Citation Nr: A21020189 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200517-84285 DATE: December 17, 2021 ORDER For the period since December 20, 2018, an increased initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability (TDIU) is granted. VETERAN'S CONTENTIONS The Veteran contends that the rating currently assigned for his PTSD does not compensate him for his low motivation to do activities he once enjoyed and his lack of participation in group activities. The Veteran contends that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment, entitling him to a TDIU. FINDINGS OF FACT 1. After December 20, 2018, the Veteran's PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. His PTSD was not productive of total social or occupational impairment. 2. The Veteran's service-connected disabilities precluded him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased 70 percent disability rating for PTSD are met, effective December 20, 2018. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.19, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1966 to December 1967. He filed the claim currently on appeal in November 2015. The Agency of Original Jurisdiction (AOJ) denied the claim in a February 2020 rating decision. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA)'s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran selected Direct Review by a Veterans Law Judge on his May 17, 2020 Notice of Disagreement. In adjudicating the claims, the Board may consider evidence associated with the record at the time of the February 2020 rating decision. On the Notice of Disagreement submitted on May 17, 2020, the Veteran indicated that the appeal regarding the disability rating for PTSD was from the August 2019 rating decision. However, after receiving the August 2019 rating decision the Veteran filed a supplemental claim in January 2020 seeking a higher rating for PTSD, which was addressed in a February 2020 rating decision. In its August 2020 decision, the Board read the NOD liberally and found that it could be applied to the February 2020 rating decision that continued the denial of an increased disability rating for PTSD. 38 C.F.R. § 20.202(a). The August 2020 Board decision determined that for the period prior to December 20, 2018, the criteria for an increased 70 percent rating for PTSD were met, but the Board denied the Veteran's claim for an initial disability rating in excess of 30 percent for PTSD as of December 20, 2018. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and the parties filed a Joint Motion for Partial Remand (JMPR) in May 2021. The JMPR reflects that the parties did not seek to disturb the Board's decision granting an increased 70 percent rating for the period prior to December 20, 2018. Rather, the parties moved for vacatur of that portion of the Board's decision denying a rating higher than 30 percent for PTSD as of December 20, 2018. In June 2021, the Court issued an Order granting the JMPR and remanded the matter for action consistent with the terms of the JMPR. Following the return of the case to the Board, additional evidence, including an October 2021 private medical opinion and buddy statements, was associated with the claims file. Because this was added to the file after the record was closed, the Board may not consider this evidence. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.300). See also Andrews v. McDonough, 34 Vet. App. 151 (2021) (holding that that unlike in the legacy system, there is no additional period during which the evidentiary record remains open for cases in which the AMA direct review docket was selected). To the extent that this evidence relates to any issue denied in this decision, the Veteran may file a Supplemental Claim and submit or identify this evidence. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.2501). If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from December 20, 2018 onward. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. The General Rating Formula for Mental Disorders, which is set forth in 38 C.F.R. § 4.130, provides in pertinent part: A 30 percent rating is warranted where there is 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 evaluation is warranted where there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is 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); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is 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; memory loss for names of close relatives, own occupation, or own name. Here, the Veteran is rated 30 percent for PTSD from December 20, 2018 onward. After a review of the evidence, the Board finds that the Veteran's PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, entitling him to a disability rating of 70 percent effective December 20, 2018. 38 C.F.R. § 4.130, Diagnostic Code 9411. In this regard, with respect to work, in a December 2018 VA PTSD Disability Benefits Questionnaire, a clinician documented that the Veteran reported avoiding customers in the workshop; if the workshop was full of people, the Veteran would leave. The clinician further documented that the Veteran reported problems with anxiety and irritability at work. In a February 2020 VA PTSD Disability Benefits Questionnaire, a clinician documented that the Veteran reported rarely interacting with customers and becoming irritable with the employees. With respect to family, the December 2018 clinician documented that the Veteran reported living with his wife of 52 years and that they got along well. However, the clinician also documented that the Veteran and his wife were only together on the weekends. The Veteran and his wife also spent their weekends with his grandchildren, but the Veteran reported that he was often irritated by his grandchildren. The Veteran reported that he spent more time alone. The clinician further documented that the Veteran reported enjoying lake activities and remote-control airplanes, but that he currently had low motivation to make efforts to do those things and did not participate in group-related activities. The February 2020 clinician confirmed that the Veteran's wife stayed with their son and that the Veteran and his wife spent time together on weekends, but that they did not do many activities together. The clinician documented that the Veteran worked with his younger son and usually got along with his grandchildren but that he did not keep in touch with any other family members or friends. Given the evidence that the Veteran spends most of his time alone and is often irritated when he is around people, including family, the Board concludes that the Veteran's PTSD is productive of deficiencies in the area of family and other social relationships. In the area of thinking, the December 2018 clinician documented recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); and avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event. The February 2020 clinician also documented recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); and avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with traumatic event(s). The clinician further documented avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with traumatic event(s); and that the Veteran reported occasional problems with concentration and memory (remembering names was particularly difficult and he often forgot details that he used to be able to recall easily). The February 2020 clinician indicated that the Veteran had problems with concentration and mild memory loss, such as forgetting names, directions, or recent events. Based on the evidence, the Veteran had difficulty with his thought processes and his PTSD is thus productive of deficiencies in the area of thinking. In the area of mood, the December 2018 clinician documented that the