Citation Nr: 21007822 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 11-34 387 DATE: February 10, 2021 ORDER A disability rating of 50 percent, but no higher, for the service-connected posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from September 21, 2009 is granted. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran’s service-connected PTSD was manifested by symptoms more nearly approximating occupational and social impairment with reduced reliability and productivity. 2. The Veteran completed high school and has not maintained substantially gainful employment since June 2001. He has experience as a computer cabinet maker and airport assistant for disabled persons. 3. As of September 21, 2009, the Veteran’s service-connected disabilities included posttraumatic headaches, ratable as 50 percent disabling, PTSD, ratable as 50 percent disabling, tinnitus, ratable as 10 percent disabling, shrapnel wound, right forearm (major), ratable as 10 percent disabling, residuals of shrapnel wound, right eyelid, ratable as 10 percent disabling, mild traumatic brain injury, ratable as 10 percent disabling, residuals of shrapnel wound to the right thigh with scarring and femoral nerve injury, ratable as 10 percent disabling, right ear hearing loss, status post perforated eardrum with scarring on right tympanic membrane, ratable as noncompensable, residuals of shrapnel wound, left eyelid, ratable as noncompensable, and mild tympanosclerosis of the left tympanic membrane, ratable as noncompensable. 4. From September 21, 2009, the Veteran’s service-connected disabilities, at least as likely as not, precluded him from maintaining substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability rating, but no higher, for the service-connected PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. 2. From September 21, 2009, the criteria for entitlement to a TDIU have been more nearly approximated. U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to April 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to a disability rating in excess of 30 percent for the service-connected PTSD. The Veteran’s initial claim for increased rating was received by VA on September 21, 2009. Following the August 2010 decision, in September 2010, VA received the Veteran’s Notice of Disagreement (NOD). In November 2011, the RO issued a Statement of the Case (SOC). In January 2012, VA received the Veteran’s VA Form 9 appeal to the Board. In June 2014, February 2018, and August 2019, the Board remanded the case for further development and adjudicative action. In December 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. At the outset, the Veteran’s initial claim for increased rating for PTSD was received on September 21, 2009. During the period on appeal, in a July 2014 VA Form 21-8940, the Veteran stated that he was last gainfully employed in June 2001. Furthermore, in an August 2017 rating decision, the RO assigned a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective from November 22, 2013. However, as the Veteran submitted evidence of unemployability during the pendency of his claim for increased rating for PTSD, an inferred claim for TDIU was raised as part and parcel of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, given that an inferred claim for a TDIU has been reasonably raised by the record, entitlement to a TDIU for the period prior to November 22, 2013 will be considered in the decision below. Increased Rating 1. A disability rating in excess of 30 percent for the service-connected PTSD. The Veteran seeks a disability rating in excess of 30 percent for his service-connected PTSD. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  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 for that rating.  Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.  When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b).  When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999).  Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Veteran’s PTSD is currently evaluated as 30 percent disabling, effective November 19, 1980, under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 30 percent disability rating is assigned for 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 rating is prescribed for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411.    A 70 percent rating is prescribed for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411.    A 100 percent rating is prescribed 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; memory loss for names of close relatives, own occupation, or own name. Id.    The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002).   In other words, 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 analysis must include a determination as to 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).  