Citation Nr: 21010596 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-09 274 DATE: February 25, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal period the Veteran’s service-connected psychiatric disorder has not resulted in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise regarding whether the Veteran is unable to secure or follow a substantially gainful occupation consistent with his education and work experience because of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for service-connected psychiatric disorder have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Codes 9411. 2. The criteria for entitlement to a TDIU have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served in the Army National Guard. He had a period of active duty training (ADT) from October 2001 to March 2002 as well as periods of active duty from February 2003 to May 2004 and from September 2009 to October 2010, to include service in Southwest Asia. The Veteran also had additional periods of ADT and inactive duty training (IDT). The Veteran was awarded a Combat Action Badge among other awards and decorations. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019 the case was remanded by the Board to attempt to obtain private psychiatric treatment records. Such attempts have been unsuccessful, but in a January 2020 letter the Veteran’s attorney acknowledged that the remand instructions had been completed and requested adjudication by the Board. 1. Increased Rating for Psychiatric Disorder Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s service-connected PTSD with major depressive disorder (psychiatric disorder) is evaluated under Diagnostic Codes 9411 at a 50 percent disability rating. Psychiatric ratings are assigned based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 10 percent rating is warranted when there is 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 continuous medication. Id. A 30 percent rating is warranted when there is 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. 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 such as, 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 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 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 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 inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In January 2017, the Veteran submitted a claim for an increased rating for his service-connected psychiatric disorder. At the same time he submitted a January 2017 letter from a private psychologist. This letter consists of argument about how the psychologist viewed previously submitted evidence and how it related to VA’s Rating Schedule and regulations, as opposed to how VA viewed the evidence when it made a previous decision, and does not constitute medical evidence. It is further noted that the psychologist was not appointed as the Veteran’s representative. The psychologist’s letter references items which had clearly already been considered in prior rating action by VA and document the Veteran’s condition prior to the period covered by this current appeal. The Veteran has submitted multiple, duplicate copies of this letter throughout the course of the appeal. In February 2017 a VA Compensation and Pension examination of the Veteran was conducted. The diagnosis was PTSD and other specified depressive disorder. The examiner indicated that the Veteran had occupational and social impairment with reduced reliability and productivity. Symptoms present were depressed mood, anxiety, suspiciousness, chronic sleep disturbance, and disturbance of mood and motivation. He was alert and fully oriented and cooperative with no suicidal ideas. Speech was clear and fluent with normal volume, rate, and tone. He was appropriate and reciprocal in conversation. His expressed thoughts were logical, and goal directed. There was no evidence of psychotic thought process or delusional content. His mood and affect were mildly anxious and down. He showed a restricted range of affect. The examiner indicated that the Veteran’s “PTSD is associated with the full range of trauma-related symptoms. His depression is associated with weekly brief depressive episodes. There are overlapping symptoms of sleep disruption, anhedonia, irritability, and entrenched negative beliefs about self and others.” The Veteran reported regular treatment with a private practitioner, but as noted above, attempts to obtain these records have been unsuccessful. The examiner also noted that the Veteran's “claimed inability to work seems mostly related to chronic [nonservice connected] ankle pain and mobility deficits.” In April 2017, the examiner provided an addendum opinion with respect to the Veteran’s claim for TDIU. The examiner indicated that the Veteran “continues to struggle with mild to moderate symptoms of his service-connected PTSD and associated depression,” and that his mental health “conditions appear to be stable over time.” In April 2017 the Veteran submitted a letter with respect to his claim for TDIU, in this letter he reported symptoms related to his PTSD including nightmares and difficulty with coworkers. However, these reported symptoms appear consistent with those considered in the recent VA examination report. In an August 2020 letter, the Veteran’s attorney asserted that he met the criteria for the assignment of a 70 percent disability rating for PTSD. Again, like the private psychologist’s letter, the attorney referred to a 2015 evaluation report which was already considered in a prior final rating decision and beyond the period covered by the present appeal. The preponderance of the evidence is against the claim for a disability rating in excess of 50 percent for the Veteran’s service-connected psychiatric disorder for any period covered by this appeal. The Veteran has symptoms of depressed mood, anxiety, suspiciousness, chronic sleep disturbance, and disturbance of mood and motivation. There is no evidence of psychotic symptoms or of suicidal thoughts. His psychiatric disorder results in occupational and social impairment with reduced reliability and productivity. The available evidence does not show that the Veteran has during the course of this appeal had occupational and social impairment with deficiencies in most areas or total occupational and social impairment. Despite his assertions, the Veteran’s service-connected psychiatric disorder is shown to be at a level of functioning contemplated by the presently assigned 50 percent disability rating. A rating in excess of 50 percent is not warranted, and the claim is denied. 2. TDIU During the pendency of the appeal, the Veteran raised the issue of entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). The Veteran meets the schedular requirements for TDIU consideration as a result of his PTSD, tinnitus, hallux valgus of the right great toe, and hallux valgus of the left great toe. On his applications for unemployability the Veteran reported completing high school and some general studies in community college. He reported he last worked full-time from February 2007 to November 2013 as a Corrections Officer. The other evidence of record dated March 2017 confirms that the Veteran took disability retirement as a Corrections Officer due to an on-the-job injury to his ankle. In April 2017, the examiner provided an addendum opinion with respect to the Veteran’s claim for TDIU. The examiner indicated that the Veteran “has not worked since a third ankle injury in 2013 and associated depression. His current claimed inability to work seems mostly related to chronic ankle pain and mobility deficits. He was appropriate and reciprocal in his conversation on current interview and he did not report any history of job-related disciplinary problems, even though he did not really like his co-workers and supervisors. He fears losing his temper around other people and therefore avoids social situations except with trusted others. His avoidance is an appropriate target for continued psychotherapy. He currently assists with domestic chores and enjoys parenting his two young sons, describing himself as ‘a different person,’ in a positive way, when he is with them. He has a small social support group, including his wife and a couple of close friends.” In June 2018, a private vocational employability assessment of the Veteran was conducted. The evaluator reviewed the claims file and interviewed the Veteran and conclude that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected disabilities since 2013 when he ceased working as a Correction Officer. The evaluator noted symptoms from service-connected disabilities – such as anxiety, depression, paranoia, hypervigilance, chronic sleep impairment, suspiciousness, aggravation, irritability, avoidance of social situations or crowds, homicidal thoughts, difficulty concentrating, pain in great toes with prolonged standing and ringing in his ears – would negatively impact his ability to maintain reliable attendance, concentrate and retain information to reliably complete tasks, and control his anger, anxiety, and depression. The evidence shows that the Veteran has not engaged in gainful employment since 2013. There is evidence both for and against a finding that his service-connected disabilities result in impairment that would preclude employment in light of his high school education with some general studies at community college and prior work experience which essentially entailed maintaining a professional and controlled environment with others even during times of significant stress. The evidence is at least in equipoise as to whether his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. (Continued on the next page.) Given the above, reasonable doubt is resolved in the Veteran’s favor and TDIU is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Havelka, 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.