Citation Nr: 21069219 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-35 819 DATE: November 17, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to an increased disability rating of 50 percent for PTSD for the period from April 17, 2012 to June 12, 2020 is granted. Entitlement to a disability rating greater than 70 percent for PTSD for the period since June 12, 2020 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Between October 24, 2011 and April 17, 2012, the Veteran's PTSD was productive of at most occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From April 17, 2012 to June 12, 2020, the Veteran's PTSD was productive of at most occupational and social impairment with reduced reliability and productivity. 3. Since June 12, 2020, the Veteran's PTSD has been productive of at most occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 4. Since June 12, 2020, the Veteran's service-connected PTSD precludes him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to April 17, 2012, the criteria for entitlement to an initial disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an increased disability rating of 50 percent for PTSD from April 17, 2012 to June 12, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a disability rating greater than 70 percent for PTSD since June 12, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to a TDIU are met effective June 12, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1984 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision before a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in November 2018 at which time the Board denied an initial rating greater than 30 percent. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a September 2019 joint motion for partial remand (JMPR) by the parties. A September 2019 Order by CAVC remanded the matter to the Board for compliance with the instructions in the JMPR. The matter was again before the Board in April 2020 at which time it was remanded for further development. It is now again before the Board for resolution.\ Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, 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, 3.321. 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. To warrant a higher disability rating under 38 C.F.R. § 4.130, the evidence must show or most closely approximate: 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 (50 percent). Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, 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 (70 percent). Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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 (100 percent). The list of symptoms under the rating criteria are examples of symptoms that would warrant the rating, but are not exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). However, that is not the case where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Separate ratings may be assigned for separate periods of time based on the facts founda practice known as "staged rating". Fenderson v. West, 12 Vet. App. 119, 126 (1999). Here, the Veteran was service connected for PTSD with a 30 percent disability rating, effective October 24, 2011 (the date of the claim). See January 3, 2013 Rating Decision. The Veteran has continuously expressed dissatisfaction with that initial rating since its assignment. 1. Entitlement to an initial disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD) is denied. The record reveals that, prior to April 17, 2012, the Veteran's PTSD symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. From the date of the claim in October 2011 to April 2012, the Veteran experienced impairment primarily in one of the six relevant areas (i.e., work, school, family relations, judgement, thinking, or mood). Namely, the Veteran experienced impairment in mood. He consistently endorsed depressed and anxious mood without panic attacks, irritability, and sleep impairment. See, e.g., 10/3/2018 CAPRI; 12/20/2012 VA Examination. Although the December 2012 VA examination noted flattened affect, which is more in keeping with a 50 percent disability rating, it was not of the frequency and duration contemplated by a 50 percent rating. Instead, in September 2011, prior to that examination, and in the vast majority of notations since, the Veteran's affect has been documented as either appropriate or mood congruent. See, e.g., 11/15/2011 Medical Treatment Record-Government Facility; 10/3/2018 CAPRI. During the aforementioned period, the Veteran consistently attested to a good relationship with his parents, children, and ex-wife and occasionally with his siblings. See, e.g., 12/20/2012 VA Examination; 10/3/2018 CAPRI. Thus, his family relationships are deemed intact and unobstructed. Furthermore, although the Veteran endorsed isolative behavior, he also reported having a few friends who he met with once per month reflective of stable friend relationships. See 10/3/2018 CAPRI. Between October 2011 and April 2012, the Veteran's memory remained intact and there was no record of negative impact on school or work. Thus, the Board finds the Veteran entitled to a disability rating of no more than 30 percent for PTSD during the relevant period. 