Citation Nr: 21075061 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-21 030A DATE: December 17, 2021 ORDER An initial disability rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to November 19, 2020, is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a rating in excess of 50 percent from November 19, 2020, for PTSD is denied. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to November 19, 2020, the severity, frequency, and duration of the Veteran's PTSD symptoms most nearly approximated occupational and social impairment with reduced reliability and productivity. 2. From November 19, 2020, the severity, frequency, and duration of the Veteran's PTSD did not most nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 3. The Veteran's service-connected disabilities have not prevented him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to November 19, 2020, the criteria for a disability rating of 50 percent, but no higher, for PTSD have 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 a rating in excess of 50 percent from November 19, 2020, 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. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2003 to April 2009. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, February 2021, and June 2021, the Board remanded the Veteran's appeal to the RO for further evidentiary development. The Board's June 2021 remand directed the RO to (1) obtain all outstanding VA treatment records from 2013 to the present; (2) request authorization from the Veteran and obtain outstanding private treatment records; and (3) after completing (1) and (2), undertake any further development found to be necessary in light of the new records. Pursuant to the Board's remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with June and July 2021 letters to the Veteran. The Veteran did not respond to the RO and therefore the RO could not obtain the private treatment records. The RO obtained updated VA treatment records in September 2021. Therefore, the RO substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial rating in excess of 30 percent prior to November 19, 2020, and in excess of 50 percent thereafter for posttraumatic stress disorder (PTSD) In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD, and the General Rating Formula for Mental Disorders, which provides the following criteria: A 30 percent rating is to be assigned in cases of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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; 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 work-like setting); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. June 17, 2011, to November 19, 2020 The Veteran is currently assigned a 30 percent disability rating for PTSD for the period from the effective date of service connection on June 17, 2011, to November 19, 2020. Turning to the evidence for this period, the Veteran's July 2011 Statement in Support of Claim reports having nightmares, an increased focus on schoolwork and increased achievement in schoolwork, marital arguments, feeling cold and emotionless, carrying a firearm at all times (with a concealed weapons permit), flashbacks, a dislike of crowds, and yelling at his wife. The Veteran said that he was waiting for the Tampa Fire Department to hire him at this time. In August 2011, the Veteran underwent a Disabilities Benefits Questionnaire for PTSD. The examiner noted that the Veteran was married in December 2005, was still married at the time of this examination, had a best friend, attended a VA support group, and was still trying to make friends because he had lived in the area only two years. The Veteran said that he was "officially" unemployed at this time, but he had recently completed classes pre-requisite for a paramedic to nursing program. He was waiting to hear from the Tampa Fire Department. The Veteran had recurrent and distressing recollections of his stressor event, recurrent distressing dreams of the event, and intense psychological distress at exposure to internal or external cues concerning the event, difficulty falling asleep, irritability or outbursts of anger, hypervigilance, and an exaggerated startle response. The Veteran said that he was fairly composed on most days and denied a depressed mood and symptoms associated with mania, but described having limited anxiety attacks. The Veteran continued to receive therapy at VA. The Veteran had good hygiene and was adequately groomed and appropriately dressed; his attitude toward the examiner was pleasant and cooperative although his mood was anxious. The examiner concluded that the Veteran had a formally diagnosed PTSD but the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In January 2012, during VA clinical treatment, the Veteran reported improvements in his mood in spite of continued problems sleeping. He was oriented to place, person, and time. He made good eye contact. His mood was mildly dysphoric with a congruent range and full effect. He denied current or recent suicidal ideations or intent or plan. He stated that he had relationships with his wife, family, fellow church members, and community. The Veteran stated that he was about to be hired by the Tampa Fire Department. A private therapist prepared a psychiatric questionnaire in April 2012. The therapist diagnosed chronic PTSD. The Veteran had deficiencies in family relations, work or school, and mood. The therapist found that the Veteran's symptoms included difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked irritability or hostility, inability to establish and maintain effective relationships, sleep problems (difficulty falling and staying asleep), avoidance of reminders of in-service trauma, hypervigilance (carrying a firearm at all times), and heightened anxiety around crowds. The therapist also ranked the Veteran's limitations according to thirteen different psychological criteria. There was no evidence of limitation in five criteria: remembering locations and work-like procedures, sustaining an ordinary routine without supervision, maintaining socially appropriate behavior and standards of cleanliness, responding appropriately to changes at work, and awareness of normal hazards at work. The therapist found mild limitations in maintaining attention and concentration for extended periods; performing activities on schedule