Citation Nr: 21008044 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-13 694 DATE: February 11, 2021 ORDER An initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. 2. The Veteran’s service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD 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 a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). During the pendency of the appeal, in a February 2019 rating decision, the RO increased the PTSD rating to 70 percent, effective February 8, 2010. As the highest rating was not granted, the issue remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). In March 2019 and January 2020, the Board remanded increased rating and earlier effective date PTSD claims for additional development. Pertinent to the earlier effective date claim, January 2020 remand directives instructed the RO to issue a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). In a March 2020 SOC the RO adjudicated the earlier effective date claim; however, the Veteran did not file a timely substantive appeal. Therefore, the earlier effective date claim is not presently before the Board. In his April 2019 substantive appeal to the Board, the Veteran alleged the inability to work due to his service-connected PTSD. See April 2019 VA Form 9. As entitlement to a TDIU has been raised as part and parcel of the increased rating claim on appeal, the Board has assumed jurisdiction of this issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial rating in excess of 70 percent for PTSD The Veteran contends that his PTSD symptoms warrant a rating higher than the currently assigned 70 percent disability rating. See April 2019 VA Form 9. 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. Initially, the Board acknowledges that in November 2019 the RO attempted to schedule the Veteran for a new VA PTSD examination, but he did not respond to scheduling requests. November 2019 VA treatment records document attempts to contact the Veteran to schedule an examination, and voice messages, but the Veteran did not respond to the request. See also November 2019 Standard 5103 Notice. The VA examination was cancelled. The Veteran and his representative have not requested that the examination be rescheduled or shown good cause for the failure to respond. As such, the Board will adjudicate the claim based on the evidence of record. VA treatment records, the September 2015 VA examination, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating (intermittently illogical and irrelevant speech, spatial disorientation, impaired impulse control, neglect of personal appearance and hygiene, and suicidal ideation), and symptoms associated with a 100 percent rating (hallucinations). He also had symptoms that are not listed with a specific rating, such as thoughts of stealing and idiosyncratic logic. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. On September 2015 examination, the Veteran reported having auditory hallucinations during daydreams and nightmares, but they were not present during the examination. The examiner acknowledged that the Veteran also had a diagnosis of schizophrenia and indicated that it was possible to differentiate what symptoms are attributable to each diagnosis. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The examiner attributed symptoms of hallucinations and delusions to nonservice-connected schizophrenia. Further, thoughts of stealing and idiosyncratic logic are similar to impaired impulse control and intermittently illogical, obscure, or irrelevant speech, which are contemplated by the assigned 70 percent rating. 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. Although February 2020 VA treatment records document urgent care treatment for suicidal ideation, prior to this visit the Veteran did not seek any treatment for thoughts intent, or a plan involving self-harm. Significantly, the treatment records from this incident note that the Veteran did not injury himself but was relating his suicidal thoughts to a social worker and was subsequently admitted. In October 2018 VA treatment records document his denial of self-harm or intent to harm others. Similarly, in August 2019, he denied suicidal and homicidal ideations and reported a suicide attempt in the 1990’s. A November 2019 VA suicide risk assessment documents the Veteran’s report that he last had thoughts of suicide in 2007. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced 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 September 2015 VA examination indicate that the Veteran appeared to have poor oral hygiene, but his personal hygiene was otherwise unremarkable. He appeared in worn unlaundered clothes, but his grooming was casual with a nice ring and short haircut. His mood was described as neutral with sometimes exaggerated affect and somewhat dramatic gesticulation. Speech was slightly loud characterized by perseveration, tangentiality, and mild digressiveness. The Veteran had transient mild idiosyncratic logic but still managed to provide answers to most questions. He was observed as socially appropriate with good rapport. There were no signs of active hallucinations. During an October 2019 mental status examination, VA treatment records show that the Veteran’s appearance was appropriate with good hygiene. His attitude and behavior were cooperative with a calm mood. His affect was congruent with content speech. The Veteran was described as alert