Citation Nr: A21020422 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 201229-127394 DATE: December 22, 2021 ORDER A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. 2. The Veteran's service-connected disabilities have been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code (DC) 9411. 2. The criteria for assignment of TDIU are met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1976 to May 1978 A rating decision was issued under the former "legacy" system in April 2015 (which denied a TDIU) and in April 2016 (which granted service connection for PTSD effective from September 12, 2011 and assigned "staged" ratings, i.e., an initial 100 percent rating and then a 50 percent rating). In response to those decisions, the Veteran submitted timely Notices of Disagreement (NODs). In November 2019, the local Regional Office (RO), i.e., agency of original jurisdiction (AOJ) issued two Statements of the Case (SOCs), one for each issue. In December 2019, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a VA Form 10182 (Decision Review Request: Board Appeal NOD), identifying the November 2019 SOCs and the decisions he was appealing. In appealing to the Board, the Veteran elected the "Direct Review" option, ordinarily meaning the Board's review of his AMA appeal would be limited to the evidence of record at the time of the AMA decisions he has appealed so as of the time of issuance of those SOCs. The Board remanded the claim in September 2020. In December 2020, the Veteran again filed a VA Form 10182 to a September 2020 rating decision, electing the Direct Review option. 1. A rating in excess of 50 percent for PTSD is denied. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A 30 percent rating is assigned when there is 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 assigned when 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 rating is assigned when the psychiatric condition produces 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 maximum 100 percent rating is assigned when there is total occupational or 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. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board has considered the totality of the evidence in this instance, but finds that a rating higher than 50 percent for the Veteran's PTSD has not been demonstrated. Significantly, on January 2016 VA examination, following mental status examination, the VA examiner concluded that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, so in line with the 30 percent rating. The Board notes that on this examination, the Veteran reported suicidal thoughts "every now and then." The Board notes that this symptom is included in the 70 percent rating. However, the remaining symptoms listed in the 70 percent rating were not shown on this examination by any means. The Veteran did not display any symptoms of 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, spatial disorientation, or neglect of personal appearance and hygiene. Rather, he was found to have normal speech without evidence of hallucinations or delusions, with normal cognitive function and ability to relate in a cooperative and friendly manner. He reported attending group therapy at the VA almost daily and denied feeling depressed. He reported trouble with sleep. The VA treatment records also show moderate PTSD symptoms, to include in August 2014, at which time he denied suicidal thoughts. He reported that his sleep was pretty good and that his energy up. Mental status examination showed good insight, fair judgment, and normal psychomotor activity. On November 2019 VA examination, the Veteran's occupational and social impairment was assessed to be in the 50 percent range, i.e. occupational and social impairment with reduced reliability and productivity. He reported a sleep impairment and that he was irritable. He displayed depressed mood, suspiciousness, flattened affect, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, all of which are accounted for by the currently assigned 50 percent rating. Mental status examination was mostly within normal limits in that the Veteran was appropriately dressed and conversed appropriately. There were no obsessions or phobias detected and he denied suicidal thoughts. His thought content was coherent and logical. The same was true when seeking ongoing psychiatric care that the VA in January 2020. At that time, the Veteran was noted to be oriented in all spheres, with normal speech, mood, insight, and judgment. There was no indication of suicidal thoughts. The Board has considered the evidence but determines that a rating higher than 50 percent is not warranted. While the Veteran has shown to struggle with his PTSD and such includes feelings of depression, a significant sleep impairment, and other symptoms such as avoidance and flashbacks of the traumatic event, the Board finds that these symptoms are accounted for by the currently assigned 50 percent rating. Significantly, both VA examiners found no more than a moderate impairment to the Veteran's social and occupation functioning. The Board places great probative weight on these conclusions, as the examiners as specialists in the field of mental health and these findings were based upon interview and examination of the Veteran. These VA examinations comport with the VA treatment records dated throughout the appeal period. Accordingly, based upon the above, the Board finds that a rating higher than 50 percent for the Veteran's PTSD is not warranted. 2. A total disability rating based upon individual unemployability (TDIU) is granted. The first thing worth pointing out in adjudicating this derivative TDIU claim is that "total" unemployability is not required for this benefit. In other words, a Veteran need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Total disability will be considered to exist 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. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In a rather recent precedent case, the Veterans Court (CAVC) defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. In this case, the Board finds that the criteria for a TDIU are met. The evidence reflects that the Veteran displays significant impairment in both physical and mental ability-factors. Certainly from a physical perspective, the evidence reflects that he is impaired in his ability to lift, sit, stand, or walk for any prolonged period of time due to his service-connected low back and left hip disabilities. On each VA examination, the Veteran's low back and left hip disabilities have been assessed to cause functional impact due to decreased mobility and pain. The Veteran's employment history, as well as his educational background, demonstrate that his training is in positions that require physical rigor. Thus, his service-connected lumbar spine disability and left hip disability cause significant impairment in this regard. The Veteran has also demonstrated mental impairment to include ability adapt to a work environment, to get along with others, and to handle work-place stress. He has been shown to suffer from significant avoidance of many stimuli that evoke his symptoms of PTSD, and has shown trouble with adapting to work-like settings, as demonstrated on VA examination. (CONTINUED ON NEXT PAGE) When considering the above, the Board finds that the criteria for a TDIU are met. The Veteran has met the schedular criteria for a TDIU throughout the appeal period, and, as his service-connected disabilities have been shown to prevent employment throughout this period of time, a TDIU is granted. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.