Citation Nr: 21070629 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-01 255 DATE: November 24, 2021 ORDER A rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. PTSD symptoms during the appeal period resulted in occupational and social impairment with deficiencies in most areas, but not total social impairment. 2. The Veteran's service-connected disabilities do not preclude him from obtaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.2, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from March 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs Regional Office. PTSD Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Since February 28, 2011, the Veteran has been assigned a 70 percent rating for PTSD. This rating contemplates 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 that is 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); and inability to establish and maintain effective relationships. The maximum 100 percent rating is assigned when there is 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. The criteria listed above serve as examples of the type and degree of the symptoms or effects that would justify a rating and are not meant to be an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Social and occupational impairment must be due to the symptoms listed for that rating level, "or others or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Neither the Veteran nor his representative have asserted why a higher 100 percent rating is warranted, and they have not cited evidence supporting such a rating. Based on a review of the evidence, the Board finds that a 100 percent rating is not warranted. The Veteran's treatment records and examination reports during the appeal period document severe psychiatric symptoms. For example, VA examinations in January 2015 and January 2020, the Veteran reported depressed mood, anxiety, disturbances of motivation and mood, and an inability to establish and maintain relationships. The Veteran reported specific PTSD symptoms including recurrent, intrusive distressing memories and dreams of the trauma, avoidance efforts and behaviors, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, and sleep impairment. The record also indicates periods of suicidal ideation with no plan or intent. However, these symptoms are all contemplated by a 70 percent rating. While PTSD impacted his relationship, the Veteran remained married during the appeal period and maintained a relationship with his two sons and some close acquaintances. During the appeal period, the Veteran was not a persistent danger to himself or others and showed no evidence of hallucinations or delusional thoughts. The evidence is otherwise negative for any grossly inappropriate behavior, neglect of hygiene, disorientation to time or place, memory loss for basic concepts such as his own name, or other symptoms which might suggest total occupational and social impairment consistent with a 100 percent rating. Therefore, while the Veteran's symptoms are severe, a rating higher than 70 percent is not warranted. Accordingly, the claim must be denied. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is 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). The Veteran is service connected for PTSD and tinnitus. The Veteran's combined rating is 70 percent, and his PTSD is rated at 70 percent. As such, he meets the schedular criteria for a TDIU. The Central inquiry in determining whether a TDIU is warranted 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.16, 4.19. Upon review of all evidence of record, the Board finds that the most probative evidence of record demonstrates that the Veteran's service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. The Veteran has not submitted any unemployment forms or provided information regarding his educational and employment history. At the January 2015 VA examination, the Veteran reported that he worked for 33 years as a supervisor in an electrical utility company, retiring in January 2006 due to a company merger and change in management structure. The Veteran did not indicate at that examination that any psychiatric symptoms contributed to his inability to continue working. The examiner did not note any difficulty with work or adapting to stressful circumstances. At the January 2020 VA examination, the Veteran indicated that he had some problems with a supervisor about two to three years prior to retiring. However, again, there was no indication that these problems resulted from psychiatric symptoms, specifically. The Veteran reported he began delivering meals to have something to do, and also delivered prescriptions for one year but stopped because he did not like delivering narcotics "in the ghetto." Again, there is no indication that service-connected disabilities prevented the Veteran from working. The Board notes that the Veteran reported in a December 2016 appeal form that he did not believe he had the motivation to work if he had to, and that symptoms including anxiety, mood shifts, and antisocial feelings, would also make it difficult if he had to work. However, in an April 2011 VA medical record, the Veteran admitted that he was having problems at work largely due to drinking, and was given the option to retire. Beginning in 2011 at the start of the appeal period, the preponderance of the evidence does not show that the Veteran's service-connected disabilities have prevented him from all substantially gainful employment. While the Veteran stated in 2016 he believed some psychiatric symptoms would prevent him from working if he had to, the preponderance of the evidence does not show that service-connected disabilities prevented all substantially gainful employment. The Board finds VA examiners' findings the most probative evidence of record, as they examined the Veteran and reviewed the entire claims folder. Neither examiner found that the Veteran's psychiatric disability prevented him from working. Although some types of work, such as work involving interaction with others, may be impacted, this does not preclude all substantially gainful employment. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, a TDIU is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Ahmad 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.