Citation Nr: 21069573 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-12 239 DATE: November 18, 2021 ORDER Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms do not more closely approximate total occupational and social impairment. 2. The Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 2009 until his honorable discharge in July 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Regional Office of the Department of Veterans Affairs (VA). The Veteran was awarded service connection for PTSD in an August 2014 rating decision and notified of the decision on August 13, 2014. As of March 24, 2015, a veteran had one year to file a Notice of Disagreement (NOD) on the specific VA Form 21-0958. 38 U.S.C. § 7105(b)(2); 38 C.F.R. § 20.201. Here, he filed a claim for an increased rating in May 2015. This would not act as a Notice of Disagreement because as of March 24, 2015, the specific VA form was required. He then had a VA examination on August 18, 2015. This evidence was received more than one year after the Veteran was notified of his initial award of service connection for PTSD. As such, the August 2014 rating decision became final, and the March 2016 rating decision is the decision on appeal. In April 2021, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. In June 2021, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to attempt to obtain therapy treatment notes and to obtain a new VA examination. The Regional Office attempted to obtain treatment notes from the Veteran, but no response was received. To the extent that information may have been gained to his benefit from his private therapy treatment notes, VA made sufficient efforts to obtain the release for private treatment records. The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). A new examination took place in August 2021 and to the claim has returned to the Board for adjudication. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 1. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD). The Veteran asserts that his PTSD rating should be 100 percent. He was first awarded service connection for PTSD in an August 2014 rating decision at 70 percent disabling. That decision became final, and he applied for an increased rating in May 2015. As such, his current claim is not an initial increased rating and the period on appeal is from May 2014 to the present. The criteria for evaluating PTSD are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, Diagnostic Code 9411. The 70 percent rating is described as follows: 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. 38 C.F.R. § 4.130. A 100 percent rating is warranted for occupational and social impairment with "total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name." Id. (emphasis added). Over the period on appeal, he has had three VA examination, in August 2015, February 2016, and August 2021. The first VA examination in August 2015 diagnosed the Veteran with PTSD with insomnia and depressive spells occurring one to two times a week for a few hours each. His sleeping problems have consisted of screaming and yelling in his sleep; racing thoughts when trying to go to sleep, including trauma-related thoughts; disturbing, trauma-related dreams; nightly cold-sweats; and exhaustion. His sleep was better when he worked. He also suffered from hyper-alertness, hyper-vigilance, hyper-arousal, intrusive thoughts, recurring irritability with intermittent episodes of feeling emotionally overwhelmed, and brief spells of depression. He lost his fulltime job in February 2015 and then lost his rent-controlled apartment but was able to move in with a family friend. He was estranged from his wife at that time. He was deemed to have occupational and social impairment with reduced reliability and productivity. He limited his alcohol intake and did not have suicidal ideation at that time. Although he was unemployed, he was seeking work and desired to work. The next examination in February 2016 found that his symptoms were unchanged. His symptoms resulted in impairment in most areas of functioning, including relationships, family, thought/perception, as well as in work settings. He still had trauma dreams, flashbacks, negative thoughts and mood, reckless behavior, and limited and blunted range of motions, and social detachment. He also had hypervigilance, exaggerated startle, concentration problems, and sleep issues. He was still unemployed at the time of this examination. He was able to control his alcohol intake and was drinking less to cope with traumatic memories. The most recent VA examination took place in August 2021 and found that his symptoms had gotten worse as he was easily irritable. He was divorced and remarried since his last examination but was concerned that his current marriage would end in divorce due to his PTSD symptoms. His drinking had increased to a 12 pack a day or pint of whiskey every day. His symptoms included: depressed mood, anxiety, suspiciousness, panic attacks weekly or less, chronic sleep impairment, mild memory loss, flattened affect, impaired judgement, disturbances in motivation and mood, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, obsessed rituals, and impaired impulse control. At no point during the period on appeal did he have suicidal ideation or issues with self-harm. These symptoms most closely resemble those at the 70 percent rating. He has had issues in most areas. Although he did not have suicidal ideation, he did have obsessional rituals, impaired impulse control, and an inability to establish and maintain effective relationships. There is no medical evidence, and the Veteran has not reported having hallucinations or delusions. He is able to communicate and control some of his impulses. He does not neglect his personal hygiene. He is not a danger to himself. Furthermore, his thoughts were linear and his speech was articulate at the last examination. Previously, he tried to control his reactions when an older coworker would come up to him from behind and between the 2016 and 2021 examinations, he has been able to work, and he was able to start a new relationship and get married during the period on appeal. He has only been unemployed for a small segment of the period on appeal and his symptoms do not more closely resemble the 100 percent rating criteria. As a result, he is not entitled to the next highest rating. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran asserts that he is entitled to a total disability rating based on individual unemployability due to his service-connected PTSD. He has met the threshold requirement for a TDIU over the entire period on appeal of May 2014 to the present as his PTSD has been rated at 70 percent. He has not been awarded a 100 percent disabling rating for his PTSD and so seeks a TDIU award. He is also service-connected for tinnitus (10 percent disabling) and left ear hearing loss (noncompensable). The Veteran's work history is outlined in his PTSD VA examinations, which took place in August 2015, February 2016, and August 2021. The Veteran completed the 11th grade and then dropped out of school. He then worked three jobs and eventually obtained his GED during service. He also completed the following courses during service: construction equipment mechanic and diesel repair, land mine detection, and combat lifesaver courses. He did not complete any post-service education. His education and work experience are in manual labor, glass repair, and heavy machinery. See February 2016 and August 2021 VA Examination. As of February 2015, the Veteran was working a fulltime job. He was working 30 to 37 hours installing glass. He reported that his coworkers had "conspired against him" and never received a negative complaint about his work. However, he reported not having a reason for why he lost his position. He was then out of work from February 2015 up to the time of the examination and reported that he believed he was not hired based on his PTSD diagnosis. See August 2015 VA Examination. The next VA examination in February 2016 outlined his work history, reporting that prior to service he worked operating heavy machinery. He worked mostly as a military police officer during service. This examination confirmed that he worked installing glass at a car dealer and was let go in 2011 after one year because of his "attitude." He then worked in security for a few months until he was fired for non-PTSD related reasons. Finally, from 2011 until 2014 he worked a number of scrap metal jobs until he obtained another job installing glass. He lost the glass installation job several months into 2015 and expressed that his coworkers complained about his "attitude" which is why he got fired. The most recent VA examination in August 2021 reported that the Veteran has been working in a quarry since the February 2016 VA examination took place and continues to work there. Although the nature of the job allows him to have minimal to no contact with others except for his boss, this is not a protective environment as he is not working for family or in a like position where he is given latitude to miss work or leave early. The Veteran has been working a full-time position in his field for over the last five years. The question the Board must answer in a TDIU claim is whether the Veteran can secure or follow a substantially gainful occupation as a result of a service-connected disability. See 38 C.F.R. § 4.16(a). Here, he has proven that he can do both of those as he has secured employment and has maintained that employment for over five years. Where the evidence establishes that a Veteran is substantially gainfully employed on a full-time basis, a TDIU cannot be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also Faust v. West, 13 Vet. App. 342, 356 (2000); 38 C.F.R. § 4.16 (b) (reflecting that, 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 disability shall be rated totally disabled). Here, as the Veteran was able to obtain fulltime employment within his field for over five years and continues to work fulltime, his claim for a TDIU is denied. (Continued on the next page) In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.