Citation Nr: 21008943 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-41 812 DATE: February 18, 2021 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD is not shown to be productive of total social impairment. 2. The evidence of record does not demonstrate that the Veteran’s service-connected disabilities render him unable to secure or follow gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2020). 2. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from April 1967 to April 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from the rating decisions dated in April 2012 and March 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The issues on appeal were previously remanded by the Board in July 2018 and October 2020 for further development. Rating for PTSD Disability—Laws and Analysis Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 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. The Veteran seeks a disability rating higher than 70 percent for his service-connected PTSD, which is evaluated under DC 9411. 38 C.F.R. § 4.130. The next-higher rating of 100 percent under DC 9411 is assigned 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 or place; and memory loss for names of close relatives, or for the veteran’s own occupation or name. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so)). Upon review of the relevant evidence of record, the Board finds that the Veteran’s PTSD symptomatology does not more nearly approximate the criteria for a 100 percent rating. More specifically, the Veteran’s PTSD symptoms do not more nearly approximate total social impairment and do not contemplate the symptomology considered under the 100 percent rating criteria. The evidence of record indicates that, although the Veteran has a small social network, he has a good relationship with his children and grandchildren. See e. g., August 2011 and January 2013 VA examination reports. Further, the Veteran has reported having a girlfriend and enjoyed watching TV, going out to dinner, and going to the movies. See January 2013 VA examination. The evidence includes an April 2018 psychiatric report, conducted by Dr. Lazarus, a clinical psychologist. Result of the evaluation were noted to show “moderate” major depressive disorder and PTSD. It was further indicated that the Veteran’s diagnosed psychiatric disorders resulted in “significant deficiencies in his family relations as well as very likely his work performance.” The Veteran was found to have depressive symptoms with suicidal ideation and episodes of unprovoked irritability and agitation. Dr. Lazarus stated that, although the Veteran suggested that he went to (what he described as work), it appeared that the Veteran merely went to a store that he had once owned. The Veteran reported that he had few friends, but socialized a bit while at the store. He also stated that he got along fairly well with children. The evidence also includes a December 2018 VA psychiatric examination where the Veteran reported having a positive relationship with his children and remained in contact with his ex-spouse. He also indicated that he had some friends in the area. The evidence also includes a February 2019 VA medical opinion which indicated that the Veteran’s PTSD symptoms, including depression and anxiety, “impair his ability to make or maintain relationships easily due to his emotionality, irritability, and withdrawal.” The examiner further indicated that, while it was important for the Veteran to try to interact with people to help him from withdrawing further, it was difficult for him to do so “without allowing his symptoms (especially irritability and outbursts) to interfere with those relationships.” It was further noted that the Veteran continued to experience impairments including a hyper-startle response, hypervigilance, isolation, and irritability. During a November 2020 VA psychiatric examination report, the examiner indicated that the Veteran’s PTSD disability resulted in occupational and social impairment with reduced relatability and productivity (the criteria for a 50 percent rating). At that time, it was noted that the Veteran continued to live with his daughter and remained in a relationship with his girlfriend. The Veteran further reported that since he returned from Vietnam in 1968, he continued to have increased irritability and noted that his girlfriend and his daughter both complain about his “snappiness.” The Veteran also endorsed symptoms of anger, increased startled response, and suspicious hypervigilance. It was further noted that the Veteran had little “patience with people” and indicated that he would not be able to interact with customers. According to the Veteran, customers had complained to his grandson (i.e. e., the manager of the business) that he was being snappy and inpatient. The Veteran indicated that his behavior negatively impacted his grandson’s business and prevented steady customers from returning to the supply store. Based on this information, the examiner opined that the Veteran’s psychiatric impairment “negatively interfere with any occupational and employment activities at this time.” The Board finds that, for the entire rating period on appeal, the Veteran’s PTSD does not more nearly approximate the criteria for a 100 percent rating for any period on appeal. The Board finds that the Veteran’s PTSD symptoms do not more nearly approximate total social impairment and do not contemplate the symptomology considered under the 100 percent rating criteria. In reaching this conclusion regarding the degree of occupational and social impairment, the Board has considered all the Veteran’s psychiatric symptoms and impairment, whether or not the symptom is specifically listed in the rating criteria, considering such symptoms as “like or similar to” the symptoms in the rating criteria. See Mauerhan, 16 Vet. App. at 442 (stating that the symptoms listed in VA’s general rating