Citation Nr: 21009170 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 14-19 547 DATE: February 19, 2021 ORDER Entitlement to a disability rating greater than 50 percent, prior to February 10, 2015, and 70 percent thereafter, for service-connected posttraumatic stress disorder (PTSD), is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to February 10, 2015, is denied. FINDINGS OF FACT 1. Prior to February 10, 2015, the Veteran’s psychiatric disorder was manifested by occupational and social impairment with reduced reliability and productivity, but the severity, frequency, and duration of his symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From August 8, 2019, the Veteran’s psychiatric disorder was manifested by occupational and social impairment with deficiencies in most areas, but the severity, frequency, and duration of his symptoms did not more closely approximate total occupational and social impairment. 3. Prior to February 10, 2015, the evidence of record demonstrates that the Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent prior to February 10, 2015, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130 Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent since February 10, 2015, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130 Diagnostic Code 9411. 3. Prior to February 10, 2015, the criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b) (1), 4.16(a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1965 to September 1968, with service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a rating decision issued in November 2012 by the Department of Veteran Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board previously remanded the appeal in December 2015 and May 2019. The various remand directives (to include soliciting a formal claim for a TDIU, obtaining VA treatment records, and scheduling the Veteran for a new VA examination from the December 2015 remand; and referring the case to the Director, Compensation Service and readjudicating the case from the May 2019 remand) have been completed. The Board finds substantial compliance with its remand instructions such that the case may move forward. 1. Entitlement to a disability rating greater than 50 percent, prior to February 10, 2015, and 70 percent thereafter, for service-connected PTSD. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation should be applied to the veteran’s disability, 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. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will analyze the evidence of record to determine the Veteran’s current levels of disability. In doing so, the Board first notes that it has reviewed all of the evidence in the Veteran’s claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. The Veteran seeks higher ratings for his service-connected PTSD. The disability is currently rated as 50 percent, prior to February 10, 2015, and 70 percent thereafter. The Veteran’s service-connected psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders. Relevant to the issue on appeal, under the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty understanding complex commands, impairment of short and long term memory, 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 A 70 percent disability rating is assigned 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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. Id. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. A. Prior to February 10, 2015. Turning to the relevant evidence of record for this period, the evidence does not indicate that the Veteran’s PTSD and its resulting symptoms caused occupational and social impairment with deficiencies in most areas. The Veteran underwent a VA examination in October 2012 to determine the current severity of his service-connected PTSD. The VA examiner assigned a level of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran expressed that he recently separated from his wife of about forty (40) years. The Veteran has one daughter with whom the Veteran stated that he has a “fantastic relationship,” and a granddaughter that he “adores.” He also expressed difficulty getting along with others and struggling with angry and irritability. The Veteran also reported that he recently retired in June 2010, after a career in the transportation sector, as a safety manager and director. The examiner noted that the Veteran expressed the symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. A review of the Veteran’s VA treatment records from this period shows similar symptoms, such that an extended recitation of them would not provide additional context or information to the Board’s decision. After considering all the evidence, the Board finds that, throughout the relevant rating period prior to February 10, 2015, the Veteran’s service-connected psychiatric disability does not meet the criteria for a 70 percent or higher rating. During the period from prior to February 10, 2015, the Veteran’s service-connected psychiatric disability manifested in symptoms such as depressed mood, anxiety, chronic sleep impairment, irritability, mild memory loss, and disturbances of motivation and mood. Turning to social impairment, the Veteran reported separating from his wife of 40 years but endorsed having good relationships with his daughter and granddaughter. The Veteran stated that he has issues getting along with others as well. With regards to occupational impairment, the Veteran did not report any occupational impairment at his October 2012 VA examination. The only thing the Veteran did report is that he recently retired in 2010. A statement from his spouse, however, stated that the Veteran had issues at work and could not hold a job for more than three or four years. The Board further finds that, at no time during the relevant rating prior to February 10, 2015, did the Veteran’s service-connected psychiatric disability more closely approximate the criteria for a 70 percent rating in terms of severity, frequency, and duration. Specifically, prior to February 10, 2015, the Veteran exhibited occupational and social impairment with reduced reliability and productivity due to his service-connected psychiatric disability. Furthermore, he did not demonstrate symptoms consistent with many of those specifically listed under the 70 percent ratings in terms of severity, frequency, and duration such that the criteria for a 70 percent rating was more closely approximated. He did not exhibit suicidal ideation; obsessional rituals which interfere with routine activities; speech that is 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); and inability to establish and maintain effective relationships. 