and maintaining regular attendance; completing a normal workweek without interruptions from symptoms; interacting appropriately with the public; traveling to unfamiliar places and using public transportation. Finally, the therapist found moderate limitations in working in coordination with others without being distracted; accepting instructions and criticism from supervisors; and getting along with co-workers and peers without exhibiting behavioral extremes. There were no marked limitations. In August 2016, the Veteran notified VA that he had been divorced since June 2016. The Veteran began to work as a firefighter sometime between January 2012 and November 2020. See C&P Exam, November 23, 2020. As noted above, disability ratings for PTSD are determined by using the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The August 2011 VA examiner listed symptoms including intrusive memories, sleep disturbances, irritability or outbursts of anger, hypervigilance, and an exaggerated startle response. However, the April 2012 therapist reported symptoms including anxiety, suspiciousness, and chronic sleep impairment which are consistent with a 30 percent rating, as well as difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked irritability or hostility, and an inability to establish and maintain effective relationships, all of which are consistent with a 70 percent rating. Considering social impairment, the Veteran was living with his wife from 2011 to June 2016 during this period, and there is evidence of domestic conflict including arguments and yelling and, most notably, the divorce in June 2016. The Veteran also reported relationships with one or more friends, church members and individuals in his community. In terms of occupational impairment, the Veteran had completed his training courses successfully by the summer of 2011 and was waiting for a hiring decision by the Tampa Fire Department. Notwithstanding the speculation in the April 2012 private report, there is no evidence of record that the Veteran's PTSD symptoms resulted in any actual occupational impairment. The Board notes that the August 2011 VA examiner stated that the Veteran's symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication, which would call for a noncompensable rating. The April 2012 therapist stated that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in family relations, work or school, and mood. As the evidence shows that the Veteran suffered from symptoms consistent with a 30 percent and 70 percent disability ratings with no evidence of actual occupational impairment, the Board finds that the frequency, severity, and duration of the Veteran's symptoms most nearly approximated the criteria for a 50 percent rating. The Veteran's symptoms did not more nearly approximate the criteria for a 70 percent rating. A 70 percent rating is to be assigned in cases of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Although the April 2012 private therapist opined that the Veteran's symptoms resulted in this level of impairment, the evidence does not indicate that the Veteran's symptoms made it difficult for him to find employment or caused disciplinary issues with his employment. The Veteran's marital problems were severe, but there is no evidence of social impairment outside the marriage (the Veteran had friends and acquaintances throughout this period). Although the Veteran reported getting into arguments with his wife, he did not indicate that he experienced any impaired impulse control or unprovoked irritability with periods of violence; therefore, these arguments appear to be more closely approximated by a difficulty in establishing and maintaining effective relationships, rather than impaired impulse control or an inability to establish and maintain effective relationships. The evidence indicates that the Veteran's hygiene and appearance and mood were all within normal limits. The evidence does not otherwise indicate that the frequency, duration, and severity of the Veteran's symptoms more nearly approximated deficiencies in judgment or thinking. Therefore, the Board finds that the frequency, severity, and duration of the Veteran's social and occupational impairment during this period are not consistent with a 70 percent rating. The Board has also considered whether additional staged ratings are appropriate in this case. However, the above evidence reflects that the Veteran's symptomatology has been stable throughout the appeal period and was consistent with no more than a 50 percent rating since service connection was granted, effective June 17, 2011. Therefore, a staged rating is not warranted in this case. In summary, the evidence is at least in equipoise that the Veteran's PTSD more nearly approximates the criteria for a 50 percent, but no higher, rating prior to November 19, 2020. From November 19, 2020 The Veteran was granted a disability rating of 50 percent for the period from November 19, 2020. The Veteran contends that his PTSD warrants a higher rating. The evidence for this period includes a November 2020 Disability Benefits Questionnaire for PTSD. The examiner diagnosed PTSD and no other mental disorders. The examiner stated that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported working as a firefighter and paramedic since his service. The Veteran had been in counseling at the Vet Center for ten years and was not prescribed any psychiatric medications. There was no legal or behavioral history or substance abuse history. The Veteran's symptoms included anxiety, suspiciousness, and an inability to establish and maintain effective relationships. The Veteran was well-groomed and cooperative. His mood was euthymic with normal affect and he was fully oriented, and he denied suicidality, homicidal tendencies, and psychosis. The Veteran stated that he has not reported many concerns about work and that there were no symptoms which would impede his occupational functioning. The examiner stated that "Veteran's PTSD is not severe enough to impede work in any meaningful way." Applying the rating criteria, the Veteran's symptoms do not more nearly approximate occupational and social impairment in most areas such as work, school, family relations, judgment, thinking, or mood, which would warrant an increased 70 percent rating. The Veteran has not exhibited 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 work-like setting) during this period. Although the November 2020 examiner reported that the Veteran had an inability to establish and maintain effective relationships, there is no evidence of resulting social impairment or occupational impairment in most areas. There is no evidence of occupational difficulties or legal problems the Veteran stated that he was working as a firefighter or paramedic at this time. As the Veteran's symptoms did not more nearly approximate social and occupational impairment in most areas, a 70 percent rating is not warranted. Similarly, the evidence is against assigning a 100 percent rating, which is warranted in cases of total occupational and social impairment. The Veteran has not exhibited symptoms such as gross impairments in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger to himself or others, or inability to perform activities of daily living. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran's impairment is limited to anxiety, suspiciousness, and an inability to establish and maintain effective relationships. The Veteran is employed and has friends and acquaintances; his symptoms do not result in total occupational and social impairment. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a rating in excess of 70 percent for PTSD is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of a TDIU rating is part and parcel of an increased rating claim when such claim is raised by the record. In this case, the issue of a TDIU has been raised by the record and is part and parcel of the claim for a higher rating for PTSD. See BVA Decision, March 14, 2018. Under the applicable criteria, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. §§ 3.340(a)(1), 4.15. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experiences, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). A total disability rating for compensation purposes 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). When the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a Veteran may be entitled to a TDIU on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). This appeal stems from the Veteran's claim for a higher initial rating for PTSD. The grant of service connection for PTSD was effective June 17, 2011. As such, the rating period for consideration is from June 17, 2011. From June 17, 2011, the Veteran has been service connected for PTSD, which, as a result of the decision above, is rated as 50 percent disabling throughout this appeal period. The Veteran has no other service-connected disabilities. Accordingly, the schedular percentage requirements for a TDIU have not been met at any period from June 17, 2011. The question then becomes whether there is evidence that the Veteran's PTSD causes the Veteran to be unable to obtain and maintain substantially gainful employment such that the matter should be referred for extraschedular consideration. 38 C.F.R. § 4.16(b). Turning to the evidence, in July 2011 Statement in Support of Claim, the Veteran said that he was waiting to hear from Tampa Fire Department as to whether they hired him. He anticipated difficulties sleeping in the fire station and working without carrying a firearm with him. A Disability Benefits Questionnaire prepared in August 2011 stated that the Veteran was "officially" unemployed at that time because he had just finished classes which were required for a paramedic to nursing program, and that he was waiting on a hiring decision from the Tampa Fire Department. In the Veteran's final VA treatment in January 2012, he said that he believed he was about to be hired by the Tampa Fire Department. A November 2020 Disability Benefits Questionnaire states that the Veteran has worked as a firefighter and paramedic post-service. As the available evidence indicates that the Veteran was employed full-time as a firefighter and/or paramedic from sometime in 2012 to November 2020, the evidence is against a finding that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation during that period. The evidence does not indicate that accommodations were made due to the Veteran's disability or that his employment was marginal, in a family business or sheltered workshop or other protected environment. Therefore, the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow all forms of substantially gainful employment consistent with his educational background and occupational experience from 2012 and entitlement to a TDIU for that period is denied. Concerning the period prior to 2012, and since November 2020, the evidence does not indicate that his service-connected PTSD prevented him from maintaining gainful employment at that time. The Veteran stated in his July 2011 Statement in Support of Claim that he was not working because he had recently completed his classes and was waiting for a hiring decision from the Tampa Fire Department; he told the August 2011 examiner and a January 2012 VA clinician the same thing. The August 2011 VA examiner stated that the Veteran's PTSD did not affect his ability to work, and that the Veteran had formally diagnosed PTSD but the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The April 2012 private opinion stated that the Veteran's PTSD resulted in several mild or moderate impairments in occupational functioning but does not indicate that these limitations made the Veteran unable to work during this period. Similarly, since November 2020, there is no indication in the record that the Veteran's service-connected PTSD made him unable to obtain and maintain substantially gainful employment. The Board does not doubt the impact that the Veteran's PTSD has on his daily life and employment; however, such impact has already been taken into consideration in the assignment of the percentage disability ratings. The evidence establishes that while the Veteran's service-connected disability may impact employment, he was not precluded from employment and, in fact, was gainfully employed during most of this period. Accordingly, there is the preponderance of the evidence is against finding that the Veteran's service-connected disability prevents him from obtaining and maintaining substantially gainful employment; thus referral for extraschedular consideration of the TDIU question is not warranted in this case. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.