formula for mental disorders is 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 rating, and that, without those examples, differentiating between rating evaluations would be extremely ambiguous). With this in mind, the evidence shows that the Veteran’s overall PTSD picture is already adequately contemplated by the 70 percent rating. The Veteran does suffer from disturbance of motivation and mood (depression and anxiety), and sleep impairment, but these symptoms are specifically contemplated in the 30, 50, and 70 percent rating criteria. The same is true with the Veteran’s suicidal and homicidal ideation and impaired impulse control (such as unprovoked irritability with periods of violence), which are also symptoms specifically contemplated under the 70 percent PTSD disability rating. Notably, none of the private and VA psychiatric examinations of records show that the Veteran’s PTSD has resulted in total social and occupational impairment. See e. g., private psychiatric evaluation from Dr. Lazarus (noting that the Veteran’s PTSD was “moderate” with deficiencies in most areas). Instead, the evidence shows that the Veteran continues to go to what he describes as “work” at the appliance store. See e. g., November 2020 VA examination report. As noted by Dr. Lazarus, the Veteran’s description suggests that he merely goes to the store that he once operated, but is now managed by his grandson. During an April 2019 VA mental health note, the Veteran reported spending “a lot of time” at his grandson’s store where he “socializes with friends and family.” The Veteran further indicated that he occasionally did some work for his grandson at the store. The Board finds that, although the Veteran is found to experience some impairment in social and occupational settings, it appears that he continues to go participate (either socially and/or occupational) at the appliance store, which demonstrates at least some capacity to deal with tasks, co-workers, and customer. The Veteran has also been able to maintain social and familiar relationship with his girlfriend, his children, and his grandchildren. For these reasons, the Board finds that the evidence of record does not demonstrate total social impairment and do not more nearly approximate the symptoms contemplate under the 100 percent rating criteria. Accordingly, the Board finds that a rating in excess of 70 percent rating for PTSD is not warranted. TDIU—Laws and Analysis 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 totally disabled. See 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Total disability ratings for compensation may be assigned, in circumstances where the schedular 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Board finds that the Veteran has met the schedular criteria for a TDIU at all times relevant to the appeal period. See October 2020 rating code sheet (Veteran is in receipt of a combined 90 percent rating since June 6, 2011). However, for the reasons outlined below, the Board finds that the evidence of record demonstrates that the Veteran’s service-connected disabilities, alone, do not preclude his ability to follow a substantially gainful occupation. As noted in the Board’s October 2020 remand, it is unclear as to whether the Veteran is employed, and if so, in what capacity. See April 2018 private psychiatric evaluation (noting that the Veteran still goes to work at his appliance store, although limited in his duties). See also April 2018 Board Hearing Transcript (noting that the appliance business remains in the Veteran’s name); see also November 2020 VA examination report (noting that the Veteran retired in 2015). In a November 2019 VA treatment record, the Veteran indicated that he had retired, but occasionally did some repair work at his grandson’s appliance shop. An April 2019 VA mental health note noted that the Veteran spent “a lot of time” at his grandson’s store where he socialized with friends and family and occasionally did some work for his grandson. In April 2018, the Veteran was sent a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, in connection with his TDIU claim. The Veteran was afforded another opportunity to submit a VA Form 21-8940 in October 2020. To date, he has not completed and returned the form. The Board notes that the VA Form 21-8940 requests information regarding the Veteran’s occupational and educational history, which is necessary to determine entitlement to TDIU. Because the Veteran did not provide evidence documenting or reporting his annual income, and did not return a completed VA Form 21-8940, VA has been unable to determine his actual annual earned income and the date that the Veteran was last employed. Thus, the record does not contain the evidence necessary to determine whether the Veteran’s earned annual income exceeds the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person, which is for consideration when determining whether employment is marginal. See 38 C.F.R. § 4.16 (a). The Veteran has not otherwise submitted evidence indicating his approximate annual income during the appeal period. The lack of completion of a VA Form 21-8940 also precludes further development with respect to dates of employment, salary, and reasons for termination. The claimant bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a); see Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Based on detailed review of the foregoing, the Board finds that the Veteran’s disabilities do not preclude him from all forms of substantially gainful employment consistent with his educational background and occupational experience. As such, the preponderance of the evidence at this time is against the claim of entitlement to a TDIU. The Veteran and his attorney are advised that if the Veteran wishes to submit a future claim for a TDIU, he should submit the claim on the form required by VA. 38 C.F.R. § 3.155. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.