Veteran reported feeling irritated frequently. The clinician also indicated that the Veteran had a persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame) and that the symptoms attributable to PTSD included depressed mood. The February 2020 clinician documented that the Veteran reported feeling irritated when he was around people, even in routine social situations. The clinician also indicated that the Veteran had a persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); feelings of detachment or estrangement from others; persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings); depressed mood; and disturbances of motivation and mood. Based on the evidence, the Board concludes that the Veteran has difficulty with his mood and his PTSD is thus productive of deficiencies in the area of mood. After careful review of the evidence, the Board finds that the Veteran's PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas, effective December 20, 2018. As described above, effective December 20, 2018, the Veteran has experienced deficiencies in the areas of work, family, thinking, and mood. Accordingly, the Board finds that the preponderance of evidence demonstrates that the disability due to the Veteran's PTSD has approximated the schedular criteria for a disability rating of 70 percent, effective December 20, 2018. In so finding, the Board looked to the frequency, severity, and duration of the Veteran's impairment, and not transient symptoms, to assess his disability picture. See Vazquez-Claudio, 713 F.3d at 117 (Fed. Cir. 2013). Although the evidence does not show symptomatology such as illogical speech, spatial disorientation or periods of violence, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The evidence of record does not, however, support a rating of 100 percent (the only higher disability evaluation available). VA and private clinicians have not noted, and the Veteran has not reported gross impairment in thought processes or communication, persistent hallucinations and delusions, grossly inappropriate behavior, intermittent inability to perform the activities of daily living, or any of the other markers of total occupational and social impairment due to PTSD. As discussed above, the Veteran reported getting along with his grandchildren most of the time, working with his son, and living with his wife on the weekends, demonstrating that although he experiences impairment in the area of relationships, he is not totally socially impaired. As a finding of both total social and occupational impairment is required for the award of a 100 percent rating, the Board finds that a rating in excess of 70 percent is not warranted. The Board acknowledges that the Veteran's attorney has raised challenges to the December 2018/February 2020 clinician's competency and requested that VA provide his credentials and training information. See Francaway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). However, the Board notes that the attorney has not identified any pre-decisional duty to assist error, any due process error, or made any specific argument explaining why the clinician's credentials/training render him unqualified to assess the severity of the Veteran's PTSD. Further, the clinician is a licensed psychologist, as reflected in the report of examination. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that mental health professionals making diagnoses 'are presumed to know the DSM requirements applicable to their practice and to have taken them into account.'). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) A TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment defined as when a veteran's earned annual income does not exceed the poverty threshold for one person, or on a fact found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop) shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that service connection has been established for PTSD (rated as 70 percent disabling); tinnitus (rated as 10 percent disabling); tuberculosis, pulmonary, minimal, inactive (rated as noncompensable), and bilateral hearing loss (rated as noncompensable). The Veteran had one disability rated at least 60 percent disabling or two or more disabilities, with 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). Thus, the Veteran met the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). After reviewing the evidence of record, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. In this regard, the evidence of record reflects that the Veteran completed four years of high school education and some college coursework. Since service, the Veteran reported primary employment working in construction. Regarding his current ability to obtain and maintain substantially gainful employment, the evidence of record includes a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in which the Veteran indicated that he last worked full-time on August 1, 2005 and became too disabled to work on August 1, 2005. Turning to the medical evidence of record, as indicated above, a December 2018 clinician documented that the Veteran reported avoiding customers in the workshop and problems with anxiety and irritability at work. The clinician further documented that the Veteran had recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event; persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); and depressed mood. A February 2020 clinician documented that the Veteran reported feeling irritated when he is around people, rarely interacting with customers, and becoming irritable with the employees. The clinician also documented that the Veteran had recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with traumatic event(s); avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with traumatic event(s); problems with concentration; and mild memory loss, such as forgetting names, directions or recent events. The clinician further indicated that the Veteran had persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); feelings of detachment or estrangement from others; depressed mood; and disturbances of motivation and mood. In a June 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire a clinician opined that the Veteran's hearing loss impacted ordinary conditions of daily life including ability to work. The clinician reasoned that the Veteran reported difficulty keeping up with conversation and difficulty hearing conversation when he cannot see the speaker's face. In a February 2020 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire a clinician opined that the Veteran's hearing loss and tinnitus impacted ordinary conditions of daily life, including ability to work. The clinician reasoned that the Veteran reported requiring repetition and that his hearing loss caused him to withdraw from daily conversations for fear of not hearing things correctly. The clinician further reasoned that the Veteran also withdrew from conversations because his tinnitus was distracting. After reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working in construction, a job which requires memory, concentration, and interacting with others. The Board acknowledges that the evidence of record indicates that the Veteran currently works for his son's business. However, it is apparent that the Veteran works for his son because he was unable to maintain his own business, even with help from his wife, and is unable to communicate with anyone or be around people. See March 2016 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Therefore, affording the benefit of the doubt to the Veteran, the Board finds that this employment constitutes marginal employment (the equivalent of employment in a protected environment), and, thus, not gainful employment. See 38 C.F.R. § 4.16(a). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.