Citation Nr: 21072980 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-63 551 DATE: December 7, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to total disability due to individual unemployability prior to September 10, 2021 is denied. FINDINGS OF FACT 1. For the entire period on appeal the Veteran's posttraumatic stress disorder (PTSD) was manifested by occupational and social impairment with deficiencies in most areas with no evidence of total occupational and social impairment. 2. The preponderance of the evidence establishes that prior to September 10, 2021, the Veteran's service-connected disabilities did not preclude him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for PTSD are not 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 entitlement to total disability due to individual unemployability prior to September 10, 2021 are not met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran and his wife testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. This matter was previously remanded in August 2021 for further development. Upon review, the Board finds that all remand directives have been complied with. Stegall v. West, 11 Vet. App. 268 (1998). Rating Principles: PTSD The Veteran is currently service connected for PTSD with a rating of 70 percent. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, under the General Rating Formula for Mental Disorder. The criteria for a 100 percent rating are 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. The Board notes that the Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Id. 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. Id. 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to a total disability rating of 100 percent for his PTSD. At his Board hearing, the Veteran and his spouse testified that the Veteran's symptoms include short term memory loss, lapses in judgment, unprovoked irritability, anger, and sleep disturbance. The Veteran was afforded a VA examination in May 2015. The examiner noted occupational and social impairment with deficiencies in most areas. Subjectively, the Veteran noted symptoms including, thinking about the past more and more, quickly becoming irritable, and getting upset when people talk about things about which they know nothing. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, suicidal ideation, and impaired impulse control. In a July 2015 addendum to the May 2015 VA examination the examiner noted that the changes in the Veteran's functional quality of life related to PTSD appear to revolve primarily around social avoidance. The examiner noted that the Veteran's PTSD appears to contribute to his difficulties occupationally as well as socially to a moderate extent and appeared to manifest in some difficulties and some decreased work efficiency at times when the Veteran was working. The examiner opined that the level of impairment created by PTSD symptoms alone would not render the Veteran unable to secure or maintain substantially gainful employment. The Veteran was afforded a new VA examination in October 2017. The examiner noted occupational and social impairment with reduced reliability and productivity. Similar to his May 2015 VA examination the Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, disturbance of motivation and mood and impaired impulse control such as unprovoked irritability with periods of violence. The Veteran was afforded another VA examination in September 2021. The examiner noted occupational and social impairment with deficiencies in most areas. Subjectively, the Veteran reported being married for ten years. The Veteran described his current marital and family relationships as "I don't see my kids or grandkids too much. Then at Christmastime when they come around it's not a good time. It gets too loud, and I have to get out of the room. My wife gets upset because I don't want to be around anyone. She knows a lot about me, I did better when I was working as a coal miner underground, but since then things started coming up to my mind and I just don't need anyone around me. I don't think she understands that. We get into arguments quite a bit. She asked me if I wanted her to leave just the other day, because I get really loud. Then I end up having to get outside and go calm down. I apologize but am getting tired of having to apologize, I know it's not fair to her." The Veteran described current social functioning as "I go to VFW meetings and know some people there, but I don't call them friends. I pretty much stay to myself. I mean I will talk to them, but I don't trust anyone." The Veteran described his usual recreational activities as fishing and woodwork; however, stated he also goes camping sometimes. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances and impaired impulse control. In addition to VA examination the record contains VA treatment records which show that the Veteran consistently attended mental health treatment throughout the period at issue. The Veteran's treatment record shows PTSD symptoms of anger, irritability, disturbance of motivation and mood as well as sleep disturbance. However, treatment records also frequently note logical, and goal directed thought process, intact thought content, grossly intact memory, intact concentration, intact abstract thinking and fair insight and judgment. Overall, the record shows that the Veteran has significant symptoms related to PTSD. However, the evidence does not show total occupational and total social impairment. Instead, the record shows that despite the Veteran's PTSD symptoms he has been able to attend group therapy, maintains a 10-year marriage and frequently has fair judgment, intact memory, and concentration. This suggests that although the Veteran does not like to be around a lot of people, he is able to engage in some social activity. Based on the evidence of record, entitlement to a 100 percent disability rating for PTSD is not warranted. Entitlement to a total disability rating for posttraumatic stress disorder is denied. TDIU Legal Criteria Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disabilities to bring the combination to 70 percent or more. For the purposes of one 60 percent disability or one 40 percent disability in combination, the following will be considered as one disability (1) Disabilities of one or both upper extremities, or of one or both lower extremities including the bilateral factor, if applicable (2) disabilities resulting from common etiology or a single accident (3) disabilities affecting a single body system (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular criteria for TDIU is not met, a TDIU may still be awarded in all cases where service-connected disabilities preclude gainful employment regardless of the percentages awarded under 38 C.F.R. § 4.16(b). However, the Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10(2001). 2. Entitlement to total disability due to individual unemployability prior to September 10, 2021. The Veteran filed an application for total disability due to individual unemployability (TDIU) in May 2015. A September 2021 rating decision granted TDIU effective September 10, 2021. Thus, the question before the Board is whether the Veteran is entitled to TDIU prior to September 10, 2021. The Veteran is service connected for PTSD, tinnitus, and left ear hearing loss. Based on his combined ratings the Veteran meets the rating criteria for TDIU during the entire period on appeal. In his May 2015 application to increased compensation based on unemployability the Veteran alleged that he is unable to work as a result of his service-connected PTSD. During his Board hearing the Veteran testified that he stopped working in 2006 due to a back injury (for which he is not service connected). The Veteran further testified that he continues to have back issues which limits his ability to bend. With respect to his service-connected disabilities, the Veteran testified that his PTSD interferes with his ability to interact with others and to be in settings such as the grocery store. The Veteran did not allege any limitations as a result of his service-connected tinnitus and hearing loss. Vocationally, the Veteran has a high school education, and a history of employment at a coal mine from March 1974 to September 2003. Overall, the record shows that the Veteran's PTSD does interfere with his ability to interact with others. However, in a July 2015 addendum opinion, the examiner opined that the level of impairment created by PTSD symptoms alone would not render the Veteran unable to secure or maintain substantially gainful employment. Consistent with this opinion, while the record shows that the Veteran has some difficulty interacting with others as well as difficulty with complex instructions, it does not establish that the Veteran would be unable to work in an environment that does not require interaction with others and involves simple, repetitive instructions. Moreover, even considering the Veteran's service-connected disabilities of hearing loss and tinnitus, the Veteran may have difficulty hearing others but could continue to work in an environment that does not require verbal communicating with others such as data entry or a labor type activity such as landscaping or factor work. Further, the Veteran's service-connected disabilities do not result in any physical limitations. Ultimately, the evidence of record does not establish that for the period prior to September 10, 2021 the Veteran was unable to engage in substantially gainful employment as a result of his service-connected disabilities. Further, the record contains no opinion that the Veteran is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. Based on the Veteran's own testimony his primary limitation is related to his back injury, for which he is not service connected. TDIU can only be granted based on limitations resulting from his service-connected disabilities. Here, the Veteran could maintain employment in an environment that does not require interaction or verbal communication with others and involves simple, repetitive actions. Based on the evidence of record, entitlement to total disability due to individual unemployability is not warranted. Entitlement to total disability due to individual unemployability is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.