal difficulties and that he had good insight into his emotional functioning and applied skills but continued to endorse symptoms of PTSD and would benefit from evidence-based psychotherapy. The Veteran attended a VA examination in July 2015. He reported working as a truck driver for over 30 years with no apparent work difficulties. He stated that he retired due to headaches and knee problems. He denied taking any medications for PTSD. The Veteran reported some anxiety dealing with the relationship with his son but did not report any mental health symptoms due to his PTSD. He told the examiner that he was using printed instructions to guide him in building a deck at his house. He also reported helping his son build a deck. He enjoyed watching television, gardening, and painting cabinets. Following an examination and review of the claims file, the examiner determined that while the Veteran had been diagnosed with PTSD, his symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner reported that the Veteran's lay statements were not consistent and did not match what was observed by the examiner. September 2015 VA treatment records reveals that the Veteran spent part of the day looking after and transporting his teenage grandchildren. He reported depression, social isolation, irritability, and a lack of enjoyment. The treating physician assistant discussed prescribing an antidepressant. November 2015 VA treatment records reflect that the Veteran denied taking any medication for his mental health. Following the appointment, the treating physician assistant noted that it was in his opinion that the Veteran's PTSD symptomology continued to have significant negative impact on his ability to cope with everyday life events. In December 2015 correspondence, the Veteran objected to the findings of the July 2015 VA examination. He stated that his mental health symptoms had remained consistent since his diagnosis. December 2016 VA mental health treatment records reflect that the Veteran reported some delusional thoughts regarding his physical health. He was fidgety and made little eye contact. February 2017 VA treatment records reveal that the Veteran reported intrusive thoughts. April 2017 VA treatment records reflect that the Veteran was showing some obsessional and delusional beliefs. In an April 2017 application for increased compensation based on unemployability, the Veteran reported working 60 hours per week between October 1971 and November 2006 for the same company. The Veteran attended a VA examination in December 2019. He reported frequent depression, anxiety, sleep disruption, excessive worry, irritability, weight gain, lack of trust, loss of motivation and interest in previously enjoyed activities, hypervigilance, isolation, memory problems, nightmares, avoidance, and panic attacks monthly. He also reported suicidal thoughts without plan or intent. Following an examination and review of the claims file, the examiner concluded that the Veteran had PTSD and depressive disorder secondary to his service-connected medical conditions. The examiner determined that it was not possible to differentiate which symptoms were attributable to each diagnosis but concluded that the Veteran's mental health conditions caused occupational and social impairment with reduced reliability and productivity. The Veteran attended a Board hearing in December 2019. He testified that he had originally filed for an increase in his evaluation in July 2015 because he was growing dependent on his grandchildren to take care of him. He did not feel that his mental health symptoms improved. He reported more than weekly panic attacks and angry outbursts. During March 2020 VA treatment, the Veteran denied suicidal or homicidal ideation and exhibited good insight and judgment. The treating physician attributed the Veteran's mild memory loss to multiple strokes and his untreated sleep apnea. In May 2020, the Veteran denied hallucinations and suicidal or homicidal ideation. He did not exhibit any delusions or paranoia and had good insight and judgment. The Veteran denied nightmares, physical aggression, agitation, panic, hopelessness, helplessness, persistent depression, obsessions, flashbacks, and suicidal or homicidal ideation during September 2020 VA treatment. He did report irritability, avoidance, and intrusive memories. March 2021 VA mental health treatment reflects that the Veteran was able to drive without getting lost or getting into any accidents. He was able to discuss his medical history and medications. The Veteran reported occasional nightmares but denied suicidal or homicidal ideation, obsessions, flashbacks, symptoms of mania, hypomania, or psychosis. The Veteran also described irritability, hypervigilance, exaggerated startle response, poor focus, sleep problems, avoidance, and anxiety. During April 2021 VA mental health treatment, the Veteran denied persistent depression, hopelessness, helplessness, or panic. He reported that his PTSD symptoms were managed with prayer and he denied psychosis, mania, hypomania, or any other major mood symptoms. During June 2021 VA mental health treatment, the Veteran reported that he did not like taking mental health medication and thought that he was able to manage his PTSD symptoms on his own. He reported that every year he traveled to Michigan to attend a family reunion where his family got together to "enjoy each other and share." He reported driving to the grocery store. The Veteran denied suicidal or homicidal ideation, paranoia, psychosis, irritability, obsessions, compulsions, hypomania, and mania. The treating physician noted that the Veteran exhibited avoidance, hypervigilance, flashbacks, nightmares, and ruminations. Upon examination in July 2021, the Veteran reported a close relationship with his grandchildren and regular church attendance. He stated that he retired from truck driving in 2006. He reported feeling hopeless at times but explained that he had protective factors to live such as his family and religious faith. He told the examiner that he retired in 2006 and enjoyed working on projects around his home. He reported that his PTSD caused depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon examination he was casually dressed, pleasant and cooperative. He was alert and oriented to person, place, time, and purpose. His speech was normal in rate, rhythm, tone, and volume. His mood appeared depressed. No psychomotor abnormalities were observed, and his thought process was largely linear and logical. Thought content was unremarkable for obsessions, compulsions, or delusions. He did not exhibit any auditory or visual hallucinations, and his memory and cognition were grossly intact. The Veteran denied suicidal or homicidal ideation. His judgement and insight were good, and his impulse control was intact. Following the examination and review of the claims file, the examiner determined that the Veteran's PTSD would cause occupational and social impairment with reduced reliability and productivity. July 2021 VA treatment records reflect that the Veteran enjoyed traveling, fishing, and visiting family. He reported independently managing his finances. The Veteran denied any suicidal or homicidal ideation within the last six months. He reported that he was motivated and ready for change and attempting to realize his full potential. The Veteran had self-direction, was able to manage demands and opportunities, and had interpersonal support. Based on the lay and medical evidence of record the Board finds that the Veteran's PTSD does not more nearly approximate the level of severity contemplated by an increased 70 percent rating. The Veteran reported symptoms including, avoidance, hypervigilance, flashbacks, nightmares, irritability, exaggerated startle response, poor focus, sleep problems, and anxiety. The overall nature, frequency and severity of the Veteran's symptoms have not risen to the level of an increased 70 percent evaluation. The Veteran's current symptoms are contemplated by the current 50 percent rating. The Board recognizes that some of the Veteran's reported symptomology approximates the listed criteria for an evaluation in excess of 50 percent. Taking a holistic analysis of the signs and symptoms of the Veteran's service-connected PTSD, his overall occupational and social impairment caused by these symptoms has not risen to the level of an increased 70 percent rating. The Veteran's PTSD has not been characterized by occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgment, thinking or mood. The Veteran continued to maintain good relationships with and regularly see his family. He also reported regular church attendance. His Social Security Administration (SSA) disability records refect that he stopped working due to back and knee problems and this was reiterated during the July 2015 VA examination. When he was employed, he worked 60 hours weekly and maintained his job through the same employer for over 30 years. The Board recognizes that the Veteran at the December 2019 VA examination noted thoughts of suicide but denied any danger of harming himself or others. The Board notes that symptoms resulting in occupational and social impairment with deficiencies in most areas results in an increased 70 percent rating with symptoms including suicidal ideation. However, there was no indication that the Veteran's reports of suicidal ideations interfered with his social and occupational functioning which would result in an increased rating. Moreover, he has also denied suicidal or homicidal ideation several times before and after the December 2019 VA examination which warrants decreased credibility of the reports on that occasion. Moreover, no medical professional to whom the Veteran has reported suicidal ideations has found these thoughts in any way alter his social interactions or his capacity for work. The Board has thoroughly considered these reports of suicidal ideations as well as the medical evidence of record and finds that the December 2019 VA examination is entitled to significant probative weight, which addressed the Veteran's reports of increased symptomology and completed a thorough mental status examination and review of the claims file finding that the Veteran's overall level of occupational and social impairment resulted in at most occupational and social impairment with reduced reliability and productivity. There was no evidence of reports of obsessional rituals, illogical or obscure speech, near continuous panic or depression affecting his ability to function independently, impaired impulse control, or spatial disorientation. At times the Veteran did appear to exhibit delusions regarding his health. The evidence of record shows that the Veteran was able to perform activities of daily living and his overall disability picture is not one of occupational and social impairment with deficiencies in most areas. The Veteran always presented oriented to person, place, and time. He was always well groomed and exhibited logical speech. His testimony during the December 2019 Board hearing that he had panic attacks multiple times a week is refuted by the VA examinations and treatment records in which he continuously denied panic or experiencing panic attacks more than weekly. Thus, based on the evidence of record the Veteran's overall disability picture was not one of and social impairment with deficiencies in most areas. As such an increased 70 percent rating is not warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased rating in excess of 50 percent for the Veteran's service-connected PTSD is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. 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. See 38 C.F.R. § 4.16. 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." See 38 C.F.R. § § 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, 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; see also Van Hoose, 4 Vet. App. at 363. Prior to April 4, 2017, the Veteran's service-connected disabilities included PTSD, rated as 50 percent disabling; diabetes, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left knee arthritis, rated as 10 percent disabling; and traumatic brain injury, and residual tension headaches, each rated as noncompensable. His combined disability rating was 60 percent. In this case, the Veteran did not meet the schedular requirements for TDIU. When the schedular TDIU requirements are not met, as in this case, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b). In this regard, the Board notes that neither the Agency of Original Jurisdiction (AOJ) nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). 