Citation Nr: 21006435 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-12 967 DATE: February 4, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with addictive gambling disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from December 14, 2010, is granted. FINDINGS OF FACT 1. The Veteran’s PTSD symptoms have been most clinically characteristic of those contemplated by the criteria for a 70 percent evaluation, but no more. 2. The Veteran’s service-connected disabilities have been shown to be of such severity as to preclude him from securing and following substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating for PTSD in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 2. The criteria for the award of TDIU from December 14, 2010, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1969, to include service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran testified at a September 2018 Board hearing before the undersigned Veterans Law Judge (VLJ). The case was most recently remanded in June 2020, and there was substantial compliance with the remand directives See Stegall v. West, 11 Vet. App. 268 (1998). During this appeal, a February 2015 rating decision granted a temporary total disability rating pursuant to 38 C.F.R. § 4.29 for the period from April 29, 2013 until July 1, 2013. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 1. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with addictive gambling disorder Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Any doubt regarding the extent of the disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. Peyton v. Derwinski, 1 Vet. App. 282 (1991). Evaluations under 38 C.F.R. § 4.130 are “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas”-i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. When evaluating the level of disability arising from a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. See 38 C.F.R. § 4.126(a). However, the rating agency shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under this section, a 70 percent rating contemplates 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); and an inability to establish and maintain effective relationships. A maximum 100 percent evaluation is warranted for a total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communications; 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 or close relatives, own occupation, or own name. The Veteran contends that his service-connected PTSD is worse than contemplated by the initially assigned 70 percent disability rating. See September 2018 Board hearing transcript. As noted above, a February 2015 rating decision assigned a temporary 100 percent disability rating for the Veteran’s PTSD pursuant to 38 C.F.R. § 4.29. While the evidence of record demonstrates that the Veteran’s PTSD has resulted in a very substantial degree of occupational and social impairment, the Board does not find that the Veteran’s symptoms are generally of similar severity, frequency, and duration as those described in the rating criteria for a 100 percent disability rating. The Board notes that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to 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 (2002). When the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). The claims file includes a January 2011 VA initial PTSD examination report, wherein the examiner confirmed a diagnosis of chronic PTSD with addictive gambling. The Veteran’s symptoms included recurrent and intrusive distressing recollections, avoidance, sleep difficulty, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, depressed and anxious mood. The examiner noted the Veteran reported suicidal ideation. The Veteran also reported intrusive symptoms (recurrent memories, dreams about the stressor) have abated somewhat, but depressive symptoms, including suicidal ideation, have increased. The examiner observed the Veteran’s PTSD symptoms to include irritability, loss of temper, and difficulty tolerating stress have affected employment as demonstrated by repeated incidents of being written up on job for losing temper with co-workers and bosses. The Veteran was also afforded a December 2011 VA review PTSD examination, wherein the examiner confirmed a diagnosis of chronic PTSD. The examiner noted the Veteran’s symptoms had improved since the January 2011 examination. The Veteran’s symptoms included depressed mood, panic attacks more than once a week, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. Occupational and social impairment was noted as reduced reliability and productivity. The report notes the Veteran had engaged in outpatient psychiatric care since the January 2011 PTSD examination, and his treatment plan included prescription medication. The report also noted that the Veteran retired in 2009. The examiner opined that the Veteran’s PTSD contributes to mild/moderate barriers to obtain and maintain substantially gainful employment. As a rationale, the examiner noted that the sleep disturbance attributed to PTSD nightmares contributed to mild-moderate fatigue and reduction in energy as required for most forms of physical and sedentary activity. In addition, the Veteran’s aversion