Citation Nr: 21071332 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-21 042 DATE: November 30, 2021 ORDER Entitlement to a rating of 70 percent for posttraumatic stress disorder (PTSD) prior to April 4, 2014, is granted. Entitlement to a rating in excess of 70 percent for PTSD is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from April 4, 2014. FINDINGS OF FACT 1. Prior to April 4, 2014, the Veteran's PTSD symptoms manifested as social and occupational impairment due to symptoms of hyperarousal, avoidance, suspiciousness, anxiety, depressed mood, flashbacks and nightmares causing chronic sleep impairment, impaired judgment, suicidal ideation, and difficulty adapting to stressful circumstances, including in a work or work-like setting. 2. Throughout the period on appeal, the Veteran's PTSD symptoms have not manifested as total occupational and social impairment. 3. Resolving reasonable doubt in the favor of the Veteran, since April 4, 2014, he has been unable to find and maintain gainful employment commensurate with his work and educational history due to the combined effects of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to April 4, 2014, the criteria for a disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9411. 2. For the entire period on appeal, the criteria for a disability rating of 100 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, DC 9411. 3. From April 4, 2014, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from June 1960 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Board previously remanded this matter to the AOJ for further development in January 2018, June 2019, and June 2021. The Board has advanced this case on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). Increased Rating The Veteran asserts entitlement to a rating in excess of 30 percent for PTSD prior to April 4, 2014, and in excess of 70 percent thereafter. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board must interpret various examination reports in light of the entire medical history, reconciling any contrary findings into a consistent picture. 38 C.F.R. § 4.2. The Veteran's acquired psychiatric disorder is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under the Rating Schedule, a 30 percent evaluation is warranted where the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, (weekly or less often), chronic sleep impairment, mild memory loss, (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted where the evidence shows 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where the evidence shows 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 work-like setting); and an inability to establish and maintain effective relationships. Id. Finally, a 100 percent rating is warranted 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 and place, memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in VA's Rating Schedule for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. 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). 1. Entitlement to a PTSD rating in excess of 30 percent prior to April 4, 2014 2. Entitlement to a PTSD rating in excess of 70 percent from April 4, 2014 Factual Background The Veteran first reported for VA psychological treatment in August 2010. He reported getting four hours of sleep most nights due to extreme flashbacks and described living alone after being twice divorced. He indicated he retired but remained active working as a commercial gardener selling products at a farmer's market and as a fishing guide, as well as going to city council meetings. Otherwise, he reported generally staying by himself, but noted relationships with his brother, sister-in-law, and grandchildren. The treating clinician observed the Veteran as anxious, with symptoms resembling PTSD and sleep disturbance not otherwise specified. In September 2010, the Veteran reported a long history of nightmares and flashbacks, which severely disrupted his sleep. He described a longstanding difficulty with relationships and crowds due to irritability and anger, which caused him to generally isolate on an 18-acre farm with a "trespassers will be shot" sign on the gate. He stated he continued to work as a market gardener and fishing guide, otherwise isolating but maintaining relationships with his son and other family. The clinician observed he was appropriate in appearance, with normal thoughts and speech, no active psychosis, homicidal or suicidal ideation but with "low-level suicidal thoughts." His main complaints were symptoms of avoidance and reexperiencing, and he was diagnosed with PTSD. October 2010 VA treatment records note the Veteran continued to describe nightmares which made him "scared to close [his] eyes," and difficulty when around people or being touched. During a November 2010 VA examination he reported being close to his son and still working as a commercial gardener and river guide, although working with a maximum of two people at a time. He described intrusive thoughts without flashbacks, daily nightmares, and avoiding crowds, although he reported meeting with a few close acquaintances regularly. The examiner observed normal speech and thought processes, a mostly euthymic mood, appropriate affect, full orientation, good insight and judgment, and no signs of psychosis. The Veteran denied homicidal or suicidal ideation. The examiner concluded that the Veteran's symptoms