Citation Nr: 21076590 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-28 568 DATE: December 27, 2021 ORDER Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) of 70 percent, but no higher, from July 18, 2012 to August 21, 2012 and from April 1, 2013 to January 26, 2020 is granted. Entitlement to an increased disability rating for PTSD in excess of 70 percent from January 27, 2020 to present is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the periods from April 1, 2013 to August 16, 2015 and from September 1, 2017 to September 5, 2019 is granted. Entitlement to a TDIU due to service-connected disability for the period from July 18, 2012 to August 21, 2012 is denied. FINDINGS OF FACT 1. From July 18, 2012 to August 21, 2012 and from April 1, 2013 to January 26, 2020, the severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From January 27, 2020, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 3. From April 1, 2013 to August 16, 2015 and from September 1, 2017 to September 5, 2019, the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. 4. From July 18, 2012 to August 21, 2012, the Veteran was not precluded from securing or following substantially gainful employment due to his service-connected disability. CONCLUSIONS OF LAW 1. From July 18, 2012 to August 21, 2012 and from April 1, 2013 to January 26, 2020, the criteria for a disability rating in excess of 70 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. From January 27, 2020, the criteria for a disability rating in excess of 70 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. 3. From April 1, 2013 to August 16, 2015 and from September 1, 2017 to September 5, 2019, the criteria for a finding of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(a), 4.18. 4. From July 18, 2012 to August 21, 2012, the criteria for a finding of TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(a), 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for PTSD The Veteran seeks an increased disability rating for PTSD in excess of 50 percent from July 18, 2012 to August 21, 2012 and from April 1, 2013 to January 26, 2020 and in excess of 70 percent from January 27, 2020 to present. As a preliminary matter, the Board notes that the rating for the period from August 22, 2012 to April 1, 2013 will not be addressed herein as the Veteran is already in receipt of a 100 percent disability rating for PTSD pursuant to 38 C.F.R. § 4.29. Legal Criteria The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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). 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. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when 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 cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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. Analysis Having reviewed the record, the Board finds that for the entire period on appeal, the Veteran's symptoms and level of impairment most closely approximated the symptoms and level of impairment associated with a 70 percent rating, but no higher. VA and private treatment records, the November 2012, February 2015 and September 2020 VA examinations, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating (suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, difficulty in adapting to stressful circumstances including work or a worklike setting, inability to establish and maintain effective relationships), symptoms associated with a 50 percent rating (flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships), and symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). He also had symptoms that are not listed with a specific rating, such as mood swings, hypervigilance, exaggerated startle response, and anger. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating. Indeed, the Veteran's most symptoms of suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, difficulty in adapting to stressful circumstances including work or a worklike setting, and inability to establish and maintain effective relationships are enumerated by the rating criteria for a 70 percent rating. Additionally, the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Veteran's unlisted symptoms of mood swings, hypervigilance, exaggerated startle response, and anger are similar to the symptoms of disturbances of motivation and mood, suspiciousness, and impaired impulse control, which are already contemplated by the assigned 70 percent rating. After resolving doubt in the Veteran's favor, the Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating, occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA and private treatment records and the November 2012, February 2015 and September 2020 VA examinations indicate that the Veteran was generally friendly, cooperative, well-groomed, appropriately dressed, speech was verbose and within normal limits, and oriented to time, person, place, and situation. However, during the February 2015 VA examination, it was noted that the Veteran thinks in all or none terms, has habitual thinking, does not challenge his beliefs, and operates on the world is not safe which feeds his anxiety and encourages his isolation. Additionally, during the September 2020 VA examination, it was noted that the Veteran's level of impairment more nearly approximated occupational and social impairment with reduced reliability and productivity. However, it was noted that the Veteran had difficulty answering questions that were abstract in nature due to his emotional focus on his PTSD. Finally, the Veteran's treating provider opined in a January 2020 correspondence that the Veteran has been underrated for years, and that his PTSD warranted occupational and social impairment with deficiencies in most areas such as work, school, family and marital relations, judgment, thinking, and mood. In light of the above, the Board will resolve doubt in the Veteran's favor and find that the level of impairment caused by symptoms more closely approximates the level associated with a 70 percent rating. The Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. As noted above, the Veteran's symptoms were either contemplated by or more consistent with a 70 percent rating. The evidence does not show any symptoms contemplated by a 100 percent rating. 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. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records. In August 2018, the Veteran reported occasional passive suicidal ideation without plan, but denied attempts or practicing behaviors. He reported that he did not want to give up and cited to his son and other family members as protective factors. Additionally, treating providers frequently found that the Veteran was not suicidal or at risk of self-harm or harm to others. Further, while the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability for a portion of the appeal period, he was not totally socially impaired. While the Veteran has reported perceived social avoidance and inability to establish and maintain effective relationships, treatment records contain reports that the Veteran often cited to his son and other family relationships as protective factors, reported good relationships with his son and cousins, and reported having many family and friend connections. In short, the weight of the evidence establishes that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 percent rating, but no higher, for the entire period on appeal. However, 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. TDIU Currently, the Veteran is in receipt of an award of TDIU effective from August 25, 2020. However, the Veteran has asserted that he is entitled to TDIU since July 18, 2012, the date of his claim for an increased rating for PTSD. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, the issue of entitlement to TDIU from the date of claim is properly before the Board because it is part and parcel of the claim for an increased rating for PTSD. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Court of Appeals for Veterans Claims held that the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16(b) has economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply means 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. Id. The noneconomic component is the claimant's ability to secure or follow substantially gainful occupation employment. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training. Id. Additionally, attention must be given whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Further, attention should be given whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. Preliminarily, the Board notes that the Veteran is in receipt of a 100 percent combined rating for several brief periods of time during the appeal period. The period from August 22, 2012 to March 31, 2013 will not be addressed as the Veteran is already in receipt of a 100 percent rating for PTSD. As there are no other service-connected disabilities during this period upon which TDIU could be awarded, then further analysis of this period is not warranted. The periods from August 17, 2015 to August 31, 2017 and from September 6, 2019 to September 30, 2020 will not be addressed as the Veteran is already in receipt of a 100 percent combined rating as well as special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) for these periods. Finally, the period from August 25, 2020 to present will not be addressed as the Veteran is already in receipt of a TDIU for that period. Accordingly, the periods for analysis are from July 18, 2012 to August 21, 2012; April 1, 2013 to August 16, 2015; and September 1, 2017 to September 5, 2019. a. Period from July 18, 2012 to August 21, 2012 The Board finds that the Veteran meets the schedular criteria for TDIU for the period from July 18, 2012 to August 21, 2012. Service connection is in effect for: PTSD at 70 percent. The Veteran's combined evaluation is 70 percent. As he has a single service-connected disability rated at 60 percent or more, the schedular criteria have been met. The Board's inquiry now turns to the economic and noneconomic components of TDIU. With respect to the economic component of TDIU, the Board finds that the Veteran was not engaged in substantially gainful employment during this period. He has consistently reported that his last full-time employment ended in 2010. See January 2013, February 2015, and April 2015 VA Form 21-8940. Accordingly, the economic component of TDIU is met. With respect to the noneconomic component of TDIU, the Board finds that the Veteran was able to secure and follow a substantially gainful occupation during the period from July 18, 2012 to August 21, 2012. In determining whether the Veteran has the ability to secure or follow substantially gainful employment, attention must be given to his education and work history and whether he has the physical and mental ability to perform the type of activities required by the occupation at issue. Here, the Veteran has a reported work history as a caretaker, mail carrier and food service employee. Additionally, he completed high school, 2 years of college, and 2 years of training in mechanical drafting. From July 18, 2012 to August 21, 2012, the Veteran's only service-connected disability was PTSD. The evidence reflects that his mental ability to perform occupational activities during this period was impaired due to PTSD. The November 2012 VA examination, which occurred close in time to this time period, revealed that the Veteran had anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. This indicates that his ability to get along with coworkers would be affected. The Board also acknowledges clinical psychologist J.H.'s January 2020 opinion that the Veteran's PTSD interfered with his ability to work, to include trouble adapting to work settings and getting along with others at work. However, the Board finds that Veteran's ability to secure or maintain substantially gainful employment is not substantially impaired during this period. His only service-connected disability, PTSD, would not affect his physical ability to complete tasks typically required of a caretaker, mail carrier, or food service employee. There are no limitations, due to service-connected PTSD, in his ability to lift, bend, sit, stand, walk, climb, grasp, type, reach, see, or hear. As his PTSD does not affect his physical ability to complete tasks required of a caretaker, mail carrier, or food service employee, the Board finds that the Veteran was not precluded from securing or maintaining substantially gainful employment during this period. Based on a review of the evidence, and taking into consideration the Veteran's level of education, work experience, and resulting impairment from service-connected disabilities, the Board finds the evidence weighs against a finding of entitlement to a TDIU. In short, the Veteran's service-connected PTSD may result in some occupational impairment with respect to mental ability, but the weight of the evidence does not demonstrate that PTSD alone is of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment, particularly as there is