Citation Nr: 21009467 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-43 262 DATE: February 22, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to August 5, 2019, is denied. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD), from August 5, 2019, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The overall evidentiary record shows that the severity of the Veteran’s psychiatric disability most closely approximated the criteria for a 50 percent disability evaluation prior to August 5, 2019. 2. The overall evidentiary record shows that the severity of the Veteran’s psychiatric disability most closely approximated the criteria for a 70 percent disability evaluation from August 5, 2019. 3. Veteran was unable to obtain gainful employment due to his service-connected posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent for posttraumatic stress disorder, prior to August 5, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder, from August 5, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for entitlement to a total disability rating due to individual unemployability (TDIU), have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2000 to January 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 Rating Decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in August 2019. A transcript of that hearing is of record. In a November 2019 Board decision, the case was remanded back to the Agency of Original Jurisdiction (AOJ) for further development. That development having been completed to the extent possible, the matter is again before the Board for further appellate review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. For VA purposes, when there is an approximate balance in the evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue is given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The U.S. Court of Appeals for Veterans Claims (Court) held that a claimant is only required to demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court further pointed out that, “to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder, prior to August 5, 2019 The Veteran contends he is entitled to a rating in excess of 50 percent prior to August 5, 2019 due to the symptoms from his PTSD. The Veteran referenced mental health records at the Beckley, WV VAMC that he believes will support a 70 percent disability evaluation. See January 2016 Notice of Disagreement. The Veteran’s representative argues that the Veteran’s symptoms between June 2016 and August 2019 more closely approximate a 70 percent disability rating. See January 2021 Appellate Brief. The Veteran was initially granted service connection for PTSD in an unappealed September 2012 rating decision. He presented a claim for an increased rating in April 2014, and the AOJ increased the assigned 30 percent rating to 50 percent, effective April 16, 2014. The Veteran submitted another claim for an increased rating in June 2015. The AOJ increased the assigned 50 percent rating to 70 percent, effective August 5, 2019. The Veteran disagrees with the effective date of this second increase. Under Diagnostic Code 9411, a 50 percent rating is warranted when there is 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. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). 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). Following a complete review of the appellate record, the Board finds that the Veteran’s psychiatric symptoms have not caused the level of impairment required for a disability rating of 70 percent or higher during the period prior to August 5, 2019. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. Evidence of record does not show deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The August 2015 VA examiner noted symptoms of anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran enjoys his job working at the VA, is rated fully successful, and gets along with coworkers. The examiner noted occupational and social impairment with reduced reliability and productivity. The Veteran urged the Board to look at the Beckley VA treatment records. Upon a thorough review, these records do not support a disability rating higher than 50 percent. The April 2016 treatment record notes the Veteran has less aggravation, no longer experiencing stress related to an ex-girlfriend, and has no recent problematic anger episodes. The June 2016 treatment record notes the Veteran avoided any problematic anger outburst after a coworker stepped on his tools without apologizing. The July 2016 treatment record notes the past few months have been the best period for the Veteran as far as mood and functioning. It must be noted that throughout the Veteran’s VA treatment records, he was assessed as being alert and oriented to person, place, time, and situation. The Veteran presented with no evidence of a thought disorder, and no suicidal or homicidal ideations. In March 2017, the Veteran was observed with good grooming and hygiene, thought process did not appear delusional or psychotic, speech was clear, concise, and goal directed. The Veteran was slightly anxious with a congruent affect. The sole entry noting a visual and/or auditory hallucination was in April 2018. This did not appear to be a persistent symptom, because the Veteran experienced nightmares, but denied any hallucinations at the previous VA treatment visit and the subsequent treatment visit later that same month. In assessing the Veteran’s symptomatology in toto as to this portion of the period on appeal, the Board finds that none of the findings rendered by previous VA examiners, nor any other relevant evidence of record informs the Board of a symptomatology that warrants a rating in excess of what has been contemplated and assigned. The evidence shows that the Veteran did not show symptoms such as 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; suicidal ideation; or, neglect of personal appearance and hygiene to name a few of the criteria. For the reasons stated above, the Board finds that the weight of the evidence establishes that the Veteran’s PTSD has most closely approximated the 50 percent criteria for this period on appeal, and his appeal seeking a higher disability rating is denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder, from August 5, 2019 In an August 2020 rating decision, the Regional Office granted an increased rating for PTSD and assigned a 70 percent disability rating, effective from August 5, 2019. As this was not a full grant of the benefit sought on appeal, the Board will also address whether a higher rating is warranted for the period after August 5, 2019. Following a complete review of the appellate record, the Board finds that the Veteran’s psychiatric symptoms have not caused the level of impairment required for a disability rating of 100 percent during this period. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. Evidence of record does not show total occupational and social impairment. The February 2020 VA examiner noted symptoms such as depressed mood, anxiety, panic attacks more than once per week, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining relationships, adapting to stressful situations, and obsessional rituals which interfere with routine activities. The evidence shows that the Veteran did not show symptoms such 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. For the reasons stated above, the Board finds that the weight of the evidence establishes that the Veteran’s PTSD has most closely approximated the 70 percent criteria for period from August 5, 2019 and any claim seeking a higher disability rating from August 5, 2019 must be denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a total disability rating due to individual unemployability (TDIU) The claim for TDIU has been reasonably raised in the course of this appeal. The Veteran indicated during the August 2019 Board hearing that his PTSD prevents him from obtaining and maintaining gainful employment. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (central inquiry in TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability). “Substantially gainful employment” is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Further, in evaluating a Veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The word “substantially” suggests an intent to impart flexibility into a determination of a Veteran’s overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361. From August 5, 2019, service connection was in effect for PTSD at 70 percent. As the Veteran has a combined rating of no less than 70 percent, with service-connected PTSD evaluated as 70 percent disabling, he meets the objective criteria under 38 C.F.R. § 4.16 for consideration of a TDIU. Prior to August 5, 2019, the Veteran did not meet the schedular criteria. The Veteran contends that obsessive rituals of checking on his house interfere with his ability to be on the job. See Hearing transcript p. 7. He contends that this symptom, along with stress, anxiety, and agoraphobia caused him to lose several jobs. At the February 2020 VA examination, the Veteran reported that he has lost multiple jobs because of conflict with authority, conflict with tenants, panic attacks that kept him from working, quitting when he was told he couldn't leave on-time to care for dogs or take medication, and physical altercations. He stated that he lost the job as a pipefitter after two years, and cannot talk further about that because of pending litigation. He once punched a tenant at work, and the police were called. He reportedly tried seven other jobs since then, including maintenance, detailing, and general labor. Many of these jobs ended because the Veteran became angry, or experienced a panic attach that required him to separate himself for hours at a time. At the examination, the Veteran has reportedly not worked since late 2019. The VA treatment record of September 2019 indicates the Veteran’s job has ended, he has visited the unemployment office, and has not had success in locating new employment. Upon review of the foregoing evidence, the Board finds that the Veteran’s PTSD severely limits the occupational work the Veteran can perform. Not only would the Veteran not be able to hold a position that required interaction with others, he further would be limited in sedentary work or isolated labor, as he will frequently would arrive late or leave early due to the extreme anxiety regarding checking the security of his house. Further, the Veteran’s PTSD would make it difficult for him to obtain gainful employment in his past occupations, as his previous occupations often led to verbal and physical confrontations with customers and authority figures. Accordingly, the Board concludes that the Veteran has been rendered unemployable due to his service-connected PTSD, and a grant of TDIU is warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.