Citation Nr: 21008322 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 17-46 628 DATE: February 16, 2021 ORDER Entitlement to a 70 percent rating effective July 31, 2009 for posttraumatic stress disorder (PTSD) is granted. Entitlement to individual unemployability (TDIU) is granted as of March 1, 2020. FINDINGS OF FACT 1. The Veteran’s PTSD symptoms more nearly approximated occupational and social impairment, with deficiencies in most areas; the symptoms did not cause total occupational and social impairment. 2. Resolving any doubt in favor of the Veteran was precluded from engaging in substantially gainful employment due to service-connected disabilities as of March 1, 2020.  CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have been met as of March 1, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1966 to December 1968. In a July 2019 decision, the Board of Veterans’ Appeal (Board) denied the appeal for an initial rating in excess of 30 percent for PTSD and a total TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Partial Remand (JMPR) vacating and remanding the July 2019 Board decision. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) The Veteran through his representative asserts that a 70 percent rating is warranted for PTSD from July 31, 2009 to September 24, 2009; and a total rating is warranted from September 25, 2009 onward. The record reflects the Veteran’s PTSD is currently evaluated at 30 percent from July 31, 2009. PTSD is rated under the General Rating Formula for Mental Disorders. 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). 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126 (a). 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. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). During a March 2013 Board hearing, the Veteran testified to symptoms related to his service connected PTSD. The Veteran testified to having two jobs following service; where he retired because he turned 62 and could retire. The Veteran further testified that retiring was not related to dealing with other people. He did testify that when he was younger when he got mad he would throw a wrench or drop a wrench on a person. The Veteran also testified to being married once. The Veteran testified that he goes out a lot and sees friends. The Veteran also testified to outings in public, including NASCAR events, and visiting family. In addition to the Veteran’s outings, he did testify to having symptoms of anxiety with certain noises including military jet fly overs, looking all around, not sitting with back to door, and taking a different route home then the route he took to visit family. He also reports improvement in his symptoms over the years. Considering the Veteran’s testimony related to the rating criteria, the Veteran makes note to symptoms that are related to obsessional rituals which interfere with routine activities including looking all around, not sitting with back to door, and taking different routes home. The Veteran’s testimony shows he does not have a total occupational and social impairment. The Veteran has testified to a long career with a volunteered retirement, long marriage, and relationships with friends and family. In a January 2016 VA treatment record, the Veteran complained of flashbacks and nightmares. He stated if he sees articles/movies about the war he would have nightmares. He further stated he can’t stand fireworks. The clinician noted the Veteran has agoraphobia (can’t stand being around people). A March 2016 VA psychology initial evaluation found the following to be within normal limits: sleep, interest, energy, concentration, appetite, and psychomotor. Veteran denied feelings of guilt, suicidal and homicidal ideations. Veteran reported his mood as: “I’m in a good mood”. Veteran reported relationship with wife and children as “good”. Veteran reported being edgy when he hears shoppers or military planes. He avoided stores, likes to avoid crowded places, doesn’t like to sit with back to the door, denies remembering dreams, avoids watching anything about Vietnam. He spends time with military friends. He reports symptoms have improved over the years. When asked about how symptoms are affecting his functioning the Veteran stated: “not a whole lot”. He reported getting support from family as well as people in the community; noting people give him verbal support when he is in public wearing his Vietnam Veteran hat. In a July 2016 VA treatment record, the Veteran reported being edgy, not knowing if he has nightmares unless his wife tells him, and sometimes having moments where he feels as if he is back in the War. He reports hearing a jet overhead and looked for a hole to crawl in, which does not happen often. He stated his instant reaction is to look up when he hears choppers overhead. The Veteran’s VA treatment records in considering the rating criteria shows symptoms no higher than a 70 percent evaluation with obsessional rituals which interfere with routine activities. The treatment records do not show the Veteran meets symptoms in the 100 percent evaluation for total occupational and social impairment. The Veteran continues to have a good relationship with his wife, family, and the community. During a July 2017 VA examination, the clinician indicated the Veteran to have 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. The clinician indicated the Veteran had active symptoms of anxiety and difficulty in maintaining effective work and social relationships. The clinician observed the Veteran arrived early for the examination, was agreeable to beginning the interview early, was casually and appropriately dressed, his hygiene and grooming were appropriate, he was cooperative, oriented to person, place, and date, his mood was euthymic, his affect varied appropriately, he had good attention and concentration, normal rate of speech, appropriate eye contact, thoughts were free of any delusions, he had good insight into his symptoms and the impact that they have upon his day to day functioning, and his judgment intact. During the July 2017 examination, the Veteran indicated he remained married to his wife of 50 years. He reports the relationship is “ok” and “we have had our ups and downs.” He reported having an adult son and daughter. When asked about his relationship with his children the Veteran stated, “it is ok, we always get together for functions and stuff.” He reported having a few Veteran friends and difficulties socializing with non-Veterans. He indicated that he is a recreational shooter and goes to the range and hunting. He reported working for Ryder company