Citation Nr: 21076358 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-22 263 DATE: December 23, 2021 ORDER An initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD), for the purposes of substitution, is denied. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU), for the purposes of substitution, is denied. FINDINGS OF FACT 1. The Veteran's PTSD was not productive of occupational and social impairment with reduced reliability and productivity; of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or of total occupational and social impairment. 2. The Veteran's PTSD did not render him unemployable or unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for PTSD, for the purposes of substitution, are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 2. The criteria for a TDIU, for the purposes of substitution, are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1969. He died in July 2018. The appellant, his surviving spouse, was determined to be an eligible substitute claimant in May 2019. This appeal is before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In his April 2017 substantive appeal, the Veteran requested a hearing before the Board via live videoconference. After his death, a hearing was scheduled for the appellant in October 2021. She declined to appear. The Board notes that in a September 2021 statement, the appellant expressed her desire to withdraw her appeal on the claim of service connection for the cause of the Veteran's death, explaining that this claim had already been granted. As the appellant misunderstands the issues on appeal, the Board does not consider this to be a valid withdrawal and will adjudicate the appeal on the merits. 1. Entitlement to an initial evaluation in excess of 30 percent for PTSD, for the purposes of substitution Prior to his death, the Veteran sought a higher rating for his PTSD. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Diagnostic Code 9411 of 38 C.F.R. § 4.130 specifically addresses PTSD; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, the Veteran's 30 percent rating was warranted for 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, and 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 difficulty in establishing 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, 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 an 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 inability to establish and maintain effective relationships. A total schedular rating of 100 percent 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; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and 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). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran underwent a VA examination in September 2013. He reported anxiety in crowded situations once or twice per month and occasional mild irritability. He stated that he preferred to keep to himself. He reported that he worked full time, performed his duties, got along with coworkers, and had not missed work due to mental health issues. He got along reasonably well with his wife and had never had any mental health treatment. The examiner noted anxiety, chronic sleep impairment, mild memory loss, and difficulty establishing and maintaining relationships. The examiner found mild psychosocial maladjustment secondary to his intermittent social anxiety. He was diagnosed with a mild anxiety disorder productive of symptoms not severe enough either to interfere with occupational and social functioning or to require continuous medication. VA treatment records reflect that in July 2014 the Veteran's wife reported that he had been having flashbacks and nightmares all his life. When asked about this by his physician, he became very quiet with teary eyes. He denied suicidal ideation or depression. He was referred to mental health for a PTSD evaluation, but such a consultation never occurred. Private treatment records reflect that in July 2014 the Veteran reported that he stopped working as a truck driver in December 2013 due to his medical problems and was currently unemployed. He reported that he had been married since 1975. He reported difficulty focusing and concentrating. He described irritability and stated that he could not relax. Movies that reminded him of service worsened his symptoms. He described disturbing memories and dreams. He had insomnia nad irritability with angry outbursts. He described feelings of worthlessness, lack of pleasure, pessimism, guilt, inability to cry, fatigue, indecisiveness, and decreased libido. He reported panic attacks several times per month. He stated that he has thoughts of suicide when alone but fears becoming incapacitated. His wife described him as someone who does not like social gatherings or public places. She stated the was distant from people, which affected his relationships and friendships. She said that when he was not driving his truck, he did not want to leave his home. He was diagnosed with PTSD, moderate to severe major depressive disorder without psychotic features, and panic disorder with agoraphobia. He was prescribed medication, and in September 2014 he reported that his sleep had some improvement. He continued to report anxiety, moodiness, social withdrawal, and irritability. He stayed home and did not interact much with friends. He denied any suicidal or homicidal ideation. In December 2014 he and his wife reported that his depression had improved, his sleep had improved, and his panic attacks had decreased. He stated that he still had flashbacks and nightmares. The Veteran underwent another VA examination in February 2015. He and his wife reported recent exacerbation of his PTSD symptoms since being diagnosed with chronic obstructive pulmonary disease (COPD), retirement, and the deaths of his parents. They described a fine relationship with their adult daughters. He did not keep up with friends beyond some phone contact with some. He stated that he left his truck driving job in December 2013 because of his difficulty breathing. He described broken and inconsistent sleep with nightmares and flashbacks. He reported periods of depression with sadness, feelings of worthlessness, anhedonia, a negative outlook, and sometimes irritability. He denied any significant suicidality. He described episodes of sudden anxiety. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and flattened affect. He was diagnosed with PTSD productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. Private treatment records reflect that in March 2015 the Veteran reported continued anxiety, hypervigilance, flashbacks, and nightmares. He reported improvement in his sleep. He was next seen in January 2016, when his psychiatrist noted major impairment in several areas in functioning, including work and housework, relationships with friends, constant fighting with his spouse, indecisiveness, confusion, and inability to trust. He stated that it was only fear of God that kept him from killing himself. In his February 2016 notice of disagreement, the Veteran highlighted that in July 2014 his private psychiatrist assigned a Global Assessment Functioning (GAF) score of 39, indicative of major impairment. During the pendency of this claim, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. In pertinent part, the DSM-5 eliminated the GAF scores used in the DSM-IV, in part due to their "conceptual lack of clarity." See DSM-5 at 16. As such, in cases such as here where the DSM-5 applies, GAF scores cannot be used when assigning a psychiatric rating. See Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). In his February 2016 application for a TDIU, the Veteran reported that his PTSD had rendered him unemployable since December 2013, at which time he left his job as a truck driver after 22 years. He reported that he had a high school education. In a March 2017 submission, the Veteran's employer since 1991 reported that he continued to work part-time 20 hours per week as a shop supervisor. In his April 2017 substantive appeal, the Veteran stated that his PTSD should have been rated higher from the start, that it played a big part in his inability to work, and that he has panic attacks. The Board finds that an evaluation in excess of 30 percent was not warranted for the Veteran's PTSD. Higher ratings were available for occupational and social impairment with reduced reliability and productivity; for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or for total occupational and social impairment. The evidence weighs against symptoms of such severity. The VA examiners both found severity at less than that which warrants his 30 percent rating. Moreover, his 30 percent rating was consistent with his reported symptoms of depression, anxiety, sleep impairment, mild memory loss, and panic attacks. Panic attacks were reported multiple times per month, consistent with the weekly or less often panic attacks contemplated by the 30 percent rating criteria. He had exhibited flattened affect and difficulty in establishing and maintaining relationships, but these symptoms do not appear to have resulted in impairment warranting a higher rating. Indeed, there is some inconsistency in his reports of impairment, as he regularly stated that his PTSD rendered him unable to work since December 2013, but his employer stated that he was working part time as a shop supervisor as late as March 2017. He maintained relationships with his family, and there is no indication that he had any significant difficulty with his coworkers. While he reported a history of suicidal ideation in July 2014 and in January 2016, there is nothing in his treatment records to indicate any plan or intent. For these reasons, the Board finds that an evaluation in excess of 30 percent was not warranted for the Veteran's PTSD. 2. Entitlement to a TDIU, for the purposes of substitution Prior to his death, the Veteran sought a TDIU. He contended that his service-connected disabilities rendered him unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (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 (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service ("Director") for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The fact that a veteran is in receipt of a combined schedular rating of 100 percent does not preclude the availability of a TDIU. Although no additional disability compensation may be paid when a total schedular rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC, and thus must be considered by the Board. Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. During the entirety of the appeal period prior to his death, the Veteran was in receipt of a 30 percent rating for PTSD. After his death, he was awarded a 100 percent rating for COPD, effective March 31, 2017. He was not service connected for any other disabilities. Prior to March 2017, he was therefore ineligible for a schedular TDIU under 38 C.F.R. § 4.16(a), and the Board may only consider whether remand is warranted for referral for an extraschedular TDIU under 38 C.F.R. § 4.16(b). For the period from March 2017, his combined schedular rating was 100 percent, and he was therefore only eligible for a Bradley TDIU based solely on his PTSD. For both periods, the question before the Board is whether the Veteran's PTSD rendered him unemployable. (Continued on the next page) The Board finds that the evidence does not indicate that the Veteran's PTSD rendered him unemployable or unable to secure and follow a substantially gainful occupation. As discussed above, the Veteran's PTSD was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Such impairment is not consistent with a finding of unemployability. Moreover, the evidence indicates that despite his reports that his PTSD rendered him unable to work since December 2013, in March 2017 his employer indicated that he was still working as a shop supervisor for 20 hours per week. There is no indication in the record that he left that job before his death. For these reasons, the Board finds that the evidence does not indicate that the Veteran's PTSD rendered him unemployable or unable to secure and follow a substantially gainful occupation. A schedular TDIU from March 2017 is denied, and remand for referral to the Director for extraschedular consideration prior to that date is not warranted. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.