Citation Nr: 21073473 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-02 740 DATE: December 8, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. The Veteran's service-connected PTSD does not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD have not been 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 a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1966 to March 1968, including service in the Republic of Vietnam. This appeal comes to the Board of Veterans' Appeals (the Board) following a March 2016 rating decision that granted entitlement to service connection for PTSD and assigned a 50 percent rating effective September 15, 2015. In the same decision, the Agency of Original Jurisdiction (AOJ) denied the assignment of a TDIU. The Board previously remanded these claims in April 2019, concluding that the Veteran's representative suggested that his PTSD symptoms had worsened and that his claim for a TDIU was inextricably intertwined with his claim for an increased rating for PTSD. 1. Entitlement to a Rating in Excess of 50 Percent for PTSD Disability ratings are determined in accordance with the Department of Veterans Affairs (VA) Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the appeal arises from an initial assigned rating, the Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). PTSD is rated under the General Formula for Mental Disorders (General Formula). Under the 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, 114-18 (Fed. Cir. 2013). Under the General Formula, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is assigned when there is evidence of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. 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 oneself 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. 38 C.F.R. § 4.130, DC 9411. The list of symptoms under the rating criteria are examples of symptoms that would warrant the rating, but they are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the symptoms associated with that percentage or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio, 713 F.3d at 117-18. The Veteran's January 2016 VA examination show that the Veteran's PTSD was manifested by symptoms associated with a 50 percent rating, such as flattened affect, circumstantial, circumlocutory, or stereotyped speech, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He also exhibited some symptoms associated with a 30 percent rating, including depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, or recent events. The Veteran was also noted to have poor dentition, which is similar to neglect of personal appearance and hygiene listed under the criteria for a 70 percent rating under the General Formula. Overall, the examiner concluded that the level of impairment caused by the Veteran's PTSD symptoms was characterized by occupational and social impairment with reduced reliability and productivity, which is the level of impairment contemplated by a 50 percent evaluation. The Veteran received a second VA examination in January 2020. The examiner concluded that the Veteran exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, which is the level of impairment associated with a 10 percent rating. Moreover, all of the Veteran's reported symptomsdepressed mood, anxiety, and chronic sleep impairmentare associated with a 30 percent rating. The examiner also opined that the Veteran's PTSD had resolved and that his symptoms were attributable to adjustment disorder with mixed anxiety and depressed mood due to stress from poor dentition, ongoing financial strain, and inadequate plumbing. In other words, and according to the VA examiner, the psychiatric symptoms reported during the January 2020 VA examination are not due to his service connected PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). VA treatment records show that the Veteran has a strong tendency to isolate, low energy, tiredness, disturbing nightmares and memories of his active service, self-esteem problems, excessive worrying, disordered eating, concentration problems, and mood swings. Although these symptoms are not associated with a specific rating under the General Formula, many of them approximate symptoms associated with a 50 percent rating, such as disturbances of motivation and mood. Notably, the Veteran did not repeatedly endorse these problems throughout his mental health treatment and his two VA examinations. Accordingly, these unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The evidence does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the majority of the Veteran's PTSD symptoms were either contemplated by or more consistent with a 30 or 50 percent rating. The Board acknowledges that the evidence shows that the Veteran experienced neglect of personal appearance and hygiene as shown by poor dentition and his lay statement notes symptoms including speech intermittently illogical, obscure, or irrelevant, continuous depression affecting the ability to function appropriately and effectively, unprovoked irritability, and difficulty in stressful environments. However, even considering the Veteran's competent and credible lay statements regarding his symptomatology, the weight of the evidence does not demonstrate the level of impairment associated with a 70 percent rating. The evidence does not show that he experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The record also includes findings that the Veteran frequently reported having a close relationship with his mother and a good relationship with his half-brother. His treatment records similarly demonstrate that he has a supportive relationship with a friend who helped him obtain mental health care through VA. While the Veteran reported a tendency to self-isolate, this appeared to be linked to his self-esteem rather than his PTSD symptoms; during the January 2020 VA examination, he specifically reported that he "would be doing a lot more" if his teeth were fixed. Furthermore, although the Veteran is not currently working, this is because he retired from his previous employment. He currently performs odd jobs for his neighbors in exchange for assistance in obtaining food, a phone, and Internet access. Given the foregoing, the Board concludes that a rating in excess of 50 percent is not warranted at any point during the period on appeal. The Veteran's claim for an increased rating for PTSD must be denied. 2. Entitlement to a TDIU The Veteran seeks a TDIU. He contends that his service-connected PTSD has rendered him unemployable because he is a "shut-in." A 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 a 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. 38 C.F.R. § 4.16(a). 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, 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, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). 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. See Ray, 31 Vet. App. at 73. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. See Ray, 31 Vet. App. at 73. 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity). See Ray, 31 Vet. App. at 73. The Veteran's only service-connected disability is PTSD, for which he has been in receipt of a 50 percent rating since September 15, 2015. The Veteran does not meet the percentage standards set forth in § 4.16(a). The Board may not consider his claim for a TDIU in the first instance. Rather, if it is shown that the Veteran is unemployable by reason of his service-connected disability. 38 C.F.R. § 4.16(b), the question of TDIU would be referred to the Director, Compensation Service. In that regard, and as explained in Ray, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. at 66. In Snider v. McDonough, No. 19-6707 (U.S. Vet. App. Nov. 19, 2021), the United States Court of Appeals for Veterans Claims (the Court) held that, when denying referral for an extraschedular TDIU under 38 C.F.R. § 4.16(b), the Board must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities and (2) that a TDIU is not warranted because service-connected disabilities did not render the veteran unemployable. For the reasons that follow, the Board finds that (1) there is insufficient evidence to substantiate a reasonable possibility that the Veteran here is unemployable by reason of his service-connected PTSD and (2) the Veteran's PTSD did not render him unemployable. The record shows that the Veteran graduated from high school. While in school, he held part-time employment, often as a busboy. He reports that he worked as a heavy equipment operator for 17 years until about 1996, at which point he left his job with the intent to retire. Unfortunately, per his own report, he later discovered that he had not worked long enough to retire. His representative stated that the Veteran "became angry" and "refused to go back to work" upon finding out that he could not retire. During his January 2020 VA examination, he noted that he was last employed as a truck driver for his friend in approximately 2011. He currently works in a custodial capacity, doing odd jobs for his neighbors in exchange for food, a phone, and Internet access. The Board concludes that there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. Neither the January 2016 nor the January 2020 VA examiner indicated that the Veteran's PTSD symptoms affected his ability to secure and maintain employment. VA treatment records similarly do not indicate that the Veteran's unemployment is due to his PTSD symptoms. Rather, the record clearly indicates that the Veteran's unemployment is due to a misunderstanding of the requirements for retirement and the subsequent frustration and anger about that situation. As there is no evidence showing a reasonable possibility that the Veteran is unemployable as a result of his PTSD, referral of the claim for extraschedular consideration is not warranted. Furthermore, as the Veteran's PTSD did not render him unemployable, a TDIU is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.