Citation Nr: 21072591 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-25 409 DATE: December 3, 2021 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), alcohol use disorder, and bruxism is denied. REMANDED The claim for a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's PTSD with major depressive disorder (MDD), alcohol use disorder, and bruxism does not result in total occupational and social impairment. CONCLUSION OF LAW The criteria in excess of 70 percent for an acquired psychiatric disorder, to include PTSD with MDD, alcohol use disorder, and bruxism have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to May 1969. This appeal to the Board of Veterans' Appeals (Board) is from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Board, in part, remanded the matters on appeal to have VA schedule the Veteran for a VA examination to determine the current severity of the service-connected PTSD for the period from February 16, 2017. VA examined the Veteran in August 2021. See August 2021 PTSD Disability Benefits Questionnaire (DBQ). Thus, the requested development has been accomplished and the appeal has returned to the Board for further appellate consideration. 1. A rating in excess of 70 percent for PTSD with MDD, alcohol use disorder, and bruxism is denied. The Veteran seeks a rating in excess of 70 percent for his PTSD with MDD, alcohol use disorder and bruxism. He contends that his symptoms have increased in severity for the period on appeal and, thus, a 100 percent rating for his psychiatric disability is warranted. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria authorize the Veteran's currently assigned 70 percent rating when psychiatric symptomatology causes 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. Id. A 100 percent rating is warranted when psychiatric symptomatology causes 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. As addressed above, in order for a Veteran to be eligible for a 100 percent rating, he must have total occupational and total 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. 38 C.F.R. § 4.130. VA mental status examinations of the Veteran, performed in August 2017, March 2019 and August 2021 show that he experienced anxiety, panic attacks that occur weekly or less often; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting; and fleeting suicidal ideation. The August 2017 VA examiner described the Veteran's PTSD with MDD, alcohol use disorder and bruxism to be moderate/severe, per the Veteran's self-report during that examination and review of mental health treatment records. The August 2021 examiner reported that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. While the Veteran reported having had fleeting suicidal thoughts at the March 2019 examination, there was no evidence of homicidal ideation in the past, mania, or active psychotic symptoms. With respect to social interactions, total social impairment as a result of his PTSD is not shown. While the Veteran reported being divorced, he indicated that he had a good relationship with his two (2) living children and service dog(s) and that he enjoyed working out. With respect to occupational impairment, the August 2021 VA examiner reported that the Veteran had done occasional part-time work for a friend's business managing storage units. While it is unclear whether this part-time work managing storage, units constitutes a protected employment, the Veteran has not made any assertions that any accommodations were made during the period of this employment for any of his service-connected disabilities. See 38 C.F.R. § 4.16 (a). Moreover, the issue of entitlement to TDIU has been remanded as discussed in the section below. On remand, the Agency of Original Jurisdiction (AOJ) should consider whether the Veteran's part-time employment managing storage units is marginal employment. Therefore, while the Veteran is able to hold a job, maintain relationships with his two (2) children and take care of his service dog(s), he does not have total occupational and total social impairment as contemplated by a 100 percent disability rating under DC 9411. The medical evidence demonstrates that the Veteran's social and occupational functioning is limited by his PTSD with MDD, alcohol abuse disorder and bruxism due to such symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, difficulty adapting to stressful circumstances, impaired impulse control and difficulty establishing and maintaining effective work and social relationships-but those symptoms are specifically listed in the criteria for the rating of 70 percent. The weight of the evidence is against a finding that the Veteran has total social and occupational impairment as contemplated by a 100 percent schedular evaluation. Accordingly, his request for a schedular rating higher than 70 percent for service-connected PTSD with MDD, alcohol use disorder and bruxism for the period from February 16, 2017 to the present is denied. REASONS FOR REMAND ii) Entitlement to a TDIU rating is remanded. The Veteran submitted his most recent application for TDIU in May 2020. On his VA Form 21-8940, the Veteran stated that he had become too disabled to work due to his PTSD with MDD, alcohol abuse and bruxism. He related that he had last worked in July 2019 as a maintenance contractor. As noted above, the record suggests that the Veteran may have performed some part-time work managing storage facilities. It is unclear if this employment is marginal or gainful employment. Therefore, the Board finds that a remand is required in order to allow the Veteran to complete a new TDIU form with an updated employment history that includes a clarification as to the nature and extent of any part-time work in managing storage facilities as previously mentioned by the Veteran. The matter is REMANDED for the following action: 1. The AOJ should provide the Veteran with appropriate notice regarding the TDIU claim and request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, describing the Veteran's employment history from July 2019 to the present. The Veteran should be asked to clarify the nature and extent of any part-time work in managing storage facilities. 2. The AOJ should ask the Veteran to submit any additional evidence in support of a TDIU claim, to specifically include information on his work history, salary, and educational history. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.