no impairment related to his physical ability. For these reasons, the Board finds that the criteria for a TDIU have not been met and the Veteran was able to secure and follow a substantially gainful occupation during the period from July 18, 2012 to August 21, 2012. The evidence is not in equipoise or near so and, as such, the benefit of the doubt rule is inapplicable in this case. The appeal for a TDIU for the period from July 18, 2012 to August 21, 2012 is denied. b. Period from April 1, 2013 to August 16, 2015 and from September 1, 2017 to September 5, 2019 The Board finds that the Veteran meets the schedular criteria for TDIU for the period from April 1, 2013 to August 16, 2015 and from September 1, 2017 to September 5, 2019. For the period from April 1, 2013 to August 16, 2015, the schedular criteria for a TDIU is met. Service connection is in effect for: PTSD at 70 percent disabling for the entire period; right shoulder degenerative arthritis with bicipital tendonitis and labral tear at 20 percent disabling from November 26, 2014; left shoulder degenerative arthritis with impingement syndrome and labral tear at 10 percent disabling from November 26, 2014 to April 29, 2015 and at 20 percent disabling from April 30, 2015 to August 17, 2015; lumbar spine degenerative disc disease (DDD) at 10 percent disabling from October 8, 2014 to April 29, 2015 and at 20 percent disabling from April 30, 2015; C3-C4 and C5-C6 anterior cervical discectomy fusion at 20 percent disabling from November 26, 2014; tinnitus at 10 percent disabling from June 5, 2014; left hand osteoarthritis index finger as noncompensable from October 8, 2014; and scar of the right hand as noncompensable from October 8, 2014. The Veteran's combined ratings are 70 percent from April 1, 2013 to October 7, 2014; 80 percent from October 8, 2014 to November 25, 2014; and 90 percent from November 26, 2014 to August 16, 2015. Accordingly, the Board finds that the schedular criteria for TDIU is met for the entire period from April 1, 2013 to August 16, 2015 because he has a single service-connected disability rated at 60 percent or more and/or more than one service-connected disability resulting in a combined rating of at least 70 percent with at least one disability rated at 40 percent or more. Additionally, for the period from September 1, 2017 to September 5, 2019, the schedular criteria for TDIU is met. Service connection is in effect for: PTSD at 70 percent disabling for the entire period; right shoulder arthroplasty at 30 percent disabling; left shoulder arthroplasty at 20 percent disabling; lumbar spine DDD at 20 percent disabling; C3-C4 and C5-C6 anterior cervical discectomy fusion at 20 percent disabling; tinnitus at 10 percent disabling; left hand osteoarthritis index finger as noncompensable; and scar of the right hand as noncompensable. His combined rating for this period is 90 percent. The Board finds that the schedular criteria for PTSD is met for the entire period from September 1, 2017 to September 5, 2019 because he has a single service-connected disability rated at 60 percent or more and/or more than one service-connected disability resulting in a combined rating of at least 70 percent with at least one disability rated at 40 percent or more. As the schedular criteria for a TDIU are met, the Board's inquiry now turns to the economic and noneconomic components of TDIU. With respect to the economic component of TDIU, the Board finds that the Veteran was not engaged in substantially gainful employment during this period. He has consistently reported that his last full-time employment ended in 2010. See January 2013, February 2015, and April 2015 VA Form 21-8940. Accordingly, the economic component of TDIU is met. With respect to the noneconomic component of TDIU, the Board finds that the Veteran was not able to secure and follow a substantially gainful occupation during the periods from April 1, 2013 to August 16, 2015 and from September 1, 2017 to September 5, 2019. Accordingly, a TDIU is warranted for this period. The Board has considered the Veteran's employment history and education. The Veteran has a reported work history as a caretaker, mail carrier and food service employee. Additionally, he completed high school, 2 years of college, and 2 years of training in mechanical drafting. The Board finds the Veteran's mental ability to perform occupational activities during this period was impaired due to PTSD. VA treatment records, VA examinations, and clinical psychologist J.H.'s January 2020 opinion indicate that the Veteran's PTSD resulted in difficulty adapting to stressful circumstances and work settings, difficulty in establishing and maintaining effective work and social relationships, and disturbances of motivation and mood. The Board finds the Veteran's physical ability to perform occupational tasks is impaired by service-connected C3-C4 and C5-C6 anterior cervical discectomy fusion, right and left shoulder arthroplasty, lumbar spine DDD, and left hand and index finger osteoarthritis. VA treatment records and VA examinations indicate that these disabilities would: result in difficulty working with things overhead and above shoulder level, limit peripheral vision, slow his ability to complete tasks due to back pain, result in difficulty with prolonged sitting, result in decreased ability to carry items, and result in decreased grip strength. As the Veteran's cervical spine, bilateral shoulder, lumbar spine, and left-hand disabilities affect both exertional and nonexertional physical abilities, including his ability to lift, bend, sit, grasp, reach, and see, the Board finds that the Veteran's physical ability is significantly impaired. Based on the above, and taking into consideration the Veteran's level of education, work experience, and resulting impairment from service-connected disabilities, the Board finds that the evidence supports a finding of entitlement to a TDIU for the periods from April 1, 2013 to August 16, 2015 and from September 1, 2017 to September 5, 2019. Jobs such as caretaker, mail carrier and food service employee require both mental and physical ability. Here, the collective evidence indicates that both areas of mental and physical ability are impaired. For these reasons, the Board finds that the criteria for a TDIU have been met and the Veteran was not able to secure and follow a substantially gainful occupation during the period from April 1, 2013 to August 16, 2015 and from September 1, 2017 to September 5, 2019. The claim is granted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.