Citation Nr: A21020573 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 210914-184581 DATE: December 28, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder, recurrent, severe without psychosis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Posttraumatic stress disorder (PTSD) with major depressive disorder, recurrent, severe without psychosis is manifested by irritability, panic attacks, near-constant depression, and suicidal ideation, all resulting in occupational and social impairment with deficiencies in most areas. 2. The Veteran is unable to secure and follow a substantially gainful occupation due solely to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder, recurrent, severe without psychosis 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. 2. The criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to May 1970. The rating decision on appeal was issued in November 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In September 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim. In October 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal. 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder, recurrent, severe without psychosis 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 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. VA treatment records show that the Veteran reported irritability (including road rage), panic attacks, and nightmares. He stated that he did not leave the house often. Multiple treatment notes indicate that the Veteran reported avoiding the garage because of suicidal thoughts that occurred when he would walk through. The notes also indicated that the Veteran was not an acute suicide threat. The Veteran received a VA examination in October 2019. He reported that he stays home unless forced to go out and does not engage with anyone outside of his family and the VA. He stated that his mood was "blah" and that he had low motivation and difficulty concentrating. His wife reported that his irritability had increased and that his road rage was bad enough that she often felt anxious riding with him. The examiner stated that the Veteran did not appear to pose a threat to himself or others. The examiner observed that the Veteran was visibly upset and anxious and did not make eye contact during the interview. His insight and judgment were poor to fair. He denied any psychoses or homicidal ideation. The Veteran endorsed pervasive suicidal ideation but denied any intent or plan. The Veteran received another VA examination for his PTSD in October 2020. He reported that he was married to his wife of 56 years and had five adult children, with whom relationships were strained due to his symptoms. He stated he had no friendships and spent most of his time alone in his basement. The Veteran also reported symptoms of nightmares, flashbacks, exaggerated startle response, intrusive thoughts, concentration issues, panic attacks, depressed mood, low motivation, isolation/withdrawal, and forgetfulness. The examiner observed that the Veteran was cooperative during the examination but did not make eye contact and appeared depressed and anxious. The examiner noted the Veteran's reports of suicidal thoughts but noted there was no acute indication of suicidal or homicidal intent. Overall, the examiner indicated that the Veteran exhibited occupational and social impairment with deficiencies in most areas. 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, and during the October 2020 VA examination. The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. To warrant a 100 percent rating, the Veteran would need to exhibited total occupational and social impairment. However, the Veteran's symptoms most closely approximate 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 October 2020 VA examination indicate that the Veteran had strained familial relationships and no friendships. He was visibly depressed and anxious and reported a wide range of symptoms including difficulty sleeping, panic attacks, irritability, and suicidal thoughts. However, he was cooperative during the interview, exhibited adequate hygiene, and did not present with any acute indication of suicidal or homicidal threat. Although he and his wife both reported road rage, there is no indication that he has hurt or attempted to hurt anyone. He does not have any symptoms indicating that he is a persistent danger to himself or others. Therefore, the Board finds that total occupational and social impairment has not been shown. In short, the preponderance of 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. The evidence is not in approximate balance. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, 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. 38 C.F.R. § 4.16 (a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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 requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran meets the schedular requirements for TDIU, as he is service-connected for PTSD rated at 70 percent and tinnitus rated at 10 percent. On his application for TDIU, the Veteran indicated that he last worked in 2012 as a locomotion engineer. He has no education past high school and no additional training. His employer stated that the Veteran stopped working in 2012 due to his retirement. The October 2020 VA examiner stated that the Veteran is unable to tolerate stress or form relationships due to symptoms and isolates most of the day, does not make eye contact and appears distressed by interaction, experiences regular panic attacks and flashbacks. The examiner also stated that the Veteran would struggle to function interpersonally in any occupational environment, with memory and concentration issues which would also impact functioning. The Board finds that a TDIU is warranted. Regardless of the Veteran's original reasons for leaving work, he is currently incapable of interacting with others in a productive way. This, combined with his frequent panic attacks and memory and concentration deficiencies, makes any type of substantially gainful occupation impossible. TDIU is granted effective September 6, 2019, the date of receipt of the claim for TDIU. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.