Citation Nr: 21010366 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-31 096 DATE: February 24, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 14, 2020, is denied. Entitlement to a rating in excess of 70 percent for PTSD from July 14, 2020, is denied. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to July 14, 2020, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From July 14, 2020, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. 3. The Veteran last worked as lighting technician in 2009; his service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 50 percent for PTSD are not met prior to July 14, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent for PTSD are not met from July 14, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1968 to April 1971. He testified before a Veterans Law Judge (VLJ) who has since retired from the Board of Veterans’ Appeals (Board) during a July 2013 hearing, and before the undersigned VLJ during a May 2019 hearing. This matter is on appeal from an October 2010 rating decision and was most recently remanded by the Board in September 2019. 1. Entitlement to an initial rating in excess of 50 percent for PTSD prior to July 14, 2020 The Veteran contends that his symptoms warrant a rating higher than 50 percent prior to July 14, 2014. May 2019 Hearing Transcript. 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher prior to July 14, 2020. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher prior to July 14, 2020. 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. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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 minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA and Vet Center treatment records, the September 2010 and May 2014 VA examinations, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 50 percent rating of flattened affect; no symptoms associated with a 70 percent rating have been shown. He also had symptoms that are not listed with a specific rating, such as avoidance, diminished interest, social distancing, emotional numbness, sleep disturbance, intolerance/anger, difficulty concentrating, hypervigilance, exaggerated startle, irritability, reduced appetite, difficulty getting motivated to do daily tasks, and loneliness. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. No flare-ups in severity have been reported. Further, his symptoms of avoidance, diminished interest, social distancing, emotional numbness, sleep disturbance, intolerance/anger, difficulty concentrating, hypervigilance, exaggerated startle, irritability, reduced appetite, difficulty getting motivated to do daily tasks, and loneliness are similar to difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, which are contemplated by the assigned 50 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the September 2010 and May 2014 VA examinations. He testified during his May 2019 hearing that he thought about suicide sometimes, but that the thoughts would pass and go away. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA and Vet Center treatment records, and the September 2010 and May 2014 VA examinations, indicate that the Veteran had normal speech; restricted, angry, and constricted affects; depressed, anxious, and mildly irritable moods; no hallucinations, impairment of thought process, or communication; and intact insight and judgment. During the September 2010 VA examination, the Veteran reported that a typical day consisted of waking up, having coffee, showering, eating three meals, attending any appointments, paying bills, going grocery shopping, working on house projects, visiting friends, texting people to communicate, checking computer for email or research, and watching television. He reported that his main social support was Alcoholics Anonymous with two close friends from here; he also had affiliations with a prisoner of war (POW)/missing in action (MIA) organization that had a cookoff for younger veterans leaving for the Gulf. The Veteran reported trying to reach out more and meet people. He reported maintaining beehives to soothe himself, and woodworking in his workshop. He also reported being divorced for 28 years and currently living alone. He had one daughter from his marriage, and they had a “very good relationship.” During the May 2014 VA examination, the Veteran reported that he had been visiting his daughter for the last two winters because he sometimes became “very depressed” in Idaho during the winters. The Veteran reported getting into a couple of fights over the winter. He had two grandchildren. The Veteran reported considering reducing his time spent with his daughter to one month from three months. He denied regular contact with other family members. The Veteran reported that he did not relate to many others where he currently lived, and did not remain in contact with other work friends as they did not have the time. The Veteran has not experienced symptoms contemplated by a 70 percent rating; the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Further, while the September 2010 VA examination showed that the Veteran retired after he moved, he reported to that examiner he did not mess up how he made a living after finding his niche working as a lighting technician. He described himself as a “workaholic” and indicated that he was able to successfully keep his substance abuse problems from affecting him at work. The May 2014 examination reflects that the Veteran retired four years earlier, and reported increased anger at work prior to retirement. Additionally, a June 2010 Vet Center treatment record shows that the Veteran was able to cope in working as an independent contractor where he was able to control his schedule and have a work environment that avoided people. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 70 percent rating prior to July 14, 2020. The criteria for an initial 70 percent or higher rating are not met prior to July 14, 2020, and the appeal must be denied. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 2. Entitlement to a rating in excess of 70 percent for PTSD from July 14, 2020 The Veteran contends that his symptoms warrant a rating higher than 70 percent from July 14, 2014. May 2019 Hearing Transcript. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent from July 14, 2020. The Board concludes that the Veteran’s symptoms have not caused the level of impairment required for a disability rating of 100 percent from July 14, 2020. The Veteran’s symptoms more closely approximate the symptoms associated with a 70 percent rating, and result in a level of impairment that most closely approximates the level of impairment associated with a 70 percent rating. The criteria for 70 percent and 100 percent ratings were discussed above, and will not be repeated. VA treatment records, the July 2020 VA examination, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating of suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. No symptoms associated with a 100 percent rating were shown. He also had symptoms that are not listed with a specific rating, such as frequent hypervigilance, violent nightmares approximately once a week, startle response on more days than not, anger management problems, chronic feelings of shame and guilt, a constant feeling of being on an emotional breakdown, intrusive memories, and social isolation. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. No flare-ups of symptoms were reported. Further, his symptoms of frequent hypervigilance, violent nightmares approximately once a week, startle response on more days than not, anger management problems, chronic feelings of shame and guilt, constant feeling of being on an emotional breakdown, intrusive memories, and social isolation are similar to symptoms of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships, which are contemplated by the assigned 70 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran reported to the July 2020 examiner that he had passive suicidal ideation, indicating the he was not afraid to die, but did not have intent or plan. There are no treatment records showing that the Veteran had any thoughts, intent, or a plan involving self-harm. The Board also finds that the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA treatment records and the July 2020 VA examination indicate that the Veteran had primarily neutral mood; stable affect; fair judgment/impulse control; some difficulties with focus and tangential attention/concentration; and intact insight. During the July 2020 VA examination, the Veteran reported that he was not on any medication management and attended a PTSD group approximately one time per month with his counselor. The Veteran has not experienced symptoms contemplated by a 100 percent rating; the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, for the reasons discussed below, the Veteran is not unemployable due to his PTSD; thus, total occupational impairment has not been shown. Additionally, he is not totally socially impaired. During the July 2020 VA examination, the Veteran reported that he was currently in the process of moving to find a smaller community. He reported having a good relationship with his daughter. He had been involved with the POW/MIA organization, the Field of Heroes project, and was a member of the Elks Lodge. He reported having no significant relationship in the past 22 years; he indicated he was too impatient and irritable to be with anybody. The Veteran noted having a better rapport with animals than people. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating from July 14, 2020. The criteria for a 100 percent or higher rating are not met from July 14, 2020, and the appeal must be denied. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra. 3. Entitlement to TDIU The Veteran contends that he has been unable to work because of his service-connected PTSD. May 2019 Hearing Transcript at 4. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran’s education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). In the current appeal, service connection has been granted for PTSD, tinnitus, left eye, and right ear hearing loss disabilities. The Veteran’s combined disability rating is 50 percent prior to September 15, 2010; 60 percent from September 15, 2010, to July 14, 2020; and 70 percent from July 14, 2020. As such, he has not met the criteria for consideration for entitlement to TDIU on a schedular basis prior to July 14, 2020, but has met it thereafter. 38 C.F.R. § 4.16(a). It is also the policy of VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). Thus, the Board must evaluate whether there are circumstances in the case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating, based on unemployability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Id. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background, but not age. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. In this case, after reviewing the pertinent evidence of record, the Board concludes that, for the period prior to July 14, 2020, referral for TDIU on an extraschedular basis is not warranted. For the period beginning July 14, 2020, entitlement to TDIU on a schedular basis is not warranted. The Veteran has not submitted an application for TDIU. A September 2010 treatment record reveals that he worked as a stage hand for shows in Las Vegas and retired last year. He reported that he had been unable to maintain ongoing work and coped by working as an independent contractor where he was able to control his schedule and have a work environment that avoided people. He reported having completed some college. The September 2010 VA examination for his PTSD shows that he worked freelance as a lighting technician for multiple contractors per year for over 35 years. The longest he spent at any one was 25 years from some specific contractors who would keep hiring him. The Veteran described himself as a workaholic. The examiner opined that the Veteran’s PTSD resulted in occupational impairment with occasional decrease in work efficiency, or there were intermittent periods of inability to perform occupational tasks, but generally satisfactory functioning. Pain issues remained ongoing, and were managed symptomatically. The May 2014 VA examination for his PTSD reiterated that the Veteran had retired about four year ago. The Veteran reported increased anger at work prior to retirement. The examiner opined that the Veteran's PTSD resulted in occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The July 2020 VA examination continued to show that the Veteran was retired. The examiner opined that his PTSD resulted in reduced reliability and productivity. In this case, the evidence fails to show that the Veteran’s service-connected disabilities, alone, render him unemployable. No medical professional has provided any opinion indicating that the Veteran’s service-connected disabilities preclude him from substantially gainful employment consistent with his employment and educational background. While the Veteran has not been employed during this appeal, the evidence does not show that his service-connected disabilities render him unable to engage in substantially gainful employment. The evidence shows that the Veteran was able to maintain employment for over 35 years until he retired. It does not show that the Veteran missed work or had work problems due to his service-connected disabilities. As noted above, the Veteran was reportedly a workaholic. Although the Veteran’s service-connected disabilities cause interference with his employability, such interference is fully contemplated in the schedular ratings currently assigned to the disabilities. The evidence of record fails to establish that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Accordingly, entitlement to TDIU is not warranted. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Barstow, 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.