from 1971 until he retired in 2009. He reported being sent home from work without pay three times in his early days, related to his anger issues. He reports a management change in a year and a half prior to retirement that was difficult to work with. He reports working part time for and parts store starting in November 2009 to present because “doing nothing got old real quick”. When asked about difficulties at work, he said “not really.” He said that he gets along with people “to a certain extent,” bud did note that “I don’t socialize with people. He denied any attendance issues or that he has any negative comments from his supervisor about his work performance. The VA examinations in consideration with the rating criteria again show the Veteran does not meet an evaluation higher than 70 percent. The Veteran reported a long career for which he retired from and then chose to take a part time job because he was looking for something to do. The Veteran reported participation in hobbies outside of the home. There is a showing of an inability to establish and maintain effective relationships with non-Veterans and a lack of socializing with people at work. In a November 2016 statement, the Veteran’s wife stated, “he is still having bad dreams where he wakes up screaming or whimpering from a sound sleep.” She also reported when at the grocery store the Veteran looked down each aisle for snipers and on the way home “he takes a short cut to avoid snipers which was 12 miles out of the way”. In a September 2020 statement, the Veteran’s wife stated he would have nightmares where he would yell out, whimper or cry and he would not remember anything once he woke up. She stated when they went shopping together, he would sit in the car looking for snipers or check every aisle looking for snipers if he went in the store. She stated they would never drive home the same way because of snipers. When at a restaurant he has to sit facing the door in case of snipers. “But usually, he never leaves the house because he is afraid and has to be ‘on guard ‘all the time’ looking for the snipers.” She reports the Veteran gets nervous with fireworks on the fourth of July or if a war movie comes on TV. She states he has a temper and get angry when something doesn’t get done or someone ways the wrong thing. “Nothing gets done around the house because he is depressed all the time, has no motivation, and sits in his chair all day.” The lay statements in consideration with the rating criteria show the Veteran continues to meet an evaluation of 70 percent based on symptoms including obsessional rituals which interfere with routine activities, unprovoked irritability, and panic or depression affecting the ability to function independently. A Private psychiatry treatment record conducted a review of the record and interview with the Veteran in October 2020. The clinician noted the Veteran was 100 percent psychiatrically disabled, incapable of safely functioning in a standard job site, since at least when he last worked full-time in September 2009. During the interview, the Veteran indicated that when he first started working at a Truck Company, he became violent in the workplace. He states he was able to control some of his behavior for fear of losing his job. The Veteran noted not seeing his tenure lasting much longer due to an increase in symptomology and his fear it would have on his ability to complete his work safely. The Veteran described having issues with new management and decided to look for the quickest way out by taking voluntary retirement. The Veteran then stated he took a part-time job for an auto parts store; it was the only way to survive as work was the only way he knew to mitigate his symptoms. The examiner discussed the Veteran’s reported symptoms. Even though the October 2020 private psychiatry treatment notes the Veteran was 100 percent psychiatrically disabled, incapable of safely functioning in a standard job site since at least when he last worked full-time in September, the note is a conclusion that is refuted by the evidence of record as discussed above. In 2013 the Veteran testified that his retirement was not because of dealing with other people. The VA treatment records and VA examination reports show symptoms associated with his condition but indicate that he was able to maintain social relationships and do not demonstrate total occupational and social impairment required for a 100 percent rating. In this case, the Board finds that the symptoms of the Veteran’s PTSD are more closely approximated by a 70 percent rating for the period of appeal. The medical and lay evidence of record shows deficiencies in most areas due to such symptoms as: obsessional rituals which interfere with routine activities; panic or depression affecting the ability to function independently; and impaired impulse control, such as unprovoked irritability. The next higher, 100 percent rating criteria contemplates total social and occupational impairment, which the Board finds is not shown in this case. While the Board has considered the medical opinions of record that suggest that the Veteran is totally socially and occupationally impaired, the Board also notes that the Veteran remained employed during the period on appeal; even if in a reduced and accommodating capacity. Additionally, with regard to social impairment the Veteran has reported community support, has relationships with friends and family, and maintaining a relationship with his wife. The Board finds that this evidence is show that the Veteran’s symptoms being more closely approximated by the criteria contemplated by a 70 percent rating from July 31, 2009 and onward. The Board finds that the weight of the evidence does not demonstrate that there is total social and occupational impairment and the criteria for a 100 percent rating are not met. 1. Entitlement to individual unemployability (TDIU) The Veteran contends that he is entitled to a TDIU on the basis that his service-connected disabilities prevent him from maintaining substantially gainful employment. Although he was employed following discharge from military service until March 2020, he contends that his employment constitutes a “protected environment” as contemplated by 38 C.F.R. § 4.16 (a) and without this protected environment he would not otherwise be able to maintain gainful employment. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (a). TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. In determining entitlement to TDIU, neither the Veteran’s non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a).  Marginal employment shall not be considered substantially gainful employment, and generally shall 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. 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). The Veteran’s service-connected disabilities meet the schedular criteria for TDIU from July 31, 2009. The remaining question for the Board is whether the Veteran is employed in a protected environment. Work in a protected environment will also be considered marginal and is not determined on the basis of salary. Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (interpreting the provisions of 38 C.F.R. § 4.16 (a)). In Cantrell, the Court addressed this method of establishing marginal employment which required the Court to review the meaning of employment in a protected work environment. The Court found that the plain language of § 4.16(a) does not expressly define employment in a protected environment and that the non-exhaustive list of examples of what may constitute employment in a protected environment i.e., a family business or sheltered workshop fails to resolve this uncertainty. The Court also determined that it was unable to defer to the Secretary’s definition, finding instead that the Secretary had refused to proffer any definition of employment in a protected environment for the Court to analyze. Absent an articulated standard for employment in a protected environment, the Court concluded that it was unable to effectively review the Board’s decision. The evidence of record indicates that the Veteran worked in some capacity following service through March 2020. The Veteran worked for a Truck Rental Company from 1971 until retirement in 2009. The Veteran reported during medical treatment that he retired due to anger issues and a change of management in the last year and a half of his employment with the truck Company. However, the Veteran testified prior in a March 2013 Board hearing that he retired because he could and that his retirement was not related to dealing with other people. In a July 2019 VA examination the Veteran reported he stayed with the truck company for a year and a half following a change in management from a manager who he reports had been protecting his employment. The Veteran’s report shows employment with the company not in a protected environment. The Veteran reports working part time for an auto parts store starting in November 2009, because “doing nothing got old real quick”. When asked about difficulties at work, he said “not really.” He said that he gets along with people “to a certain extent,” bud did note that “I don’t socialize with people. He denied any attendance issues or that he has any negative comments from his supervisor about his work performance. The Veteran also stated he took a part-time job for because it was the only way to survive as work was the only way he knew to mitigate his symptoms. The record reflects that the Veteran stopped working in March 2020. The Veteran notes receiving accommodations because he is a Veteran; which he notes is common practice by the company to hire Veterans and accommodate them. An accommodation provided to all employees does not show the Veteran worked in a protected environment. In addition, the Veteran’s attorney noted in a November 2020 Appellant’s brief that the Veteran’s employment should be considered marginal for the purposes of 38 C.F.R. § 4.16 because the Veteran earned very little for his work. It was argued that a submitted earning record from the Social Security Administration, which showed varied earnings hovering below or slightly above the poverty threshold (though still well below the rate that a grant of TDIU) would pay since 2010. It was concluded that even the accommodations the Veteran was provided amounted to earnings just slightly over the poverty threshold since September 2009. Because as indicated by the Veteran’s attorney, the Veteran’s earned income while employed on a part time basis exceeded the poverty threshold since September 2009, that part time employment is not considered marginal on the basis of the earned income. The October 2020 private examiner concluded that the Veteran has been totally disabled since he stopped working in September 2009. The examiner indicated the Veteran had under reported psychiatric symptoms in the past and that he had avoided discussing his symptoms with VA providers because he did not want to have to then continue to discuss them every time he went to the VA. The examiner indicated that statements and interview with the Veteran and his wife document severe depression impacting his ability to perform basic everyday activities, hypervigilance include obsessive rituals, isolation surrounding anxiety, anger, irritability that show a far more severe clinical picture of PTSD that will continue to worsen due to lack of treatment. While the private October 2020 examiner concludes that the Veteran has been totally disabled and unable to work since September 2009, the Board finds that the weight of the credible and probative evidence shows that entitlement to TDIU is warranted as of March 1, 2020 and not earlier. As indicated above, the Veteran’s part time employment beginning in 2009 is not considered marginal employment because income was above the poverty threshold and the work was not in a protected environment. While the examiner indicated that the Veteran underreported symptoms of PTSD prior to the examination in October 2020, at the time of the 2013 hearing, the Veteran testified under oath that he did not leave work in 2009 due to PTSD symptoms. The VA treatment records and examination reports do not show evidence of total occupational impairment prior to March 2020. While the Board recognizes that Veteran has indicated that he did not fully report his symptoms to VA providers, the testimony and lay and medical evidence does not demonstrate that PTSD symptoms, to include his mental and physical abilities, resulted in an inability to obtain or retain employment prior to March 2020. While the exact date the Veteran stopped working in March 2020 is not documented in the record, he reported to the October 2020 private examiner that he stopped working by March 2020. Based on the weight of the competent, credible and probative evidence of record, there is evidence showing the inability to obtain or retain substantially gainful employment due to PTSD as of March 1, 2020. As such, the Board will resolve any doubt in the Veteran’s favor and finds that TDIU is warranted as of March 1, 2020. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lang, 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.