manifested as persistent and mild and did not preclude employment or have an impact on his social functioning, with no impairment in thought processes or communication noted. January 2011 VA treatment records note the Veteran was appropriate in appearance, with normal speech and thought processes, full range of affect with congruent mood, and no sign of hallucinations. The Veteran reported negative experiences with previously prescribed medication and voiced his preference to avoid triggers and maintain his current activities and interests as an alternative to medicating. He adamantly denied homicidal or suicidal ideation, but stated he was unsure he could trust his judgment when having recurring nightmares or flashbacks and so choose to isolate. The Veteran identified close relationships with his brother and son and stated he was currently working on building one with his daughter. In April 2011, the Veteran complained about the young age of his treating psychologist and asserted an additional one was not qualified to treat him. He stated that going into crowds was extremely difficult for him, but said he had breakfast with a friend every two weeks and obtained additional social support from his brother and son. He denied suicidal ideation but indicated he frequently thinks about how he would kill himself and sleeps with a loaded pistol, stating "but [I] would never do it." The treating clinician noted the Veteran was appropriate in appearance, with an angry mood and affect bouncing between irritated and euthymic which was not congruent with his stated mood, while he exhibited normal thoughts and speech with no signs of psychosis. The clinician noted fairly intense symptoms consisting mostly of hyperarousal and avoidance, with a mildly increased propensity for violence, although with no intent or particular target. May 2011 VA treatment records note the Veteran presented as appropriate in appearance, with normal thoughts and speech as well as full range and affect with congruent mood. He voiced displeasure with a perceived inadequacy of care compared to "current vets." The Veteran reported multiple flashbacks every night, allowing him a maximum of four hours sleep, and stated that "symptoms of PTSD limit virtually every area of [my] life." He described a supportive relationship with one brother and denied suicidal or homicidal ideations but indicated his judgment might be impaired as a result of chronic nightmares and flashbacks. In March 2012 correspondence, the Veteran described experiencing flashbacks and very disturbing nightmares, but stated that prescribed medications had lessened their severity so long as he avoids any situation that could act as a trigger. In March 2013 correspondence, a friend of the Veteran's described him as was always slightly withdrawn, with worsening anger over the past three years. He indicated the Veteran generally stays on his farm, only coming into town when absolutely necessary and shopping early in the morning or late at night, as well as avoiding certain cashiers and locking the gate to his property in order to discourage visitors. March 2014 VA treatment records indicate the Veteran reported little interest or pleasure in doing things, as well as feeling down, hopeless, or depressed for several days. The Veteran was afforded a VA psychological examination in April 2014. The examiner noted that the Veteran lived alone on a fenced farm and had few friends, including a close friend with whom he talks daily, as well as a son whom he sees every two days. The Veteran described spending his time tending to his organic garden and beehives as well as attending city council meetings with his back against the wall. He indicated he stopped going to the farmers market three years earlier due to discomfort with the crowds, and that he was a fishing guide for 26 years until retiring two years ago. The Veteran reported feelings of detachment and estrangement from others as well as irritable behavior and angry outbursts with little or no provocation. The examiner noted the Veteran's PTSD seemed to have worsened since his last examination, manifesting as occupational and social impairment with reduced reliability and productivity due to symptoms of anxiety, suspiciousness, chronic sleep impairment and difficulty adapting to stressful circumstances, including in a work or work-like setting. His mood was observed to be euthymic with full affect and he appeared fully oriented to time and place. In September 2014, he described symptoms of depression, nervousness, and mood swings to a treating VA clinician. The Veteran was afforded an additional PTSD examination in November 2020, during which he presented as appropriate in appearance, with "resentful" feelings and irritable affect. He reported that since his last examination he had married his current wife in July 2016 after dating for approximately two years. He described the relationship as going "extremely well," and indicated he was getting along well with his children. The Veteran reported he stopped attending city council meetings approximately six years earlier, and that he enjoyed working around his farm, hunting, fishing, and the local farmer's market. He denied any employment since his last examination, stating he retired in 1995. The Veteran reported problems being around too many people at once but noted that he had not sought treatment in around six years