2. Entitlement to a disability rating of 50 percent for PTSD from April 17, 2012 to June 12, 2020 is granted. Beginning on April 17, 2012, when the Veteran was fired from his employment of approximately 16 years due to a disagreement with his supervisor, the Veteran's PTSD became productive of occupational and social impairment with reduced reliability and productivity. See 12/20/2012 VA Examination; 11/17/2016 VA 21-4192. As of that date, the Veteran began experiencing impairment in two additional areas, namely work and school. After being fired from his 16-year employment in April 2012, he was again let go from a job in May 2018 due to issues with his managers. See 6/12/2020 C&P Examination. During the relevant period the Veteran began attending college, but according to the Veteran, he left school in 2016 or 2017 because he began to have difficulty remembering. See 6/12/2020 C&P Examination. However, the record reflects that in March 2018 the Veteran was due to graduate with an associate's degree in a computer related field. See 10/3/2018 CAPRI. Nonetheless, a January 29, 2018 VR-39 notified the Veteran that his vocational rehabilitation and employment benefits were being discontinued because he was unable to participate in his education due to employment. See 1/29/2018 VR-39; 1/2/2018 Education-General. Thus, it is apparent that the Veteran experienced difficulty maintaining effective work relationships and difficulty completing his education requirements whether because of motivation disturbances or impaired short or long-term memory. Regardless, the two additional areas of impairment warrant a disability rating of 50 percent for the relevant period. During the aforementioned period, the Veteran experienced impairment primarily in three of the six relevant areas. Thus, he cannot not be considered during this period to have experienced the deficiencies in most areas articulated by a 70 percent rating. Furthermore, the record does not reflect, nor did the Veteran report, suicidal ideation, spatial disorientation, neglect of personal appearance, near continuous panic, or any other symptoms of similar severity, frequency, or duration as contemplated by a 70 percent rating. While the Veteran's skin picking habit can be considered an obsessional ritual, there is no indication that it interfered with routine activities as is contemplated by the 70 percent rating. See 10/3/2018 CAPRI. As such, a 70 percent rating for this period is not warranted. 3. Entitlement to a disability rating greater than 70 percent for PTSD since June 12, 2020 is denied. As of June 12, 2020, the record reveals that the Veteran's PTSD symptoms became productive of occupational and social impairment with deficiencies in most areas. However, the record does not support a finding that the Veteran experienced total social and occupational impairment. While his PTSD has significantly impaired his occupational prospects, the Veteran has maintained positive and supportive relationships with his children, wife, ex-wife, parents, and friends throughout the appeal period. See 10/3/2018 CAPRI; 6/12/2020 C&P Examination; 10/12/2021 CAPRI. The Veteran listed his ex-wife, brother, and friends as his support system at various times during the appeal period and has even lived with friends at times during the appeal period. Id. Even after resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's PTSD did not result in total occupational and social impairment. Thus, he is not entitled to a rating in excess of 70 percent. 4. Entitlement to a TDIU is granted. A TDIU claim can be expressly raised or inferred, by the Veteran's contentions and the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). If there is evidence of unemployability at the time of an increased rating claim challenging the initial disability rating assigned for the disability upon which the unemployability is based, entitlement to TDIU, including the effective date for that award, is part and parcel of the determination of the initial rating for that disability. Id. at 454-55. A request for TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Id. at 453-54. Once the issue of entitlement to TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. A TDIU may be assigned where the schedular rating is less than total, when the Veteran is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation consistent with his education, training, and work experience as a result of service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Neither the Veteran's age nor nonservice-connected impairment may be considered. 38 C.F.R. §§ 3.341, 4.16a, 4.19. If there is only one service-connected disability, that disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there must 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. Id. The burden of establishing entitlement to TDIU does not entail the need for the Veteran to dispel any possibility that a suitable job exists. Mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the Veteran's physical and mental capabilities. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (citing Timmerman v. Weinber, 510 F.2d 439, 442 (8th Cir. 1975)). Here, the Veteran's combined ratings were sufficient to warrant a schedular evaluation for TDIU during the entirety of the appeal period. He had a combined disability rating of 70 percent from October 24, 2011. Additionally, the Veteran was service connected for PTSD at 30 percent, migraine at 30 percent, lumbar spondylosis at 20 percent and left lower extremity radiculopathy at 10 percent, all effective October 24, 2011. Because the service-connected lumbar spondylosis and lower extremity both stemmed from a common etiology, they are considered "one disability" for TDIU purposes and rated at 40 percent, effective October 24, 2011. 38 C.F.R. § 4.16(a)(2). During the Veteran's June 2020 VA examination, he indicated that he had not worked since January 2020. Moreover, the examiner opined that the Veteran was unlikely to be able to maintain full-time employment due his mental health status, namely his impaired attention span, memory, and difficulty managing stress. See 6/12/2020 C&P Examination. Although the Veteran has had gaps in employment and reduced employment during the appeal period, those gaps and reduced productivity have been attributable to college attendance. See, e.g., Id.; 10/3/2018 CAPRI. Despite the Veteran's claim that he had not worked since January 2020, there is no documentation of record to substantiate that claim. Therefore, the Veteran is entitled to TDIU as of June 12, 2020, the date of the VA examination which established his inability to gain and maintain substantially gainful employment due to his service-connected PTSD. Absent probative evidence that the Veteran's PTSD renders him unable to secure or follow a substantially gainful occupation, the Veteran is not entitled to TDIU prior to June 12, 2020. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.