38 C.F.R. § 4.16(b) states that "rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the" schedular TDIU requirements. Accordingly, the issue before the Board is more specifically whether referral to the Director of Compensation Service for consideration of an extraschedular TDIU is warranted for the period prior to April 4, 2017. 2. Entitlement to a total rating based on individual unemployability (TDIU) The Veteran contends that he is entitled to a TDIU rating prior to April 4, 2017. As discussed above, the Veteran worked 60 hours per week from 1971 to 2006 as a truck driver. See April 2017 application for increased compensation based on unemployability. The Veteran's employer submitted a form in July 2017 in connection with the Veteran's TDIU claim. The employer stated that the Veteran worked 12 hours a day and 60 hours a week. The employer stated that the Veteran did not receive any concessions due to his age or disability. Retirement was listed as the reason the Veteran was no longer working. Social Security Administration (SSA) disability records reflect that the Veteran reported being "disabled because of arthritis, hearing loss, back pain, enlarged prostate, and a herniated disc." See September 2011 SSA explanation of determination. When he filed his claim, he reported that he was able to do all his own household cleaning, home repairs, and yardwork, but used a pad under his knees. During the VA examination in July 2015, the Veteran reported working as a truck driver for over 30 years with no apparent work difficulties. He stated that he retired due to headaches and knee problems. He told the examiner that he was using printed instructions to guide him in building a deck at his house. He also reported helping his son build a deck. The examiner determined that while the Veteran had been diagnosed with PTSD, his symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. During the December 2019 Board hearing, the Veteran testified that gout inhibited his ability to work and get around. When asked why he stopped working, he explained that he had bilateral knee contusions and was unable to walk and it was difficult to continue driving trucks. He stated that he was getting pressure headaches and he was worried he would get addicted to the aspirin and Tylenol. The Veteran also stated that he would have angry outbursts while driving when people cut him off on the road. As explained above, in order to receive a total disability rating under § 4.16(a) prior to April 4, 2017, it must be determined that the Veteran's service-connected disabilities rendered him unemployable as of some prior date without regard to any impairment caused by nonservice-connected disabilities. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Having reviewed the evidence of record, the Board concludes that entitlement to TDIU is not warranted for the period prior to April 4, 2017, on an extraschedular basis. In reaching that conclusion, the Board acknowledges that the Veteran has not worked during the appellate time period and that evidence does demonstrate certain difficulties with performing occupational tasks, due to his knee, headache, and PTSD disabilities. On the other hand, the Board notes that during the period on appeal, the Veteran reported working with his son to build a deck and do repairs around his home. His left knee arthritis, tension headaches, and PTSD symptoms did not prevent him from performing manual labor or working with others. The Board acknowledges the Veteran's service-connected disabilities had some effect on his occupational functioning as represented by the combined 60 percent rating; however the weight of the evidence does not support his contentions that his service-connected PTSD, diabetes, and left knee disabilities, and other less severe service-connected disabilities individually or in combination precluded his participation in all forms of substantially gainful employment consistent with his education, skills and work experience. Prior to April 4, 2017, the record does not reflect that the Veteran's PTSD impacted his ability to work. The SSA records determined that arthritis, hearing loss, back pain, enlarged prostate, and a herniated disc prevented the Veteran from working. The Veteran is not service connected for his back disabilities, hearing loss, or enlarged prostate and prior to April 4, 2017, he only had a 10 percent disability rating for his left knee arthritis. Furthermore, his left knee arthritis did not prevent him from building a deck at both his house and his son's house. While the lay evidence has been considered, the Board ultimately affords more probative weight to the Veteran's VA examinations and treatment records which reflect that he was independent prior to April 4, 2017 and not prevented from obtaining gainful employment because of his service-connected disabilities. Prior to April 4, 2017, the evidence of record indicates that the Veteran's service-connected disabilities resulted in occupational impairment and a 60 percent combined disability rating. In this regard, 38 C.F.R. § 4.1 provides that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses." The 60 percent combined disability rating therefore contemplated and compensated the Veteran for the occupational impairment from his service-connected disabilities. The Veteran's service-connected disabilities had some effect on his function in his previous position as a truck driver for the period prior to April 4, 2017. Nevertheless, for the reasons and bases set forth above, the weight of evidence is against finding his service-connected disabilities (singly or in combination) were of such severity so as to preclude his participation in any form of substantially gainful employment for the appellate time period prior to April 4, 2017. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.