and oriented in all spheres with no perceptual distortions and normal speech. His thought content was unremarkable and though process was logical. Insight and judgment were described as fair. While the Veteran did experience symptoms contemplated by a 100 percent rating—hallucinations—this symptom was attributed to a non-service connected disability. In this case, the evidence does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, the September 2015 VA examiner opined that the Veteran’s PTSD symptoms caused occupational and social impairment with 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). While the Veteran, has reported avoiding interactions with other, prior and subsequent treatment records contain reports that the Veteran was friendly, a good listener, and had strong personal and spiritual values. See September 2019 VA Mental Health Treatment Note. In fact, during the September 2015 VA examination, the Veteran reported that he attends church, and goes to shopping centers. He also reported that he avoids interacting with others, but can tolerate crowded retail stores. 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 criteria for a 100 percent or higher rating are not met and the appeal must be denied. 2. Entitlement to a TDIU As indicated above, the record has raised the issue of entitlement to a TDIU. See Rice, 22 Vet. App. at 453. In his April 2019 VA Form 9, the Veteran alleged that his PTSD symptoms preclude gainful employment and a TDIU is therefore warranted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A claim for TDIU is because of subjective factors that the objective rating does not consider. Vittese v. Brown, 7 Vet. App. 31 (1994). When there is an approximate balance of positive and negative evidence material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Marginal employment shall generally be deemed to exist when a Veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. The Veteran has been granted service connection for one disability, PTSD, evaluated as 70 percent disabling from February 8, 2010. Thus, he meets the percentage requirements for a schedular TDIU. 38 C.F.R. § 4.16(a). After careful review, the Board finds that the preponderance of the evidence shows that the Veteran is not precluded from obtaining and maintaining gainful employment consistent with his education and occupational experience due to his service-connected PTSD. The Veteran has an associate’s degree from a college in Alabama. See September 2015 VA PTSD Examination. After military service, he completed pipefitters school training and worked on shipbuilding, but reports that he had numerous layoffs and was fired. Id. Until 2009, he worked in a cafeteria as a dishwasher and table busser. Id. He reported mowing the lawn for his church in exchange for food and housing. Id. There is no evidence of record suggesting that the Veteran has been asked to leave a job or had significant problems at a job due to his service-connected disability. On September 2015 examination, the examiner found that that the Veteran’s PTSD symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks although generally functioning satisfactorily, with normal routine behaviour, self-care and conversation. Although the Veteran has difficulty establishing and maintaining effective social and work relationships as well as difficulty with speech, the record does not indicate that he could not continue to work as a laborer or in landscaping as these occupations would allow for isolated work with minimal interpersonal interactions. The evidence also does not suggest that the Veteran’s employment has been marginal, or that he is only able to work, or does work in a protected environment. In an October 2019 letter, VA requested that the Veteran complete VA Form 21-4192, Request for Employment Information; and VA Form 21-8940, Application for Increased Compensation Based on Unemployability. However, based on review of the claims file, the Veteran has not completed and returned the requested forms. The Board acknowledges that the Veteran he has been in receipt of Social Security Administration (SSA) benefits since 2009 based on a finding of unemployability. However, VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA, but such findings are evidence to be considered in a TDIU claim. See Collier v. Derwinski, 1 Vet. App. 413 (1991). The Board has carefully reviewed the SSA records and determination and, while SSA found the Veteran is disabled, based on the discussion above, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran is unable to secure and maintain some form of substantially gainful employment solely because of his service-connected PTSD disability. The Board recognizes that the Veteran’s service-connected PTSD may result in some occupational impairment and/or inconvenience in a workplace; however, he is being compensated for those limitations in the award of a 70 percent schedular rating. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disabilities and the residual conditions in civilian occupations. In sum, the evidence deemed most probative by the Board establishes that the Veteran’s service-connected PTSD symptoms have not rendered him unable to secure and follow a substantially gainful occupation at any time during the appeal period. Thus, entitlement to a TDIU is not warranted, and the claim must be denied. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.