In determining whether the Veteran meets the criteria for a 70 percent rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, or mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). During a December 2009 VA examination for PTSD, the Veteran reported having nightmares 4 to 5 times per week about being captured, bound, and tortured in Vietnam. Furthermore, he indicated intrusive thoughts of Vietnam, “which involved ‘being out in the bushes. When I got blown up’.” The Veteran “seldom” went to restaurants and sat “next to the wall” when he did. However, thought processes were logical, memory was intact, and the Veteran was “oriented in all spheres.” No suicidal or homicidal ideation, hallucinations, or delusions were noted. The examiner concluded that the Veteran’s symptoms from PTSD were “mild to moderate.” A December 2009 mental health note indicates “h/o of nightmares 2-3 times per night” and “in the past he struck [his] wife while having a dream.” A November 2010 mental health note reflects continued nightmares 4 times per week and sleep of only 4 hours per night with variable concentration and memory. Mental health medication management notes from February 2011 and January 2014 reflect periods of depression lasting a few hours per day, several days per week, or “some of the time but not all the time,” as stated by the Veteran. Moreover, the January 2014 note, and a June 2016 mental health medication note, reflect problems with memory and, in particular, recalling names. Numerous treatment notes between the December 2009 and October 2014 VA examinations indicate that the Veteran largely avoided people other than his wife to keep his anger under control. See, e.g. mental health medication management note dated May 20, 2010. The Veteran received another VA examination for PTSD in October 2014. The examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment resulting in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In a June 2016 mental health medication management note, the Veteran reported continued frequent nightmares but denied problems with memory. He received a further VA examination for his PTSD in June 2016; however, as noted by the February 2018 Board decision, the examiner failed to complete the disability benefits questionnaire. Therefore, the June 2016 examination report merits no further consideration. A June 2017 mental health medication management note reflects that the Veteran “has had some thoughts of self-harm in the past month.” During the day, he reported intrusive images of the “the big fire coming.” An August 2017 mental health medication note indicates that the Veteran “has some reexperiencing: see[ing] firefights in his mind.” The Veteran most recently received a VA examination for PTSD in May 2018. In the examination report, the examiner noted only symptoms of chronic sleep impairment resulting in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Thought processes and associations during the examination were “logical and tight.” An August 2018 mental health medication management note reflects that the Veteran was experiencing nightmares “most every night” and that, the prior night, his wife had found him “under the table.” The August 2018 note also indicates continued isolation in the home. A July 2019 mental health medication management note reflects that the Veteran “does have occasional passive [suicidal ideation] thoughts, [but] no plan/intent”; the Veteran denied SI/HI during the visit. A September 2019 mental health medication management note indicates “increasing frequency and intensity of nightmares,” and that the Veteran had accidentally struck his wife upon waking up from one nightmare. He also reported “constant” anxiety, hypervigilance, and intrusive thoughts about his trauma. Finally, during the December 2020 Board hearing, the Veteran reported thoughts of self-harm, but no plan or intent. Additionally, he indicated nightmares and/or flashbacks occurring 5-7 days per week, anxiety attacks 3 or 4 times per day, social isolation, continued social isolation, discomfort in crowded places like his church, paranoia, and always sitting with his back to the wall when in public places. Testimony from the Veteran’s wife revealed that he needed reminders to shower or else he would go without showering for several days. Based on the foregoing, a 50 percent disability rating for the service-connected PTSD is warranted for the entire period on appeal. Specifically, when considering the frequency and severity of the Veteran’s nightmares in particular, the Veteran’s symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. Furthermore, the Veteran has credibly reported panic attacks, concentration and memory problems, social isolation, intrusive thoughts, hypervigilance, anxiety, and depression throughout the period on appeal. Regarding the concentration and memory problems, there is no indication in the record that they are age-related or otherwise due to nonservice-connected pathology; therefore, as the evidence does not suggest that the Veteran has a separate cognitive disability, the memory loss and concentration difficulties will be attributed to the service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998). Given the above, the criteria for a 50 percent disability rating are met for the entire period on appeal. However, a disability rating in excess of 50 percent for the service-connected PTSD is not warranted at any time during the period on appeal. In this regard, although the Veteran periodically reported thoughts of self-harm to VA treatment providers and during the December 2020 Board hearing, he consistently denied plan or intent. Additionally, while the Veteran wife testified that the Veteran needed to be reminded to shower during the December 2020 Board hearing, this limited evidence of neglect of hygiene, which is one of the criteria for the 70 percent rating, is heavily outweighed by symptoms more closely approximating the criteria for the 50 percent rating and lower, which are described in the paragraph above. Furthermore, there is no evidence showing symptoms including 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; difficulty in adapting to stressful circumstances (including work or a work like setting); or, inability to establish and maintain effective relationships. Accordingly, the criteria for a 70 percent disability rating for the service-connected PTSD have not been more nearly approximated at any point during the period on appeal. TDIU 2. Entitlement to the assignment of a TDIU for the period on appeal prior to November 22, 2013. As noted above, an inferred claim for TDIU has been raised as part and parcel of the September 21, 2009 claim for increased rating for PTSD. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). In determining unemployability, consideration should be given to the veteran’s prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342 (2000). Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3. The Veteran was last gainfully employed in June 2001. He first met the schedular criteria for a TDIU as of September 21, 2009; as of that date, the Veteran’s service-connected disabilities included posttraumatic headaches, ratable as 50 percent disabling, PTSD, ratable as 50 percent disabling, tinnitus, ratable as 10 percent disabling, shrapnel wound, right forearm (major), ratable as 10 percent disabling, residuals of shrapnel wound, right eyelid, ratable as 10 percent disabling, mild traumatic brain injury, ratable as 10 percent disabling, residuals of shrapnel wound to the right thigh with scarring and femoral nerve injury, ratable as 10 percent disabling, right ear hearing loss, status post perforated eardrum with scarring on right tympanic membrane, ratable as noncompensable, residuals of shrapnel wound, left eyelid, ratable as noncompensable, and mild tympanosclerosis of the left tympanic membrane, ratable as noncompensable. The combined schedular rating is 90 percent as of September 21, 2009. Therefore, as the Veteran had at least one disability ratable as at least 40 percent disabling and a combined schedular rating of at least 70 percent as of September 21, 2009, the schedular criteria are met from September 21, 2009. See 38 C.F.R. § 4.16(a). The Veteran completed high school. According, to the Veteran’s July 2014 VA Form 21-8940 Application of Increased Compensation Based on Unemployability, the Veteran worked as a computer cabinet maker between April 1969 and June 2001. His highest gross earnings per month were $5,040. From 2009, the Veteran worked part-time at wheelchair pusher at a local airport. Total earned income within the past 12 months was $8,170.82 with monthly earnings of $450.54. He retired from the airport job in 2014. Regarding the above, the poverty threshold for one person over the age of 65 as established by the U.S. Department of Commerce, was $11,354 in 2014. Given that the Veteran’s income from his part-time job between 2009 and 2014 is below the poverty threshold for one person in his age group, the Veteran’s employment between 2009 and 2014 is considered marginal employment for TDIU purposes. See 38 C.F.R. § 4.16(a). During a December 2009 VA examination of his right elbow, right thigh, and right eye, the Veteran indicated that he had some slight blurred vision of the right eye and that his right leg “occasionally goes out on him.” An October 2010 VA examination report for the Veteran’s posttraumatic headaches revealed that the Veteran experienced headaches occurred 4 times per week and lasting up to 6 hours. The headaches were prostrating for about 3 days out of the week. During headaches, the Veteran experienced photophobia, phonophobia, dizziness, nausea, a “flash” in his visual field prior to headaches, and weakness. In the November 2010 rating decision that granted service connection for posttraumatic headaches, the RO conceded that the Veteran’s headaches were productive of severe economic inadaptability. During an October 2010 VA examination, the Veteran indicated that his shrapnel-affected right arm “on occasion feels like it is going to sleep.” Furthermore, he indicated aching discomfort of the right arm. As discussed in the section above, during the period on appeal, the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity, with symptoms of panic attacks, concentration and memory problems, social isolation, intrusive thoughts, hypervigilance, anxiety, and depression. After considering all of the evidence of record, including the Veteran’s statements and the medical evidence, the Board finds that, prior to November 22, 2013, the preponderance of the evidence shows that the Veteran’s service-connected disabilities, in conjunction, preclude performance of substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 77F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, the October 2010 VA examination report for the Veteran’s posttraumatic headaches reveals severe economic inadaptability due to headache symptoms. Furthermore, the evidence shows that the Veteran’s residuals from shrapnel wounds resulted in numbness and aching of the affected limbs and blurred vision of the right eye. Finally, the Veteran’s PTSD was manifested by symptoms approximating occupational and social impairment with reduced reliability and productivity. The combination of symptoms from the Veteran’s service-connected disabilities suggests that he would be unable to maintain either physically active or sedentary employment. (Continued on the next page)   Thus, given the lay and medical evidence indicating the Veteran’s functional limitations due to his service-connected disabilities, and in light of his work experience, training, and education, the preponderance of the evidence supports the assignment of a TDIU prior to November 22, 2013. Accordingly, the assignment of a TDIU is warranted from September 21, 2009, the date that the schedular criteria for a TDIU were first met, and the date on which the Veteran’s claim for increase was received. See Geib, 77F.3d at 1354. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.