Citation Nr: 21010666 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-14 565 DATE: February 25, 2021 ORDER Entitlement to restoration of a 100 percent evaluation for posttraumatic stress disorder (PTSD), effective from March 1, 2021, is granted. Entitlement to an initial rating greater than 30 percent for PTSD, prior to August 19, 2019, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to August 19, 2019, is denied. FINDINGS OF FACT 1. In a December 2020 rating decision, the RO reduced the rating for the Veteran’s service-connected PTSD from 100 percent to 70 percent, effective March 1, 2021. 2. The 100 percent rating for the Veteran’s service-connected PTSD had been in effect since August 19, 2019, which was a period of less than 5 years. 3. The RO’s action in reducing the rating for the Veteran’s service-connected PTSD from 100 percent to 70 percent, effective March 1, 2021, resulted in reduction of compensation. 4. The evidence of record at the time of the December 2020 rating decision did not clearly reflect a material improvement in the Veteran’s service-connected PTSD which resulted in an improvement in his ability to function under the ordinary conditions of life and work. 5. Prior to August 19, 2019, the most probative evidence establishes that the Veteran’s service-connected PTSD with major depressive disorder and insomnia is manifested by 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, but not occupational and social impairment with reduced reliability and productivity. 6. The preponderance of the evidence is against a finding that the Veteran is unable to obtain or maintain any form of substantially gainful employment due to service-connected PTSD, with major depressive disorder and insomnia, prior to August 19, 2019. CONCLUSIONS OF LAW 1. The reduction of the rating for PTSD from 100 to 70 percent, effective March 1, 2021, was not proper. Restoration of the 100 percent disability rating for PTSD, effective from March 1, 2021, is warranted. 38 U.S.C. §§ 1155, 5112, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to an initial rating greater than 30 percent for PTSD, prior to August 19, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, DC 9411. 3. The criteria for entitlement to a TDIU prior to August 19, 2019, have not 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 in the U.S. Army from February 1967 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) from May 2012 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The May 2012 rating decision granted service connection for PTSD and assigned an initial 30 percent rating, effective March 25, 2011. The June 2014 rating decision denied TDIU. A notice of disagreement (NOD) was received in April 2013. A statement of the case (SOC) was issued in February 2015. A substantive appeal was filed in March 2015. In March 2018, the Board remanded this matter for further evidentiary development. In July 2019 the RO issued a supplemental statement of the case (SSOC). In October 2019, the RO increased the Veteran’s initial rating for PTSD from 30 percent to 100 percent effective August 19, 2019 and issued an SSOC dated September 2020. In September 2020, the RO sent the Veteran a proposal to reduce his PTSD disability evaluation from 100 to 70 percent. Shortly thereafter, in a December 2020 rating decision, the RO decreased the Veteran’s initial rating for PTSD from 100 to 70 percent, effective March 1, 2021. Although the Veteran has not yet appealed the reduction, it affects a portion of the period on appeal for the initial increased rating that is currently before the Board under the legacy appeals system. The Board has thus recharacterized the issue on appeal to include the propriety of the reduction. Further, in light of the full restoration below, no prejudice to the Veteran has occurred. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also notes that because the Veteran’s only service-connected disability is PTSD, and as he is getting the maximum schedular rating, effective August 19, 2019, entitlement to an initial increased rating for PTSD and entitlement to TDIU, from August 19, 2019, forward is moot. As such, the issues have been recharacterized as set forth above. Propriety of Rating Reduction VA’s Rating Schedule is primarily a guide used to evaluate the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to service. The disability evaluations represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. In VA’s Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a veteran's disability may require re-ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. In addition, the Veteran will be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105(h). These are such important safeguards that the United States Court of Appeals for Veterans Claims (Court) has held that, where VA has reduced a veteran's rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients may be afforded greater protections under 38 C.F.R. § 3.344(a) and (b), which sets forth the criteria for reduction of ratings in effect for five years or more, which stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; 38 C.F.R. § 3.344 (c). Specifically, the Court requires that adjudicators must: (1) review the entire record of examinations and medical and industrial history to ascertain whether the recent examination(s) on which the reduction was based were full and complete; (2) decline to use examinations which are less full and complete than those on which payments were authorized or continued; (3) not reduce an evaluation except in cases where all the evidence clearly warrants a finding of material improvement. In addition, where material improvement in the physical condition is clearly shown, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Brown, at 419-21; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (stating that “[t]hese requirements for evaluation of the complete medical history of the claimant's conditions operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition”); 38 C.F.R. § 3.344(c). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. As a preliminary matter, the Board notes that the reduction at issue resulted in a reduction of compensation payments because the Veteran’s combined evaluation for compensation was reduced from 100 percent to 70 percent. Thus, the Board has considered whether the procedural safeguards set forth at 38 C.F.R. § 3.105(e) were observed prior to reducing the Veteran's disability rating. After such consideration, the Board finds that the procedural safeguards were met. As noted, the RO issued a letter in September 2020 advising the Veteran of the proposed reductions, his right to present additional evidence within 60 days of receipt of the letter, and his right to request a hearing. The December 2020 rating decision effectuating the reduction was not issued until the appropriate time period had elapsed, and the effective date of the reduction was in accordance with applicable criteria. Thus, the Board finds that the requirements of 38 C.F.R. § 3.105(e) were met. The next question for consideration is whether the reductions were proper based on applicable regulations. As noted, at the time of the December 2020 rating decision at issue in this case, the 100 percent rating for the Veteran’s service-connected PTSD had been in effect since August 19, 2019, which was a period of less than five years. Thus, the provisions of 38 C.F.R. § 3.344(c), which apply to evaluations in effect for less than five years, are for application in this case. In determining whether the reduction at issue in this case complies with the provisions of 38 C.F.R. § 3.344(c), the Board has reviewed the record in its entirety. After so doing, the Board finds that the reduction was unlawful. As set forth above, in order to warrant a reduction, the evidence must show that the Veteran’s service-connected PTSD improved overall, resulting in an improvement in his ability to function under the ordinary conditions of life and work. In this case, the Board finds that the record is not sufficient to support a finding that the Veteran’s PTSD actually improved, resulting in an improvement in his ability to function under the ordinary conditions of life and work. Notably, when examined in September 2020, the examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Furthermore, the September 2020 examiner noted that the Veteran exhibited a depressed mood, anxiety, suspiciousness, chronic sleep problems, memory loss, impaired judgment, decreased motivation, difficulty interacting with others, suicidal thoughts, and spatial disorientation. In addition, the September 2020 VA examiner noted that the Veteran’s overall impairment had worsened since his exam with Dr. B.L. in June 2019. Such characterizations do not suggest an improvement. Additionally, the RO made no findings that the Veteran had experienced an improvement in his ability to function under the ordinary conditions of life and work in its December 2020 rating decision. Furthermore, the relevant SOC and SSOC did not address the propriety of the reduction. Rather, they focused on the consistency of the August 2019 private examination regarding the severity and frequency of the Veteran’s psychiatric symptoms with prior examinations, although the private examination was generally consistent with the later September 2020 examination. Overall, the Board finds that the RO reduced the Veteran’s rating on the basis of medical information that did not clearly show an improvement at the time of the September 2020 examination and, in fact, disregarded the VA examiner’s note that the Veteran’s overall impairment had worsened since his June 2019 VA examination. Since the burden is on VA to show that a rating reduction was warranted, and, for the reasons discussed above, VA failed to meet this burden, the 100 percent rating must be restored effective March 1, 2021. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992) (holding that where VA has reduced a veteran's disability rating without observing the applicable law and regulations, such a rating is void ab initio and restoration is required). Disability Rating Prior to August 19, 2019 Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. A veteran’s s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath, supra. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Hence, the following analysis is undertaken with the possibility that staged rating assignment of different ratings for distinct periods of time, based on the facts found, is appropriate Prior to August 19, 2019, the Veteran’s PTSD was evaluated as 30 percent disabling under DC 9411. However, the actual criteria for rating psychiatric disabilities other than eating disorders is set forth in a general rating formula. See 38 C.F.R. § 4.130. Under the rating criteria for mental disorders, 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, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events. 