because he had learned to control his symptoms, although he remains constantly "on guard" and must leave a store if someone accidentally bumps into him. He was unable to recall any further PTSD symptoms. The examiner concluded the Veteran's PTSD manifested as occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and impaired judgment. In January 2021 correspondence to his elected representative, the Veteran asserted that his last VA examiner unqualified and was trying to remove veterans' disability benefits. As noted above, the Board previously remanded this matter for further development. Specifically, the Board noted the inconsistent employment information in the claims file and instructed the AOJ to address the Veteran's employment history and the impact of his PTSD symptoms on his ability to work. In a July 2021 addendum opinion, a VA examiner noted that there was little information of record specific to occupational impairment associated with PTSD symptoms, but that according to his last two VA examinations he had not worked in approximately nine years. The examiner indicated that a review of the 2020 examination "suggests that symptoms are frequent, triggered by interactions with others, and have been present for many years." Analysis After a review of the evidence of record, the Board finds that prior to April 4, 2014, the Veteran's PTSD symptoms manifested as social and occupational impairment due to symptoms of hyperarousal, avoidance, suspiciousness, anxiety, depressed mood, flashbacks and nightmares causing chronic sleep impairment, impaired judgment, suicidal ideation, and difficulty adapting to stressful circumstances, including in a work or work-like setting. The Board particularly notes that while the Veteran has consistently denied explicit suicidal ideation or an intent to end his life, VA treatment records for this period document instances of "low level suicidal thoughts," or the Veteran reporting that he frequently thinks about how he would kill himself. In this regard, the Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Court specified that VA must not require "more than thought or thoughts to establish the symptom of suicidal ideation," and may not require that the Veteran have "been hospitalized or treated on an inpatient basis" to establish suicidal ideation because that "imposes a higher standard than the criteria in the DC for mental disorders." Id. Moreover, the Court cautioned VA not to conflate the risk of "suicidal ideation, which VA generally considers indicative of a 70 [percent] evaluation, and his risk of self-harm, the persistent danger of which VA generally considers indicative of a 100 [percent] evaluation." Id. As applied, the passive but consistent suicidal ideation which VA clinicians have recorded at several of the Veteran's psychological treatment sessions is sufficient to establish the suicidal ideation symptom consistent with a 70 percent rating in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Therefore, when combined with the other symptoms noted above, to include an inability to adapt to stressful circumstances, the Board finds that the Veteran displayed symptomatology reflective of the 70 percent rating criteria prior to April 4, 2014. To the extent specified above, the appeal is granted. However, the Board does not find that the Veteran's acquired psychiatric disorder has manifested as symptomatology more closely contemplated by the 100 percent schedular rating for mental disorders during the appeal period. While the Board acknowledges the presence of suicidal ideation, the Veteran's passive suicidal thoughts do not rise to the level of a persistent danger of hurting himself or others as listed in the higher rating criteria. A review of the record reveals no acts of violence towards others, and the Veteran has unswervingly denied thoughts of actively hurting himself or others in any way, being judged by VA clinicians to generally manifest a "low" risk of causing harm to himself or others. The Veteran has also admitted to interpersonal difficulties and an aversion to strangers but has been able to maintain relationships with his wife, brothers, son and a friend, which he has described as supportive and beneficial. Finally, both the medical and lay evidence of record indicate the Veteran's cognitive abilities appear to be fully intact. Therefore, the Board finds that the Veteran's PTSD symptoms have not caused total occupational and social impairment, and the criteria for a 100 percent rating have not been met during the appeal period. 3. Entitlement to a TDIU As reflected in March 2013 correspondence, the Veteran asserts an inability to work as a result of his service-connected disabilities, specifically his PTSD and complications from his diabetes. In addition to his PTSD symptoms, now rated a uniform 70 percent throughout the appeal period, his service-connected disabilities include partial amputation of the left big toe with a noncompensable scar since March 2012, diabetes mellitus since October 2012, and bilateral upper and lower extremity neuropathy since April 2014. