Citation Nr: 21073204 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-65 099 DATE: December 7, 2021 ORDER 1. Entitlement to an increased rating in excess of 70 percent for post-traumatic stress disorder (PTSD), with secondary depression and substance abuse, is denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms do not more closely approximate total occupational and social impairment. 2. The Veteran's service-connected PTSD precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2020). 2. The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2002 to March 2006. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. 1. Entitlement to an increased rating in excess of 70 percent for PTSD, with secondary depression and substance abuse, is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2020). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Veteran contends that his PTSD symptoms warrant a 100 percent rating. 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). To be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. 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. 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 for 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; 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. 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, own occupation or own name cause. VA and private treatment records, the multiple VA examinations, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating including near constant panic attacks, impaired impulse control, difficulty in adapting to stressful circumstances, suicidal ideation, neglect of personal appearance and hygiene, and an inability to establish and maintain effective relationships. Other symptoms include depression, avoidance tendencies, sleep impairment, anxiety, hypervigilance, mild memory loss, concentration difficulties, nightmares, and feelings of detachment. Of note, the Veteran's treatment records do not show symptoms such as gross impairment in thought processes or communication; 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, own occupation, or own name. Regarding occupational and social impairment together, the Board finds that the Veteran's psychiatric symptoms do not reflect total impairment during the appeal period. Indeed, the Veteran was enrolled in college courses and obtained his associate degree. He also attended a gym on a frequent basis, participated in group therapy, and enjoyed gardening as a hobby. Although he reported a lack of communication with family members, he described having supportive friendships and was involved in several relationships during this period of time. As such, the evidence of record does not support a finding of total social impairment. The February 2020 VA examiner noted a neglect of the Veteran's personal hygiene, while the Veteran reported difficulty maintaining his residence at the August 2021 Board hearing. However, such symptomatology is not of the frequency or severity to suggest that he is unable to maintain minimal personal hygiene or is unable to perform activities of daily living as to warrant a 100 percent rating. Additionally, the Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). 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. Indeed, the Veteran regularly denied thoughts, intent, or a plan involving self-harm in the evidence of record. 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. The criteria for a 100 percent rating are not met and the appeal must be denied. 2. Entitlement to a TDIU is granted. 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 as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment cannot be considered substantially gainful employment. Generally, marginal employment exists when a veteran's earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16(a) (2020). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Throughout the appeal period, the Veteran combined rating for his service-connected disabilities has been at least 80 percent, with PTSD rated 70 percent disabling. As such, the Veteran has met the schedular requirements for TDIU. 38 C.F.R. § 4.16 (a). In his August 2016 Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked in December 2013 as a crew leader at The Center for Social and Environmental Stewardship. He reported working about 30 hours weekly while in this position, which ended due to a lack of funding. Prior to that time, he held various part-time positions, including in construction and electric work. The Veteran further reported that he obtained his associate degree over a period of six years. There is no evidence to reflect that the Veteran has been gainfully employed during the appeal period. At the February 2020 VA examination, he reported having five part-time jobs over the past five years, none of which lasted a full year. He also reported regularly missing work due to stress and anxiety. The December 2016 VA psychological examiner noted that the Veteran had been fired from multiple jobs due to an inability to interact appropriately with others and acknowledged his difficulty with civilian employment settings. She further indicated that the Veteran had a lack of interest and motivation, which prevented him from engaging in occupational settings. The examiner concluded that the Veteran's PTSD had a significant impact on his occupational functioning. In an August 2021 private opinion letter, Dr. C.E. opined that the Veteran would continue to struggle with sustaining gainful employment due to his PTSD. Specifically, he noted that the Veteran's concentration difficulties and mood disturbances impaired his ability to function in occupational settings. The Board acknowledges that the Veteran has briefly held part-time positions during the appeal period. However, as none of these positions lasted for a significant period of time, it would not be considered substantially gainful employment. At the February 2020 VA examination, one position was noted to have lasted for three months, while another position only included 12 hours of work per week. Additionally, in an April 2018 statement, the Veteran reported working for only one day during 2017. As such, the record reflects that the Veteran has been primarily unemployed throughout the appeal period and his employment history is not indicative of substantially gainful employment. Furthermore, the probative medical evidence of record reflects that the Veteran's PTSD and its associated symptomatology renders him unemployable. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350 (2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floor v. Shinseki, 26 Vet. App. 376, 381 (2013). Based upon the evidence of record, the Board finds that it is at least as likely as not the Veteran is unemployable due to his service-connected PTSD. As noted above, he meets the schedular requirements, he has not obtained substantially gainful employment during this period, and his disability has been shown to be severe enough to preclude employment. Indeed, the evidence of record supports a finding that the Veteran's psychological symptomatology has significantly limited his ability to find and maintain employment. As such, entitlement to a TDIU is granted. (Continued on the next page) The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.