Citation Nr: 21009190 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 13-31 742 DATE: February 19, 2021 ORDER Entitlement to a staged initial rating greater than 50 percent for posttraumatic stress disorder (PTSD) from December 28, 2012 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD did not result in occupational and social impairment with deficiencies in most areas. 2. In a November 2019 letter, the Veteran was asked to provide information necessary to adjudicate a claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940; more than a year has lapsed and he has not submitted the requested evidence and information. CONCLUSIONS OF LAW 1. The criteria for a staged initial rating greater than 50 percent for PTSD from December 28, 2012 have not been met. See 38 U.S.C. § 1115; 38 C.F.R. § 4.130, DC 9411. 2. By failing to submit requested information and/or forms for critical evidence needed to properly adjudicate a claim of TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 5107, 7105(d)(5) (2012); 38 C.F.R. § 3.158(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to June 2005, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD, and assigned staged initial ratings of 70 percent from January 31, 2011, and 30 percent from December 28, 2012. A June 2015 Board decision denied entitlement to a staged initial rating in excess of 70 percent for PTSD prior to December 28, 2012 and remanded the matter of entitlement to a staged initial rating in excess of 30 percent from December 28, 2012 for further development. In a November 2015 rating decision, the RO assigned a 50 percent staged initial rating for the Veteran’s PTSD effective from December 28, 2012. A November 2019 Board decision remanded the matter of entitlement to a staged initial rating in excess of 50 percent from December 28, 2012 and determined that the issue of entitlement to a TDIU was before the Board. The Board remanded for outstanding treatment records, a VA examination (VAX) to address the severity of the service-connected PTSD, and to provide the Veteran with a VA form 21-8940. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). INCREASED RATING As in initial matter, the Veteran was scheduled for a VAX for his service-connected PTSD in compliance with the November 2019 Board remand. However, he did not report for the scheduled VAX. An January 2020 invoice, confirms he was a no show for his appointment. The schedule VAX was necessary to assess his PTSD. The action to be taken in instances where the veteran fails to report for a VA examination depends on if the examination was scheduled in connection with a service connection/initial rating claim or a claim for an increase. A service connection claim or an initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655 (b), so where the veteran fails to report for such an examination, the case shall be rated on the evidence of record. See Fenderson v. West, 12 Vet. App. 119, 125 (1999); see also Turk v. Peake, 21 Vet. App. 565, 568-70. In contrast, where the veteran fails to report for an examination scheduled in connection with a claim for an increase or any other original claim, the claim shall be denied. See 38 C.F.R. § 3.655 (b). Accordingly, the claim will be adjudicated based on the existing evidence associated with the claims file. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the Veteran to submit to a VAX if he is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. His failure to attend the VAX without a showing of good cause constitutes a failure to cooperate in the development of his initial rating claim on appeal. 1. Entitlement to a staged initial rating greater than 50 percent for PTSD from December 28, 2012 is denied. The Veteran contends that he is entitled to a higher rating for his service-connected PTSD. 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. See 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under Diagnostic Code 9411, a 50 percent evaluation requires 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; and, difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is prescribed when there is evidence of 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. See Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). VA treatment records from December 2012 show that the Veteran was alert and casually dressed. Insight was fair. Coping skills were good. Thoughts were logical and goal directed. He worked as an employment specialist. His relationship was going well. His two children from his first marriage were in contact with him. There was no history of suicide attempts. VA treatment records from January 2013 show that the Veteran was alert, oriented, casually dressed. Thought process was logical. Speech, eye contact, and memory were within normal limits (WNL). He denied suicidal and homicidal ideation. Insight and judgment were good. Thought content focused on treatment. VA treatment records from March 2013, May 2013, November 2013, and December 2013 show that the Veteran was alert and casually dressed. Insight was fair. Thought process was logical. He denied suicidal and homicidal ideation. VA treatment records from February 2014, also show that he denied suicidal and homicidal ideation. VA treatment records from May 2014, show that the Veteran was alert, attentive, and appropriately dressed. Speech was WNL. No thought disorder, hallucinations, or delusions were present. He denied suicidal and homicidal ideation. However, he also reported fleeting suicidal ideation. He reported spending his days talking to other veterans. He reported volunteering at the schools one to two times a week and loved mentoring children. He reported enjoying fishing and talking to his kids regularly. He also reported that he keeps busy maintaining the house and yard. VA treatment records from June 2014, show that the Veteran was alert, oriented and appropriately dressed. Speech was WNL. No thought disorder, hallucinations, or delusions were present. Insight and judgment were fair. He denied suicidal and homicidal ideation. VA treatment records from August 2015, show that the Veteran enjoyed woodworking, fishing, and painting. He reported being able to complete daily tasks of living and all