Citation Nr: 21010063 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-58 141 DATE: February 24, 2021 ORDER An initial evaluation in excess of 30 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), prior to August 5, 2019, is denied. An evaluation of 50 percent, but not in excess thereof, for an acquired psychiatric disability, to include PTSD, from August 5, 2019, is granted. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) prior to August 5, 2019 is denied. FINDINGS OF FACT 1. Prior to August 5, 2019, the Veteran’s acquired psychiatric disability was not productive of occupational and social impairment with reduced reliability and productivity; of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or of total occupational and social impairment. 2. From August 5, 2019, the Veteran’s acquired psychiatric disability was productive of occupational and social impairment with reduced reliability and productivity, but was not productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, or of total occupational and social impairment. 3. Prior to August 5, 2019, the Veteran’s service-connected disabilities did not render him unemployable or unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for an acquired psychiatric disability, to include PTSD, prior to August 5, 2019, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). 2. The criteria for an evaluation of 50 percent, but not in excess thereof, for an acquired psychiatric disability, to include PTSD, from August 5, 2019, are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). 3. The criteria for a TDIU prior to August 5, 2019 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to December 1969. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. On August 5, 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In January 2020, the Board decided six issues, including those on appeal, which were denied. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial as to these two issues in an October 2020 order granting a joint motion for partial remand (JMPR). The issues are therefore again before the Board. 1. Entitlement to an initial evaluation in excess of 30 percent for an acquired psychiatric disability, to include PTSD, prior to August 30, 2019 2. Entitlement to an evaluation in excess of 30 percent for an acquired psychiatric disability, to include PTSD, from August 30, 2019 The Veteran claims an increased rating for PTSD. Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Diagnostic Code 9411 of 38 C.F.R. § 4.130 specifically addresses PTSD; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, the Veteran’s current 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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 effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. A total schedular rating of 100 percent is warranted for 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 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). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran underwent a VA examination in June 2016. He reported that he lives with his son and daughter. He reported that his daughter had a bad temper. He reported that he keeps game chickens as a hobby. He reported that he was easily fatigued and did not do much as his children help him. He stated that he visits his sister who lives several hours away. He reported problems with anxiety from driving. He also had problems with loud noises but said he was okay if he stays busy. He reported sleep problems 2-3 nights per week. He stated that he has a couple of friends who also deal with chickens but otherwise does not associate with others. He did not work and relied on social security. The examiner noted symptoms of anxiety, chronic sleep impairment, and mild memory loss. He was diagnosed with PTSD productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. VA treatment records reflect that in December 2016 the Veteran requested a mental health consultation. He reported bad dreams, road rage, forgetfulness, and difficulty with crowds. He reported being easily distracted. At a January 2017 mental health consultation, he reported sporadically struggling with intrusive thoughts and memories. He reported that he stays engaged with family, friends, and community. He stated that he keeps himself busy at home with his animals and enjoys this. In July 2019 he reported intrusive thoughts and memories but stated that he feels that he is coping fairly well. He stated that he finds it difficult to be around children, often isolating himself from his family. He reported staying busy with the animals he cared for. He stated that he was told that he needed to see his doctor for PTSD but declined further mental health treatment at this time. At his August 5, 2019 hearing, the Veteran reported that he was aggravated by his depression associated with his PTSD. He reported thoughts of suicide. He reported memory problems. He reported that he had no social life outside of his family and two or three guys he knows. He stated that he had a hard time getting along with his family members. His son reported that he exhibited trouble with forgetfulness, difficulty completing tasks, and irritability. His son further stated that he did not socialize and kept to himself when visiting family. His attorney argued that a 70 percent rating was warranted. The Veteran has submitted an August 2019 report by a private psychologist who evaluated him based on a videoconference interview. The Veteran described a longstanding history of adjustment difficulties. He reported that persisting memories have taken a gradually increasing toll on him, eroding his ability to function in everyday life. He reported a loss of interest and pleasure in activities, social withdrawal, and unstable mood swings. The psychologist noted that the Veteran endorsed general nervousness, tension, anxiety/fear, excessive watchfulness and caution, nightmares, sleep disturbance, sexual problems, fatigue, headaches/dizziness, concentration problems, forgetfulness, irritability, isolation, family issues, depression, crying spells, sensitivity to noise, ruminations, avoidance, distraction, unstable moods, hopelessness, worrying, panic attacks, loss of interest, apathy, and paranoia. He was diagnosed with PTSD. The psychologist opined that his symptoms prevented him from functioning in a competitive working environment and was thus incapable of sustained employment. The psychologist later summarized that his symptoms and condition had presented a “moderately negative” effect on his ability to perform full-time independent work in a competitive work setting. The psychologist opined that his overall level of psychological disability was “moderately impaired.” The Veteran underwent another VA examination in September 2019. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory impairment, difficulty with complex commands, and disturbances of motivation and mood. He was diagnosed with PTSD and an unrelated major neurocognitive disorder. The examiner explained that it was not possible to differentiate the symptoms of his two diagnoses. Together, the examiner stated that they were productive 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. For the period prior to August 5, 2019, the Board finds that an initial rating in excess of 30 percent is not warranted for the Veteran’s acquired psychiatric disability. Higher ratings are available for occupational and social impairment with reduced reliability and productivity; for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or for total occupational and social impairment. The evidence weighs against such manifestations. While the Veteran reported more serious symptoms at his August 2019 hearing and at his August 2019 private evaluation, these symptoms are not consistent with those noted at his VA examinations or reflected in his VA treatment records prior to August 5, 2019. Nowhere else in the record are indications of panic attacks, and he routinely denies suicidal ideation in his treatment records. Rather, he reported symptoms such as sleep problems 2-3 nights per week, anxiety while driving, forgetfulness, difficulty with crowds, and being easily distracted. He reported sporadic struggling with intrusive thoughts and memories. He nevertheless reported that he kept himself busy working with animals and was able to maintain relationships, staying engaged with family, friends, and community. Such symptoms do not warrant ratings in excess of 30 percent. He did not receive regular mental health treatment, and there is no indication of more serious symptoms outside of his attempts to get increased benefits at his hearing and at his August 2019 private evaluation. For these reasons, the Board finds that an evaluation in excess of 30 percent is not warranted prior to August 5, 2019. For the period from August 5, 2019, the Board finds that an evaluation of 50 percent is warranted. Such a rating is warranted for occupational and social impairment with reduced reliability and productivity. At his Board hearing on August 5, 2019, the Veteran reported symptoms more serious than those reflected by VA examination reports or treatment records prior to that date. Moreover, at his September 2019 VA examination, the examiner noted symptoms of memory impairment, difficulty with complex commands, and disturbances of motivation and mood. Together, these symptoms meet the criteria for an increased rating of 50 percent. The Board further finds that an evaluation in excess of 50 percent is not warranted. Higher ratings are available for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, or for total occupational and social impairment. The evidence weighs against symptoms of such severity. The August 2019 private evaluation determined that his PTSD rendered him “moderately impaired,” which does not indicate total occupational and social impairment. While he reported suicidal ideation and strained relationships with his family at his August 2019 hearing, no treatment records or examinations reflect suicidal ideation. His relationships with his family members are no doubt impacted by his disability, his son testified at his hearing and described his behavior when visiting family. For these reasons, the Board finds that an evaluation of 50 percent, but not in excess thereof, is warranted for PTSD from August 5, 2019. 3. Entitlement to a TDIU prior to August 5, 2019 The Veteran seeks a TDIU. He contends that his service-connected disabilities, when considered in combination, render him unemployable. The issue was first raised at his August 2019 hearing, and the Board takes jurisdiction of the intertwined matter as part and parcel of his increased rating appeals. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “an occupation that provides an 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.” Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service (“Director”) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In an August 2019 application for TDIU, the Veteran reported that he became unemployable in January 2006 due to his PTSD, heart condition, hearing loss, and tinnitus. He worked full-time as a contract chicken grower until 2005. He reported that since that time he worked intermittently part time as a seasonal beaver trapper. Prior to August 5, 2019, the Veteran is in receipt of a 10 percent rating for coronary artery disease and a noncompensable rating for genital herpes. From May 2016, he is also in receipt of a 30 percent rating for PTSD, a 20 percent rating for bilateral hearing loss, and a 10 percent rating for tinnitus. He is thus in receipt of a combined schedular rating of 10 percent prior to May 2016 and 60 percent thereafter. Because this rating does not meet the rating threshold, the Board finds that the Veteran is ineligible for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to August 5, 2019. The Board further finds that remand is not necessary to refer the Veteran’s claim for consideration for an extraschedular TDIU under 38 C.F.R. § 4.16(b). His symptoms prior to August 5, 2019, were not severe enough to render him unemployable. As discussed above, according to the May 2016 VA examiner his coronary artery disease is not the cause of his fatigue and shortness of breath. His rating is instead based on his need for continuous medication, which does not prevent him from engaging in work. Additionally, his PTSD prior to August 5, 2019 has shown itself to manifest in occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Such symptoms may interfere with employment but do not prevent it. Finally, while the Veteran’s hearing loss and tinnitus no doubt interfere with some forms of employment, the record does not establish that the Veteran is not qualified or capable of engaging in employment which does not require perfect hearing capability. For these reasons, the Board finds that prior to August 5, 2019, the evidence weighs referring TDIU for extraschedular consideration under 38 C.F.R. § 4.16(b). A TDIU for this period is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.