to being around people contributes to a moderate barrier for social interaction with colleagues and customers in most employment situations. That noted, the examiner found no evidence of concentration and attention disruptions. The examiner noted that the Veteran had sought employment as a bus driver or for maintenance work in a casino environment which had not been successful. The examiner noted the Veteran’s PTSD with secondary addictive gambling symptoms would contribute to moderate-severe barriers for functional employment in such settings. He claimed to have reduced the frequency of gambling to once per week, and as such, this secondary feature of his service-connected PTSD would contribute to a minimal barrier to employment in settings other than casinos. Following the Board’s June 2020 remand, the Veteran was afforded another VA review PTSD examination dated July 2020. The examiner confirmed separate diagnoses of PTSD and gambling disorder. The report noted that symptoms can be differentiated for each diagnosis. Occupational and social impairment was noted as with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner confirmed that the Veteran had not worked since 2010. Symptoms included depressed mood; anxiety; near-continuous depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; impaired judgment; disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living including the maintenance of minimal personal hygiene. In an attached medical opinion, the examiner noted that the Veteran had not worked since 2010 and when asked, indicated both ‘work’ and ‘education’ as not applicable. In October 2020 the RO requested clarification regarding the impact of the Veteran’s PTSD with gambling disorder on his ability to secure and follow a substantially gainful occupation. The examiner opined in a subsequent November 2020 medical opinion that the Veteran’s PTSD and gambling disorder do not impact him occupationally, only socially. Private treatment records include an April 2016 Office visit record that included a review of psych symptoms and noted the Veteran reports feeling down, depressed or hopeless, and with little interest or pleasure in doing things. VA treatment records include a December 2010 primary care record wherein the Veteran denied suicidal thoughts. A positive depression screen was also noted. A February 2011 psychiatry record noted that the Veteran decided to discuss symptoms indicated in his January 2011 VA PTSD examination, including suicidal ideation. An April 2011 psychiatry record noted the Veteran reported symptoms including irritability with anger outbursts, which affected his family and cost him his job (early retirement), anxiety, hypervigilance, exaggerated startle, isolating, intrusive memories, difficulty concentrating, depressed mood, suicidal ideation, compulsive gambling, poor sleep, and nightmares. An April 2013 treatment record noted that the Veteran denied suicidal and homicidal ideation, and hallucinations. A June 2013 VA mental health discharge record noted that at time of discharge, there was no evidence of hallucinations, delusions or formal thought disorder. He was future oriented. No suicidal or homicidal ideation was noted. A March 2020 residential psychiatry discharge record noted residential treatment was disrupted by the COVID-19 pandemic. The Veteran denied suicidal and homicidal ideation, intent or plan, hallucinations and delusions. An April 2020 post discharge follow-up record noted the Veteran presented as alert and orientated x4, speech was within normal rate and volume, thoughts were logical and linear, and the Veteran denied any suicidal or homicidal ideation and hallucinations. The Veteran also denied suicidal ideation, hallucinations, and delusions in November 2019, February 2020, May 2020, and August 2020 VA treatment records. The Veteran testified during a September 2018 Board hearing that he receives treatment for his PTSD through the VA and that his symptoms are getting worse every year. The Veteran also asserted that he stopped working because he was told to retire, or he would likely be fired was fighting with co-workers and supervisors. The Board finds that the Veteran is competent to observe outward symptoms of the Veteran’s PTSD, including irritability and reports of suicidal ideation. However, the Board notes the Veteran has not been shown to possess the medical or mental health training or credentials necessary to determine whether the symptoms are of such severity as to meet the criteria for a 100 percent rating. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, his lay opinion lacks probative value and is substantially outweighed by the VA examiners. Upon review of the evidence, the Board finds that a rating in excess of 70 percent is not warranted at any point during the appeal. Notwithstanding the Veteran’s acknowledged suicidal ideation, the Board notes that none of the VA examiners found the Veteran’s PTSD resulted in total occupational and social impairment. Much of the analysis centers around the Veteran’s repeated denials of delusions and hallucinations. There are no contemporary medical records which reflect that the Veteran experiences near-continuous panic or depression or delusions and hallucinations, and neither he nor his family has asserted that he does indeed experience these symptoms or symptoms that are equally severe. The Board notes that the standards for a 100 percent total disability rating under the General Rating Formula for Mental Disorders as observed in DC 9411 are substantially different than the standards for TDIU as discussed below. Therefore, the Board finds that the preponderance of the evidence is against a determination that the Veteran experiences total occupational and social impairment, especially in light of the fact that the record shows that he continues to maintain a relationship with his wife of nearly 50 years. The Veteran’s symptomatology contributes to a disability picture that most nearly approximates the criteria commensurate with the currently assigned 70 percent rating during the pendency of this appeal. Accordingly, a 100 percent total evaluation is not warranted at any time. Thus, as the preponderance of the evidence is against the claim for a rating in excess of 70 percent for the Veteran’s service-connected PTSD, there is no doubt to be resolved. An increased rating is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to TDIU from December 14, 2010 Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). This standard does not mean that the Veteran is not completely unable to work but is rather unable to secure and follow employment that will get him to the poverty threshold. 38 C.F.R. §§ 4.16. Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The veteran’s education, employment history, and loss of work-related functions due to pain are factors to be considered. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. § 3.341(a); 8 C.F.R. § 4.19. The Board notes that the Veteran’s claim for service connection for PTSD was granted with a 70 percent rating and effective date of December 14, 2010. The Veteran subsequently filed a VA 21-8940 application for TDIU, received by the RO in September 2011, within one year of the PTSD service connection grant. VA treated the claim for TDIU as a claim for an increased rating for his service-connected PTSD, which had been granted effective less than one year before the TDIU claim. The Board will thus consider TDIU for the entire period from December 14, 2010. In the current appeal, the Veteran has been service connected for PTSD, rated as 70 percent disabling; and diabetes mellitus, type II, rated as 20 percent disabling for the entire period on appeal. The Board finds the 38 C.F.R. § 4.16(a) schedular criteria for consideration of TDIU have been met. The Board notes that the Veteran was employed full time until December 31, 2009, at which time he reported he stopped working because of his PTSD. See September 2011 VA Form 21-8940. A September 2017 treatment record notes that the Veteran was admitted to an in-patient VA mental health treatment program in April 2013. Treatment records reveal that the Veteran was discharged in March 2020 from a second in-patient VA mental health treatment program that was interrupted by the COVID-19 pandemic. The Board finds the Veteran’s service-connected PTSD poses a significant barrier to securing or following a substantially gainful occupation. In the January 2011 VA initial PTSD examination, the examiner noted the Veteran’s PTSD caused occupational impairment as exhibited in his history of being written up for loss of temper and yelling at bosses and coworkers, which resulted in an early retirement in 2009 due to these difficulties. The December 2011 VA review PTSD examination notes that the Veteran retired in 2009 but had been looking for employment but has not found one in part because he prefers a position with reduced interaction with other people. The examiner opined the PTSD symptoms contributed to mild-moderate barriers for his capacities to obtain and maintain substantially gainful employment. The July 2020 examiner did not address the impact of the Veteran’s PTSD on his to follow a substantially gainful occupation as the Veteran indicated he has been retired since 2010. In the November 2020 medical opinion to clarify conflicting medical evidence, the examiner provided an unsupported opinion that the Veteran’s diagnosed PTSD and gambling disorder did not impact him occupationally, only socially. Considering the findings from the VA examination reports and the employment evidence, the Board finds that the evidence is at least in equipoise to show that the cumulative effect of the Veteran’s service-connected disabilities have prevented him from securing and following a substantially gainful occupation. Accordingly, based on the totality of the evidence in this case, the Board will resolve reasonable doubt in the Veteran’s favor and find that his service-connected disabilities precluded him from securing and following all forms of substantially gainful employment consistent with his education and work experience for the entire period beginning December 14, 2010. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU is thus granted from December 14, 2010. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, Associate 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.