household chores. Records from June 2015 show that the Veteran enjoyed working in his shop in the backyard. VA treatment records from July 2015, show that the Veteran was seeing visions of friends who died, which would happen during the day and in the morning. He denied auditory hallucinations. He reported passive suicidal ideation without intent or plan. He did not appear to be at imminent risk of harm to himself or others. VA treatment records from August 2015, show that the Veteran reported that things were slowly getting better. His wife and him were fishing together. He was sleeping better and no longer afraid to sleep. His visual hallucinations decreased. He denied suicidal and homicidal ideation. His wife was very supportive of him. VA treatment records from September 2015, show that the Veteran was casually dressed, groomed, oriented, calm, cooperative, and polite. He maintained good eye contact and speech was WNL. His immediate thoughts were appropriate. Thought process was coherent, logical, and goal directed. He denied auditory and visual hallucinations. No paranoia or delusions were present. He denied suicidal or homicidal ideation. Insight and judgment were fair. Impulse control was intact. The Veteran was afforded a VAX October 2015. Occupational and social impairment with reduced reliability and productivity best summarized his level of impairment. The Veteran was diagnosed with both PTSD and unspecified depressive disorder. The VA examiner determined that it was not possible to differentiate what symptoms were attributable to each diagnosis. Symptoms for VA rating purposes include depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work like setting. The Veteran denied delusions, hallucinations, suicidal ideation, and homicidal ideation. Insight and judgment were adequate. His thought content was coherent, logical, and goal directed. He was oriented to all spheres. His speech was coherent with normal rate and volume. He was appropriately groomed and had appropriate hygiene. He was cooperative and maintained appropriate eye contact. Regarding the Veteran’s work history, he reported working at Family Dollar and Kmart in 2011. During the interim of the VAX, he worked at Texas Veterans Workforce Commission. The VA examiner noted inconsistent statements given regarding his resignation. In one chart, he reported that he voluntarily resigned from this job due to irritability or feeling overwhelmed by his job. In a different chart, he reported that his girlfriend had a sexual harassment complaint against his boss. The boss in turn accused him of abusing his power at the Texas Work Force Commission to help her file a complaint, which led to his voluntary resignation. Currently, he works as a school bus driver. The Veteran reported one close friend. He has been divorced twice and is currently on his third marriage since 2012. He has two biological children and two stepchildren and his relationship with them ranges from fair to poor. In 2011 his 24-year-old and 22-year-old children were living with him. He reported a good relationship with his mother and father and a fair to good relationship with his two brothers. VA treatment records from November 2015, show that the Veteran was casually dressed, groomed, calm, cooperative, and polite. He maintained good eye contact. Speech was coherent and relevant. Thought process was coherent, logical, and goal directed. He denied auditory and visual hallucinations. He denied suicidal and homicidal ideation. Insight and judgment were fair. Impulse control was intact. VA treatment records from January 2016, show that the Veteran was casually dressed, well groomed, calm, cooperative, and polite. He maintained good eye contact. Speech was WNL. Thought process was coherent, logical, and goal directed. He denied auditory and visual hallucinations. No paranoia or delusional ideations were expressed. He denied suicidal and homicidal ideation. Insight and judgment were fair. VA treatment records from March 2016, show that the Veteran was casually dressed, cooperative, and polite. Speech was WNL. Thoughts were appropriate. No paranoia or delusions were present. Insight and judgement were fair. Impulse control was intact. He denied suicidal and homicidal ideation. His home life was stable. He was helping his wife with a t-shirt business and planned to meet with friends for a crawfish boil. He had contact with his ex-girlfriend’s son and planned to meet for the anniversary of her death. VA treatment records from June 2019, show that the Veteran was still employed as a school bus driver. He was working out again and watching what he eats. VA treatment records from November 2019 noted no recent hospitalizations or change in his mental status. Based on the above, the Board finds that the frequency, severity, and duration of the Veteran’s symptoms did not result in the level of impairment required for a disability rating of 70 percent. The severity, frequency, and duration of the Veteran’s symptoms more closely approximates the symptoms associated with a 50 percent rating, which is less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. Looking at the overall disability picture, the Veteran was very high functioning with very few difficulties reported in his daily activities. His symptoms were inconsistent with a 70 percent rating. He reported going to the gym, volunteering in the school district, and mentoring children. He reported enjoying time with other veterans. He also reported enjoying fishing, woodworking, painting, and working in his shop in the backyard. He performs his household chores and does yard work. He maintained multiple good, positive, and fulfilling relationships. He has attended events with family and friends. He’s helped his wife with her t-shirt making business. He able to maintain employment and is currently working as a bus driver. The Board is aware of the notations in the record of fleeting suicidal ideation. However, the Board must consider the frequency, severity, and duration of the Veteran’s symptoms. This notation was not representative of the overall disability picture rather this was an outliner. VA treatment records show that the Veteran has consistently denied suicidal ideation throughout the appeal period. Recognition is also given to the fact that the Veteran reported visual hallucinations which can support a 100 percent rating. However, as noted above the Board consideration must be given to the frequency, severity, and duration of the Veteran’s symptoms. Like the report of suicidal ideation, the visual hallucination was an outlier and not representative of the overall disability picture. VA treatment records show that the Veteran has consistently denied visual and auditory hallucinations. The condition is not shown to be persistent to warrant a 100 percent rating. The VA examiner noted that the Veteran had difficulty in adapting to stressful circumstances, which is identified as symptoms of a 70 percent rating. The Board must consider the frequency, severity, and duration of the Veteran’s symptoms. Here, the evidence of record indicates that the Veteran has been able to adapt to stressful circumstances in terms of his occupation and social relationships. The Veteran has been able to adjust to stressful situations thereby maintaining his employment as a school bus driver and maintaining relationships with his wife, children, and other family members. This symptom is not so severe as to warrant a 70 percent rating. All told, for this period, the preponderance of the evidence of record shows that the Veteran’s PTSD has not more closely approximated occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, thinking, or mood. The Veteran did not display symptoms such as 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; spatial disorientation; neglect of personal appearance and hygiene. Rather, the Veteran’s judgment and insight were unimpaired, and his thought process was normal. He was awake, alert, and oriented to all spheres. His speech was normal. He was adequately groomed and dressed. He maintained relationships with his wife, children, and other relatives. He has been able to maintain employment as a school bus driver. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, the preponderance of the evidence is against a finding that a 70 percent rating is warranted. 2. Entitlement to a TDIU is denied. As the Board noted in the November 2019 remand, the Veteran contends that his service-connected disabilities render him unemployable. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes 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 service-connected 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. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). The Veteran meets the schedular requirements under 4.16 (a) for the entire appeal period. From January 31, 2011 to December 27, 2012 the Veteran had a combined disability rating of 90 percent that was the result of two or more service-connected disabilities with one disability rated at 40 percent or more. He was rated at 70 percent for PTSD, 10 percent for lumbosacral strain with interverbal disc syndrome (IVDS), 10 percent for cervical strain with degenerative disc disease (DDD), 10 percent for left shoulder impingement, 10 percent for right shoulder impingement, 10 percent for right elbow lateral epicondylitis, 10 percent for left elbow lateral epicondylitis, 10 percent for tinnitus, 0 percent for right knee degenerative changes, 0 percent left knee for degenerative changes, 0 percent for right index finger lacerations, 0 percent for right great toe with hallux valgus, 0 percent for gastroesophageal reflux disease (GERD), and 0 percent laparoscopic scar. From December 28, 2012 to February 25, 2013, the Veteran had a combined disability rating of 80 percent that was the result of two or more service-connected disabilities with one disability rated at 40 percent or more. He was rated at 50 percent for PTSD, 10 percent for IVDS, 10 percent for cervical strain DDD, 10 percent for left shoulder impingement, 10 percent for right shoulder, 10 percent for right elbow, 10 percent for left elbow, 10 percent for tinnitus, 0 percent for right knee degenerative changes, 0 percent left knee for degenerative changes, 0 percent for right index finger lacerations, 0 percent for right great toe with hallux valgus, 0 percent for GERD, and 0 percent laparoscopic scar. Since February 26, 2013, the Veteran had a combined disability rating of 100 percent schedular rating that was the result of two or more service-connected disabilities with one disability rated at 40 percent or more. He was rated at 50 percent for PTSD, 40 percent for IVDS, 30 percent for cervical strain DDD, 20 percent for left shoulder impingement, 20 percent for right shoulder, 20 percent for radiculopathy of the left lower extremity involving the sciatic nerve, 10 percent for right elbow, 10 percent for left elbow, 10 percent for tinnitus, 10 percent for right knee degenerative changes, 10 percent left knee for degenerative changes, 0 percent for right index finger lacerations, 0 percent for right great toe with hallux valgus, 0 percent for GERD, and 0 percent laparoscopic scar. With respect to the Veteran's education and work experience, while the Veteran did not complete and return a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) provided to him in November 2019 in accordance with the Board remand instructions. Since VA does not have a completed VA Form 21-8940, the Veteran's work history cannot be verified. The Board finds that entitlement to a TDIU is not warranted. When evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). More than a year has lapsed since November 2019 and the Veteran has not submitted the requested evidence and information. The Veteran has not provided the information or VA forms necessary to adjudicate a claim of entitlement to a TDIU rating. Although the record contains some information regarding his employment history, there is insufficient information necessary to adjudicate a claim for a TDIU rating during the relevant appeal period. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of he did not provide the requested information, the Veteran has abandoned his claim. As such, the Board finds that the appeal concerning entitlement to a TDIU must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, 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.