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 70 percent rating. In summary, the Board finds that, for the service-connected psychiatric disability, a rating in excess of 50 percent is not warranted at any time during the period, prior to February 10, 2015. B. From February 10, 2015. Turning to the relevant evidence of record, the Veteran’s medical treatment records do not indicate that the Veteran’s PTSD causes a total impairment of his social and occupational functioning. The Veteran submitted the March 2015 questionnaire completed by private physician, E. Brown, M.D. Dr. Brown found the Veteran’s abilities to related to other people, respond to appropriately to supervision and coworkers, and work pressures to be severe. The private physician did not find that the Veteran was totally incapacitated in any area. In April 2016, the Veteran was afforded a VA PTSD examination. The VA examiner found that a mental condition has been formally diagnosed, and there is no indication in the record made available, the clinical interview in the current exam, the psychological test results, that symptoms of mental disorder causes clinically significant impairment in current occupational and social functioning. The Veteran reported being married for 45 years but having been separated from his wife for the past three years, which he blamed on his attitude, anxiety, and his reclusive nature. The Veteran expressed that him and his spouse were fine, despite their separation. The Veteran reported being retired from work since 2009 after working 25 or 30 years as safety director for a trucking company. The Veteran stated that he was laid off and decided to retire because of his age. Upon examination, the Veteran was well-groomed. He was alert and fully oriented. Thought content and process were noted to be unremarkable. Hallucinations and delusions were denied. Suicidal and homicidal ideation, intent, and planning were denied. There was no observable impairment in attention, concentration, or memory. The VA examiner was unable to assign symptoms to the Veteran’s PTSD due to the lack of reliable indication that the symptoms of mental disorder the claimant currently experiences cause clinically significant social and occupational impairment. The Veteran next underwent a VA examination in December 2018 to determine the severity of the Veteran’s PTSD. The VA examiner assigned a level of occupational and social impairment with deficiencies in most areas. The Veteran reported the continued separation from his wife since 2016. The Veteran reported living with his brother. He also endorsed not engaging in social activities or having friends. The Veteran occupational status remained unchanged from the report in the April 2016 VA examination. The VA examiner noted that the Veteran reported the symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, inability to establish and maintain effective relationships, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work like setting. The April 2019 VA examination found the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas. The Veteran reported that he recently divorced his wife. He endorsed having a good relationship with his daughter, and the lack of any close friends. The Veteran expressed the dislike for social activities and prefers to be alone. The Veteran reported that he was laid off in 2009. He reported that he did not get into trouble at work or had difficulties with irritability. The Veteran emphasized that he never missed work assignments due to depression, expect for the flu. Moreover, the Veteran stated that work helped his mental condition because work kept him busy. The VA examiner noted that the Veteran reported the symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, inability to establish and maintain effective relationships, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work like setting. After considering all the evidence, the Board finds that, throughout the relevant rating period, the Veteran’s service-connected psychiatric disability does not meet the criteria for a 100 percent rating. During that period the Veteran’s service-connected psychiatric disability manifested in symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, inability to establish and maintain effective relationships, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work like setting. Turning to occupational impairment, the Veteran reported retiring in 2009 after being laid off, after 25-30 years a safety director. The Veteran denied any complications at work due to his PTSD. Moreover, the Veteran stated that working helped his mental condition and his condition worsen once he retired. With regards to social impairment, the Veteran endorsed having good relationships with his daughter and granddaughter. During this period, the Veteran divorced from his wife of over 40 years. He also stated that he did not have any close friends or participate in social activities. While the Board recognizes that the Veteran suffers from a level of social impairment due to his PTSD, there is no evidence that he is totally impaired with regards to social functioning. The Board finds the Veteran’s reported symptomology coupled with his levels of social and occupational impairment are consistent with the criteria for a 70 percent rating under Diagnostic Code 9411. The Board further finds that, at no time during the relevant rating period, did the Veteran’s service-connected psychiatric disability more closely approximate the criteria for a 100 percent rating in terms of severity, frequency, and duration. Specifically, during that period, the Veteran had deficiencies in family relationships, and mood, but he did not have total occupational and social impairment due to her service-connected psychiatric disability. Furthermore, he did not demonstrate symptoms consistent with many of those specifically listed under the 100 percent ratings in terms of severity, frequency, and duration such that the criteria for a 100 percent rating was more closely approximated. He did not exhibit obsessive or ritualistic behavior that interfere with routine activities, 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, and own occupation or own name. In summary, the Board finds that, for the service-connected psychiatric disability, a rating of 100 percent is not warranted at any time during the relevant rating period. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected psychiatric disability, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016), 38 Vet. App. 366, 369-70 (2017).  2. Entitlement to a TDIU, prior to February 10, 2015. VA will grant a TDIU when the evidence shows that the veteran is precluded, because of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in a TDIU claim 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). A total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. Regulations provide that if a veteran is service connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of whether a veteran satisfies the above percentage evaluations. 38 C.F.R. § 4.16(b). In such a case, the Board may not assign a TDIU without ensuring that the claim is referred to VA’s Director of Compensation Service (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. For this period, the Veteran had four service-connected disabilities (PTSD, diabetes, tinnitus, and hearing loss), together evaluated as 60 percent disabling, which does not establish eligibility for a schedular TDIU rating. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, “[i]t is the established policy of the Department of Veterans Affairs 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.” 38 C.F.R. § 4.16(b) (emphasis added). Thus, the question for the Board is whether the Veteran’s service-connected disabilities prevent the Veteran from following a substantially gainful occupation. In this case, the Veteran has not presented evidence that his service-connected disabilities preclude him gainful employment. The Veteran’s VA Form 21-8940 (Veteran’s Application for Increased Compensation based on Unemployability) provided that the Veteran was last employed by Quick Delivery Service from August 2004 to August 2009. The Veteran indicated that he did not lose any time from work due to illness. The Veteran’s highest level of education completed is high school. The VA examinations related to the Veteran’s bilateral hearing loss and tinnitus, prior to February 10, 2015, found that the Veteran’s hearing impairments did impact his occupational activities. The Veteran cited that he must play his television at full volume to hear it. The October 2012 VA examination assigned a level of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran did not make any reports of occupational functioning impairments during the examination. The Veteran’s then spouse, however, submitted the October 2012 statement indicating that the Veteran had difficulty maintaining employment due to depression and lack of concentration. The October 2020 administrative review memorandum provided guidance to whether a TDIU is warranted prior to February 10, 2015. The report provides that the Veteran was not precluded him gainful employment due to his service-connected disabilities. The report cited that the Veteran retired in 2010, after being laid off. The Veteran reported working in transportation from a range of 25 to 40 years, which indicates a long period of continued employment. The medical records were found not to support the contention that the Veteran’s service-connected disabilities precluded his ability to secure or follow a substantially gainful occupation, nor did the medical record show symptoms severe enough to prevent the Veteran from securing or following substantially gainful employment. The December 2020 Advisory Opinion from the Director also held that the Veteran’s service-connected disabilities, or a combination of the effects of those disabilities support an exceptional situation that prevent gainful employment prior to February 10, 2015. The Director also noted that the Veteran’s PTSD symptomology did not raise to a severity to warrant a TDIU. After reviewing the evidence, the Board agrees with the Director. The record prior to February 10, 2015, does not support that the Veteran was precluded from employment due to his service-connected disabilities. There is no evidence that the Veteran’s service-connected diabetes, hearing loss, and tinnitus produced symptoms that impacted his employment. Instead, the Veteran has consistently maintained that his PTSD and its symptoms played the biggest role in his occupational outlook. Turning to those symptoms, the Board finds that the Veteran’s PTSD did not preclude his economic or noneconomic ability to secure or follow a substantially gainful occupation. To the economic factor, the records show that the Veteran worked for many decades in the transportation industry, and that he was earning more than a marginal income until being laid off in either 2009 or 2010. As to the noneconomic factors, as analyzed above, the Veteran’s PTSD certainly affected his ability to interact with others and to handle workplace stresses. However, the Veteran’s 50 percent rating in and of itself acknowledges this fact, as it is assigned for occupational and social impairment with reduced reliability and productivity. The evidence does not demonstrate that the Veteran’s PTSD would have precluded his ability to secure or follow an occupation commensurate with his background, as the Veteran’s symptoms during this period were not as severe as later noted. In sum, the Board finds that the Veteran’s bilateral hearing loss, tinnitus, and PTSD neither individually nor combined present such an unusual disability picture to warrant granting TDIU on an extraschedular basis. The preponderance of the evidence is against the Veteran’s claim, and there is no doubt to resolve. As such, the Board must deny entitlement to a TDIU, prior to February 10, 2015. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins, 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.