Citation Nr: 21071797 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-05 631A DATE: December 1, 2021 ORDER Entitlement to a rating in excess of 70 percent prior to September 11, 2021, for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) prior to September 11, 2021, is granted. Entitlement to TDIU from September 11, 2021, having been rendered moot, is dismissed. FINDINGS OF FACT 1. Prior to September 11, 2021, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 2. The Veteran is service connected for PTSD; he meets the schedular criteria for consideration for TDIU. 3. The Veteran has not been able to maintain substantially gainful employment during this appeal; his service-connected disabilities preclude substantially gainful employment consistent with his educational background and occupational experience prior to September 11, 2011. 4. From September 11, 2021, the issue of entitlement to TDIU is moot as the Veteran is in receipt of a 100 percent rating for his sole service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD are not met prior to September 11, 2021. 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 TDIU are met prior to September 11, 2021. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 3. Entitlement to TDIU from September 11, 2021, is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1989 to January 1993. He testified before the undersigned Veterans Law Judge during an April 2021 hearing. This matter is on appeal from a November 2014 rating decision, and was previously remanded by the Board of Veterans' Appeals (Board) in May 2021. Additional evidence was submitted after the August 2021 Supplemental Statement of the Case. A waiver of Regional Office (RO) review is not required, as the substantive appeal was filed after February 2013. See 38 U.S.C. § 7105(e)(1). Further, a November 2021 rating decision granted a 100 percent rating for PTSD effective September 11, 2021. The Board has framed the issues accordingly. 1. Entitlement to a rating in excess of 70 percent prior to September 11, 2021, for PTSD 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent prior to September 11, 2021. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 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; or memory loss for names of close relatives, or own occupation or name. VA treatment records, the November 2014 and June 2021 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating of suicidal ideation and difficulty in adapting to stressful circumstances. Prior to September 11, 2021, the examinations show that he also had symptoms that are not listed with a specific rating, such as apathy, anhedonia, difficulty concentrating, hypervigilance, avoidance of thoughts or feelings associated with traumatic events, and fatigue. No symptoms associated with a 100 percent rating were shown until an October 2021 private PTSD Disability Benefits Questionnaire (DBQ). The private examination upon which the 100 percent rating is based showed symptoms of persistent delusions or hallucinations; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. Such symptoms were not shown in treatment records or VA examinations until that private examination. The Board finds that the severity, frequency, and duration of the Veteran's unlisted symptoms prior to September 11, 2021 more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. No flare-ups in severity were reported. Further, his symptoms of apathy, anhedonia, difficulty concentrating, hypervigilance, avoidance of thoughts or feelings associated with traumatic events, and fatigue are similar to difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships, which are contemplated by the assigned 70 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm that is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the November 2014 and June 2021 VA examinations. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating prior to September 11, 2021. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA treatment records and the November 2014 and June 2021 VA examinations indicate that the Veteran had normal speech; okay and depressed moods; dysphoric, flat and constricted affects; no hallucinations or delusions; and fair insight and judgment. Symptoms contemplated by a 100 percent rating are not shown prior to September 11, 2021. The evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Board is granting the Veteran TDIU, he was not totally socially impaired. The November 2014 and June 2021 VA examinations both show that the Veteran was living with his aunt. The Veteran has never been married, and has three children. A November 2016 treatment record shows that the Veteran saw his children weekly. The 2021 examination shows that the Veteran was generally socially isolated with minimal interpersonal interactions or leisure activities. Even with being generally socially isolated, the Veteran still maintained residence with a family member. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating prior to September 11, 2021. The criteria for a 100 percent or higher rating are not met prior to September 11, 2021, and the appeal must be denied. 2. Entitlement to TDIU prior to September 11, 2021 TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall 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 phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service connected only for PTSD, rated as 70 percent prior to September 11, 2021. Based on the forgoing, the Board may consider the claim for TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that TDIU is warranted. The Veteran has worked in a warehouse and in information technology, as shown by the November 2014 and June 2021 VA examinations. The 2014 examination report shows that the Veteran only worked part-time since separation from service. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his service-connected PTSD. The November 2014 examination shows that the Veteran left his warehouse job due to ongoing panic attacks. The June 2021 examination reveals that the Veteran's symptoms had a severe effect on his ability to work cooperatively and effectively with co-workers, supervisors, and the public; ability to understand and follow instructions; ability to retain instructions; ability to communicate effectively in writing; and ability to solve technical or mechanical problems. His symptoms also had a mild effect on ability to maintain task persistence and pace; ability to arrive at work on time; and ability to work a regular schedule without excessive absences. Given the forgoing, the Veteran's service-connected PTSD precludes him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, TDIU prior to September 11, 2021, is warranted. From September 11, 2021, the Veteran is in receipt of a 100 percent disability rating for his sole service-connected disability. Although a 100 percent rating does not necessarily render a claim of entitlement to TDIU moot, TDIU can only be awarded if it is supported by a separate disability independent of the 100 percent disability rating. See Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, as the Veteran is only service connected for a psychiatric disability, the award of a 100 percent rating for that disability renders the Veteran's claim of entitlement to TDIU moot from September 11, 2021. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Barstow, 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.