38 C.F.R. § 4.130, DC 9411. A 50 percent evaluation 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); inability to establish and maintain effective relationships. Id. Finally, a 100 percent evaluation 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 minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court held that the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). More recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that “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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in ‘most areas.’” Id. Evidence relevant to the appropriate rating for the Veteran’s PTSD prior to August 19, 2019, includes a report from Dr. H.J. dated in April 2011 that indicates that the Veteran presented in casual clothing and looked his stated age. It was noted that the Veteran had been married once, has two children, and last worked in 2004 at a tire company where he built tires for 32 years. He retired in 2004. The Veteran described his job as “very rough” but said it “took his mind away.” He reported that he had to regularly deal with other people. The Veteran was screened for depression and scored high on a Beck depression scale indicating severe depression. He also met the criteria for panic disorder according to the DSM-IV where he described episodes of rapid pounding of his heart, trembling, shaking, and feeling of numbness and tingling in his extremities. He reported a fear of losing control or going crazy. He reported that those attacks are driven by noise, crowds, and being on a bridge and feeling sequestered in a place where he cannot escape. The Veteran reported disturbing memories of thoughts and images. He stated that he could not get the dead bodies out of his mind. He reported disturbing dreams of being shot at and being followed by the enemy and said they occur about once a week. The Veteran stated that he would get very upset when he was reminded of Vietnam and resisted talking about it. He reported that when he does have to talk about it, he has an anxiety episode. The Veteran reported feeling emotionally numb, stating that he cannot have loving feelings for people who are around him. He also reported feeling distant and cut off from people, stating that he did not have friends and or go places. He described feeling irritable and having angry outbursts. He also reported difficulty concentrating and is hypervigilant, jumpy and has an exaggerated startle response. Dr. H.J. noted that the Veteran seems to be a reliable historian. His mood was anxious and depressed. His affect was congruent to his mood. The Veteran denied any auditory or visual hallucinations. He denied any suicidal ideation or homicidal ideation. There was no evidence of any psychosis or delusions. Some cognitive impairment was noted however, Dr. H.J. noted that it was unclear if it is related to the Veteran’s psychiatric diagnosis or if it was primary. The Veteran was diagnosed with PTSD, major depressive disorder, moderate to severe, and panic disorder with agoraphobia. He was prescribed medications and encouraged to enter therapy. The Veteran was afforded a VA examination in May 2012. The claims file was reviewed. The examiner opined that the Veteran experienced 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. It was noted that the Veteran had two adult children with whom he got along fine, as well as five grandkids who he enjoys. The Veteran did report he was sometimes briefly irritable with them if they make sudden, loud, and unexpected noises that startle him. He stated that he has good relationships with his siblings and had been married for 45 years. It is noted that he does have some friends and goes to church. In fact, he was an usher until his leg worsened. He indicated that he goes out to eat and has enjoyed attending high school football and basketball games. He attends the grandkids sporting events. He has been on Veteran fishing trips in the past and sometimes goes to the American Legion. He travels to Richmond to visit his son and grandkids and will sometimes go to a movie or a restaurant. He goes on errands such as grocery shopping and Walmart. He reports avoiding very large, tightly packed, crowds due to some vigilance-related anxiety, but as noted above, seems to do fine getting out in many public situations. Occupationally, it was noted that the Veteran worked at a tire company for 31 years and took regular retirement about seven years ago at the age of 62. He reported that he did his job, showed up and had no significant problems at work. The Veteran had no mental health treatment history until he was referred by a “friend” to a psychiatrist. The Veteran estimated that he began seeing the private psychiatrist about 2-3 years ago. The Veteran reported that he sees the private psychiatrist about once every six months. The Veteran has been prescribed medication and states that he takes it regularly however, it is not clear that he takes them on a regular basis. He reported that the medication seems to help initiate sleep, but he generally sleeps only 4-6 hours. He endorsed difficulty falling or staying asleep, hypervigilance, and an exaggerated startle response. Symptoms included anxiety and chronic sleep impairment. Examination of the Veteran showed that he presented as friendly and cooperative. His affect was generally broad, and his mood was overall euthymic. He became mildly dysphoric and slightly tearful when the examiner pressed him for details of some combat trauma experiences, though he recovered after a short time. