Citation Nr: 21009769 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-42 838 DATE: February 23, 2021 ORDER A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depression is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PTSD with depression was manifested by psychiatric symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 2. Resolving all doubt in the Veteran’s favor, his service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD with depression have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to August 1986, January 1991 to May 1991, July 1996 to March 1997, and December 2002 to December 2003, with additional service in the Reserve. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in July 2016 and October 2017 by a Department of Veterans Affairs (VA) Regional Office. In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the June 2017 statement of the case. 38 C.F.R. § 20.1305(c). The undersigned also held the record open for the submission of additional evidence, which was received in June 2020. 1. Entitlement to a rating in excess of 50 percent for PTSD with depression. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on June 24, 2015, the date VA received the Veteran’s intent to file a claim for an increased rating for his PTSD with depression, plus the one year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Throughout such period, the Veteran’s PTSD is rated as 50 percent disabling pursuant to Diagnostic Code 9411, which provides that such disability is evaluated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. In this regard, 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. A 70 percent rating is warranted when there is 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126(a). As previously, noted, for the entire appeal period, the Veteran’s PTSD with depression is rated as 50 percent disabling. Therefore, to warrant a higher rating, the evidence must show that such disability resulted in psychiatric symptomatology that more nearly approximates occupational and social impairment with deficiencies in most areas or total occupational and social impairment. In regard to the Veteran’s psychiatric symptomatology, VA treatment records dated in June 2014 reflect his report of nightmares, mood swings, a lack of energy, bad moods, and visual hallucinations that involved seeing his cat going up stairs. In February 2016, the Veteran stated that he avoided going out and socializing, although he did have friends. He reported depression and anxiety, and asserted his PTSD caused him to be angry and controlling in his relationships. An additional February 2016 VA treatment record reflects the finding of passive homicidal ideation without further explanation. An April 2016 VA examiner found the Veteran’s PTSD with depression was manifested by a depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. There was no evidence of delusions, hallucinations, suicidal thoughts, or homicidal thoughts. The Veteran was well-oriented, with a dysthymic mood and restricted affect, but he had age-appropriate memory, insight, and judgment. The VA examiner described the overall severity of the Veteran’s PTSD with depression as moderate. A November 2017 VA treatment shows that, although the Veteran had been feeling “confused and depressed,” he had been hanging out with a new friend. At an April 2018 VA examination, the Veteran’s relevant symptomatology was noted to include a depressed mood, anxiety, panic attacks weekly/less often, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran endorsed the following symptoms, rating them on a scale from zero to 10: anxiety–7; apathy–4; loss of interest-5; mood swings-10; fatige-7; irritability-7; lack of concentration-7; and slowness in activity and thought-6. He also rated the following PTSD symptoms as “moderately,” “quite a bit,” or “extremely” severe: repeated, disturbing memories and dreams; trouble remembering important parts of a stressful experience; loss of interest; feeling emotionally numb or being unable to have loving feelings; feeling irritable or having angry outbursts; difficulty concentrating; and feeling jumpy or easily startled. At the January 2020 hearing, the Veteran primarily associated symptoms of anger, irritability, long-term memory issues, problems with concentration, and lack of motivation with his service-connected PTSD with depression. He also admitted to diminished personal hygiene at times due to his lack of motivation and apathy. With respect to occupational impairment, the April 2016 VA examiner found the Veteran’s PTSD with depression resulted in reduced reliability and productivity. In this regard, it was noted he was currently working with his brother “at his own pace” in the family’s plumbing business. In April 2018, the VA examiner likewise found the Veteran’s PTSD resulted in reduced reliability and productivity. On examination, the Veteran reported being self-employed as a plumber since 2013 and evaluated his occupational impairment as a “4” on a scale of 0 to 10. Specifically, he stated that there were some days that he could not make himself go to work because of his mood swings, which was starting to affect his livelihood. The Veteran indicated that his PTSD with depression moderately impacted his ability to be as productive as he would like in his work, and such had resulted in approximately one to five days in the last 30 days of unplanned lateness or absence from work. The VA examiner determined the Veteran’s anxiety, apathy, loss of interest, mood swings, fatigue, irritability, lack of concentration, and slowness in activity and thought interfered significantly with his ability to work, and the Veteran reported being fearful of losing his job. Additionally, the VA examiner found the Veteran was so depressed that he had difficulty sustaining energy and motivation to complete assignments at work. At the January 2020 hearing, the Veteran testified that his lack of motivation and energy, in connection with his angry outbursts and irritability, would make it impossible for him to work outside the confines of a protected environment such as the family business. As for social impairment, the April 2016 VA examiner noted the Veteran had golfed with an Army buddy only two days previously. At that time, the Veteran was focused on his marital issues, as he was recently separated from his wife. He also reported problems with irritability and being in large crowds. The April 2018 VA examination also shows the Veteran was separated from his wife “due to his PTSD symptoms”, and he reported becoming more and more isolated. According to the report, the Veteran had been arrested for assaulting a man in 2017 and was awaiting a court date scheduled for May 2018. The Veteran rated the impact of his PTSD on his personal life as a “4”, stating that he used to joke around and be a fun guy, but now his life “was messed up” and he was no longer that same person. He rated the impact on his family life as a “6” based on his anger issues, which strained his relationship with his daughter and wife, and he rated the impact on his social life as a “6” because he did not like to be in crowds and therefore he did not go out. He also stated that his hobbies included drinking and golfing, although he could not remember the last time that he had golfed. However, he indicated that his symptoms had only slightly impacted his normal activities with family and friends in the last 30 days, and reported that his support system was very good. He was independent with all activities of daily living, although he described a loss of interest in things he used to enjoy and feeling emotionally numb. At the January 2020 hearing, the Veteran reported a good relationship with his brother, daughter, and granddaughter and indicated that he also spent time with a friend. He further stated that he was a part of a bowling league; however, he dreaded going because he did not like the people on his team. He did report a history of physical assaults as well as severe problems involving anger and irritability. Upon review of the foregoing evidence, the Board finds a rating in excess of 50 percent for PTSD with depression is not warranted at any time during the appeal period. Here, the Board affords the VA examiners’ findings significant probative value as such were based on psychological evaluation of the Veteran and consideration of his own lay reports of his symptoms in light of the rating criteria. In particular, the April 2016 VA examiner found the Veteran’s self-report was indicative of symptoms only moderate in severity, and both examiners specifically described the Veteran’s level of occupational and social impairment as reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula. Moreover, with respect to the specific types of symptoms associated with a higher rating, the Board notes the evidence, to include the Veteran’s own lay statements, does not reflect suicidal ideation, obsessional rituals, speech intermittently illogical, obscure, or irrelevant, or near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. In this regard, the Board recognizes the February 2016 notations regarding visual hallucinations but finds the specific content of such, which were described as “benign”, do not appear to be associated with the Veteran’s service-connected PTSD with depression and, moreover, are not reflected in the remainder of the record. Likewise, the Board finds the singular report of homicidal ideation does not rise to the level of severity of symptomatology, in frequency or duration, contemplated by the criteria for a higher disability rating. With regard to occupational impairment, the Board herein awards a TDIU based, in large part, on the functional impact of the Veteran’s psychiatric symptomatology, which is discussed in greater detail below. However, the General Rating Formula notably contemplates both occupational and social impairment (emphasis added). In this regard, the Board finds that, although the Veteran reports difficulties with anger and irritability, notably directed at other people, the record shows he has maintained several friendships as well as relationships with his brother, daughter, and granddaughter, to include a working relationship with his brother, throughout the appeal period. Therefore, in consideration of the totality of the nature, frequency, severity, and duration of the Veteran’s psychiatric symptomatology, and with particular attention to both the occupational and social impairment resulting therefrom, the Board finds a rating in excess of 50 percent for PTSD with depression is not warranted under the General Rating Formula at any time during the appeal period. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected PTSD with depression; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, the assignment of staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the claim decided herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against such claim, the benefit of the doubt doctrine is not applicable in such regard and the Veteran’s increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability 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). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran’s earned annual 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. 38 C.F.R. § 4.16(a). 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. Id. In Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017), the United States Court of Appeals for Veterans Claims (Court) indicated that factors to consider may include the “magnitude of the veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work.” Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Although VA received the Veteran’s VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, on August 28, 2017, the Board finds the instant appeal stems from the receipt of his intent to file a claim on June 24, 2015. Rice, supra; Harper v. Wilkie, 30 Vet. App. 345 (2018). For the entire appeal period, the Veteran is service-connected for PTSD with depression, evaluated as 50 percent disabling; irritable bowel syndrome, diarrhea type, non-specific colitis, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensably disabling, which results in a combined schedular rating of 70 percent as of June 24, 2015. Thus, he meets the schedular threshold for consideration of a TDIU for the entire appeal period. In his Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he became too disabled to work and last worked full-time on September 13, 2013. His pertinent employment history consisted of 23 years in the military, 20 years as a mailman with the post office, and 14 years working as a plumber for the federal prison system. Since his resignation from the prison system, the Veteran reports working as a plumber with his brother in the family business. His highest level of education consists of two years of college. Initially, the Board notes the Veteran reports employment as a plumber during the appeal period, and his 2017 income tax return reflects an adjusted gross income of $53,628, for he and his spouse as they filed jointly. However, he reported no wages in 2018 or 2019, and records from the family business reflect that it operated at a loss in 2017 and 2019, and had a net income of $ 3,147 in 2018. Further, when considering the Veteran’s reports concerning the accommodations his brother was able to provide him, the Board finds the Veteran’s employment in the family business during the appeal period was in a protected environment and, thus, constitutes only marginal employment for the purpose of entitlement to a TDIU. Therefore, the remaining inquiry is whether the Veteran’s service-connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, a VA examiner determined the Veteran’s irritable bowel syndrome did not impact his ability to work in April 2016. However, following audiological examination that same month, a VA examiner opined the Veteran would experience impaired communication even with proper amplification, especially when in the presence of background noise. The Veteran reported that he could not hear people unless he was looking directly at them and they were looking directly at him. Additionally, as noted above, both the April 2016 and April 2018 VA examiners opined the Veteran’s PTSD with depression resulted in occupational and social impairment with only reduced reliability and productivity. Nevertheless, the Board affords particular probative weight to the April 2018 Individual Unemployability Statement completed by the VA examiner. Therein, the VA examiner found the Veteran had significant difficulty functioning around other people, had difficulty functioning as a team member, felt uncomfortable around others, and could not tolerate being around other people in any setting for more than a few minutes. Moreover, the VA examiner noted the Veteran was “so depressed” that he had difficulty sustaining energy and motivation to complete assignments at work and had other symptoms, consisting of anxiety, apathy, loss of interest, mood swings, fatigue, irritability, lack of concentration, and slowness in activity and thought, that interfered significantly with his ability to work (emphasis added). Furthermore, the Board notes the Veteran’s history of violence during the appeal period and his competent reports regarding the impact of the symptomatology associated with his PTSD with depression and irritable bowel syndrome on his employability. Thus, the Board finds the probative evidence shows the Veteran’s service-connected disabilities alone were of sufficient severity so as to render him incapable of performing the physical and mental acts required by employment consistent with his education and work history during the appeal period. Therefore, a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss. The Veteran contends the severity of his service-connected bilateral hearing loss warrants a compensable rating. At the January 2020 hearing, he testified that his bilateral hearing loss had increased in severity since his most recent VA examination was conducted in April 2016 as he had increased difficulty with communication. Therefore, a remand is necessary in order to afford the Veteran an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The matter is REMANDED for the following action: Afford the Veteran a VA audiological examination to determine the current nature and severity of his service-connected bilateral hearing loss. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. In this regard, the examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner is also requested to describe the functional effects of the Veteran’s bilateral hearing loss. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.