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran has met the schedular requirements for PTSD during the appeal period. For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.1. Factors to be considered, however, will include the Veteran's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and 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 physical and mental capabilities of the claimant. To receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). However, the Court has indicated that a veteran's ability or inability to engage in substantial gainful activity has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore, 1 Vet. App. at 83. In service, the Veteran was an aircraft loadmaster technician for 19 years. According to information provided during VA treatment, after retiring from the Air Force he went to college for approximately three years and took courses in psychology but did not finish school. He then became certified as a marine technician and went to work in maintenance-type positions, before working primarily as a commercial gardener and fishing guide. In March 2013 correspondence, the Veteran reported that his in-service toe injury caused him to protect that appendage after service and that beginning in 2008, he began experiencing extreme pain in his left foot, which caused him to occasionally lose his balance and alter his gait. The Veteran was afforded a VA foot examination in April 2014. The examiner noted a left great toe deformity since service, which was ultimately partially amputated (without removal of the metatarsal head) in March 2012 due to "a sensitivity issue." The remaining functionality of the Veteran's foot was unremarkable and the examiner, noting that he had worked as a fishing guide for 25 years with the condition, stated that it did not impact his ability to work. The Veteran was afforded a VA diabetic examination in September 2014. The examiner noted a diagnosis of diabetes mellitus type II and observed the Veteran had not experienced a loss of weight or strength or been hospitalized as a result of the condition. The Veteran reported moderate intermittent pain and paresthesias in the bilateral lower extremities, without numbness. He exhibited full muscle strength but decreased deep tendon reflexes in the right ankle and absent in the left. His light touch sensation was generally intact but was decreased in the right ankle/lower leg and left foot/toes and absent in the right foot/toes. The examiner concluded the Veteran manifested mild incomplete paralysis of the bilateral upper extremities as well as moderate and moderately severe incomplete paralysis of the left and right lower extremities, respectively. The examiner opined the Veteran's diabetes created no functional impact on his ability to work, but that his peripheral neuropathy caused him to require a 30 minute to one hour break three times daily. In a TDIU claim, the Veteran bears the burden of establishing entitlement by providing VA with his earned income for the entire appeal period. Here, it appears the Veteran worked as a commercial gardener and fishing guide after retirement from maintenance but stopped at some point between May 2011 and his April 2014 psychological examination. However, the Board is not able to determine a precise date when the Veteran ceased working, nor whether his employment as a fishing guide and commercial gardener was financially gainful. The Board notes that the AOJ has asked the Veteran to submit a VA Form 21-4192 Application for Increased Compensation Based on Unemployability, without response. The burden on the Veteran in providing VA with his income information is not an onerous one but is a necessary one to be able to determine his TDIU eligibility for all times during the appeal period. While the record suggests there may be TDIU eligibility for some time prior to April 4, 2014, the Board cannot factually ascertain from the record which date(s), if any, the Veteran did or did not earn substantially gainful income. As such, the award of a TDIU prior to this date is not warranted. From April 4, 2014, the evidence of record indicates the Veteran was no longer employed. The April 2014 VA psychological examiner noted his PTSD symptoms manifested as occupational and social impairment with reduced reliability and productivity due to symptoms including difficulty adapting to stressful circumstances in a work or work-like setting, while a contemporary VA examiner noted his diabetic neuropathy required him to take several prolonged breaks throughout the day. An addendum to his November 2020 PTSD examination notes that he has "significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict)." Finally, the April 2014 examiner noted the Veteran had ceased attending the farmer's market due to increased anxiety in crowds, while the July 2021 addendum observed that since 2014 his symptoms were frequent and triggered by interactions with others. The Board notes the technical nature of the Veteran's training and post-service expertise, as well as both the physical and social nature of his post-service employment. Although, given the evidence of record, the Board cannot state with any degree of certainty whether the Veteran ceased employment due solely to his PTSD or physical disabilities, it will resolve reasonable doubt in his favor. As such, the Board finds that his service-connected disabilities have combined to prevent him from finding and maintaining gainful employment since April 4, 2014, the date his lack of employment was confirmed. See November 2020 PTSD Disability Benefits Questionnaire; Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits.") M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.