Citation Nr: 21006832 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-42 167 DATE: February 5, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to October 21, 2019 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 21, 2019 is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran’s PTSD was manifest by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. During the appeal period, the Veteran was not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for service-connected PTSD have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from June 1967 to June 1969, to include service in the Republic of Vietnam. This matter comes before the Board on appeal from August 2009 (TDIU) and September 2014 (PTSD) rating decisions by a VA RO. The Board denied these claims in October 2018, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court issued a Memorandum Decision vacating the October 2018 Board decision and remanding the matters to the Board. The Veteran’s PTSD is assigned a 100 percent rating effective October 21, 2019. As a total rating has been assigned for PTSD, which is the disability the Veteran asserts results in his unemployability, the rating for PTSD and eligibility to TDIU since October 21, 2019 is moot and not for appellate consideration. A discussion of the procedural history is necessary in this case. In December 2013, the Board issued a decision that increased the initial disability rating for the Veteran’s PTSD to 70 percent. That same day, the RO issued a rating decision effectuating the grant ordered by the Board. In February 2014, the Veteran filed a “Request for Reconsideration, in the Alternative, Notice of Disagreement (NOD)” with the RO. In March 2014, the RO correctly informed the Veteran that the submission could not be accepted as a NOD to the RO’s rating decision. Notably, a rating decision that implements a Board decision cannot be challenged. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994); Donovan v. Gober, 10 Vet. App. 404, 409 (1997). In the March 2014 letter, the RO also directed the Veteran to the Board’s decision for appellate instructions. The Board has interpreted the February 2014 filing as a Motion for Reconsideration of the December 2013 Board decision. In August 2020, the Board denied the Veteran’s February 2014 Motion for Reconsideration. As the Veteran did not appeal the December 2013 Board decision, it is final. 38 C.F.R. § 20.1100 (2013). Thus, the present claim began no earlier than February 2014. Increased Rating for PTSD prior to October 21, 2019 The Veteran asserts that he is entitled to a rating higher than 70 percent for his PTSD during the appeal period. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran was afforded a VA examination in July 2014 to determine the severity of his PTSD. The examiner observed that the Veteran’s level of occupational and social impairment was occupational and social impairment with reduced reliability and productivity. At the July 2014 VA examination, the Veteran reported living with his wife and explained having conflicts due to his irritability and “her problems.” He had been attending church until he had a disagreement with one of the leaders. He reported reading often, including challenging materials such as history and philosophy; otherwise, he reported no change since his last examination. The examiner observed the following symptoms: depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner observed the Veteran’s behaviors as: alert and oriented, providing accurate history, having adequate insight, normal response times, normal affect, normal attention, and not distractible. Spontaneous speech was fluent, grammatic, and free of paraphasis. The Veteran’s immediate, recent, and remote memories were also observed as being within normal limits. The Veteran submitted a May 2018 private psychiatric assessment, where the Veteran gave a thorough history of his childhood and the events and effects of his active duty service. The examiner observed the following symptoms: anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective social relationships, difficulty adapting to stressful circumstances, including work or work like setting, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, and neglect of personal appearance and hygiene. The examiner also observed that the Veteran appeared his stated age, in casual attire. He had a cooperative attitude, answered the questions appropriately, and related well. He had normal tone and volume, no pressured speech, and no aphasia or dysarthria. The Veteran did have constricted affect, but no flight of ideas, looseness of association in the thought process. He denied any form of hallucinations, suicidal or homicidal thoughts or self-injurious behavior, and no delusions. He did report having problems with memory. He was alert and oriented. The examiner did not provide a level of occupational and social impairment, but the symptoms provided do not conflict significantly with the symptoms provided by the July 2014 VA examiner. The Veteran’s lay statements and treatment records do not show evidence in significant conflict with the July 2014 VA examination or the May 2018 private psychiatric assessment. Based on the evidence of record, lay and medical, the Board finds that the Veteran is not entitled to a rating in excess of 70 percent. Notably, the VA examiner found the overall disability picture more closely approximated occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent rating. The symptoms found by the VA examiner and private clinician are all contemplated by the currently assigned 70 percent rating. No medical professional has described total occupational and social impairment. The Board considered the lay statements and finds them to be probative, but ultimately finds that they are representative of symptomatology that approximate no more than occupational and social impairment with deficiencies in most areas. The Veteran has not displayed 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. Instead, at his VA examination he was alert and oriented and provided an accurate history. His speech was spontaneous, and his memory was within normal limits. During his private examination, he was cooperative, answered questions appropriately, and was able to relate well. Speech was normal. He had no flight of ideas or looseness of associations. He denied hallucinations and suicidal thoughts, and there were no delusions. Again, he was alert and oriented. This is not a disability picture indicating total occupational and social impairment. Accordingly, the Board finds that a rating in excess of 70 percent for PTSD is not warranted for this period. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU The Veteran asserts that he was unable to secure and follow a substantially gainful occupation during the appeal period as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected 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). The Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected PTSD, sleep apnea (service connected since February 2018), and erectile dysfunction (service connected since August 2019). Military personnel records reflect the Veteran’s military occupation specialty (MOS) was that of cook. On his May 2009 application for unemployability he reported that his PTSD prevents him from following a substantially gainful occupation. The Veteran reported completing high school. He reported he last worked full-time in 2009 as a cleaning service employee. The Veteran presented for a VA PTSD examination in April 2012 to assess the current severity of his service-connected PTSD, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported the Veteran’s PTSD results in occupational and social impairment with reduced reliability and productivity. During clinical interview the Veteran reported last working in sometime two years prior to the examination, mainly due to the effect of hard concrete floors hurting his legs and back. The Veteran also reported that he did have some difficulty with focusing, attention, and getting along with others. When asked to describe the functional impact the Veteran’s disability has on his ability to work the examiner reported that the Veteran was employable but that he would be expected to have moderate impairment of occupational reliability in productivity and most typical full-time job settings. The examiner suggested that he would best be able to handle a job that was isolated with limited cognitive demands and minimal psychological stress. In June 2014, the Veteran’s private psychiatrist opined that the Veteran’s PTSD interfered with his ability to attend to and process information that would enable him to learn new tasks. His hyperirritability severely compromises his ability to initiate and sustain work relationships, and due to the severity and chronicity of his PTSD symptoms, the Veteran’s psychiatrist opined that the psychiatrist considered the Veteran totally and permanently disabled. The Veteran also presented for a VA PTSD examination in July 2014 to assess the current severity of his service-connected PTSD, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported the Veteran’s PTSD results in occupational and social impairment with reduced reliability and productivity. During clinical interview the Veteran reported that he does not go out with his wife but preferred to stay at home and read. He reported reading challenging materials such as history and philosophy. At the examination, he reported that he took early retirement when he was 62 due to predominantly orthopedic problems, but he also reported problems with concentration and getting along with coworkers. When asked to describe the functional impact the Veteran’s disability has on his ability to work the examiner reported that the Veteran’s PTSD did not render him unable to obtain or maintain substantially gainful employment. Treatment records, including private treatment records are not in significant conflict with findings during VA examination. For example, the June 2018 Veteran’s private treatment provider opined that the Veteran showed no social change, and appeared to have normal speech, constricted affect, thought process showed no flight of ideas, looseness of association, no hallucinations, denying suicidal, homicidal thoughts or self-injurious behavior, and no delusions. Most importantly, in both VA examinations, the Veteran explained that he retired early due to the strain of the job on the Veteran’s non-service connected back and knee pains. In September 2009, the Social Security Administration (SSA) found the Veteran was not disabled for purposes of SSA benefits. His primary diagnosis was listed as osteoarthrosis and allied disorders and his secondary diagnosis was listed as anxiety related disorders. SSA determinations, while relevant, are not binding on the Board. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The Board acknowledges the Veteran’s submissions to SSA included an April 2009 correspondence from his psychologist. In the correspondence, the psychologist opined that the Veteran is totally and permanently disabled and unemployable. To support this opinion, the psychologist reasoned that the Veteran’s PTSD symptoms significantly interfered with his professional, social and personal life. However, in the August 2009 mental residual functional capacity assessment, the Veteran was determined to be mentally capable of simple basic work skills and tasks in a low stress, low demand setting that does not require social interaction in the performance of job duties. Taken as a whole, the Veteran’s symptoms do not suggest he was unable to obtain and maintain employment during the appeal period because of his service-connected disabilities. Given the Veteran’s education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners, SSA, and treatment providers, the Board does not consider this level of impairment as one that would have precluded employment. The Board considered the Veteran’s lay statements that his PTSD symptoms make it difficult to work. The Board acknowledges his mental limitations would make it difficult to work. However, after review of the evidence of record the Board finds that the Veteran’s functional limitations would not preclude employment that allowed some level of isolation and were not overly stressful. The Veteran has experience as a custodian and there are many custodial positions that involve very little interaction with others. The Veteran is also not limited in the physical work he could do because of his service-connected disabilities. Many physically demanding positions require little to no training. In addition, some of these positions would allow for work in relative isolation and would be low stress. Overall, the Veteran was capable of performing a variety of positions which were obtainable given his education and experience. This type of work would also produce income above the poverty threshold. During the appeal period, the Veteran’s service-connected disabilities would not have rendered him unable to secure and follow a substantially gainful occupation. Thus, a TDIU is not warranted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.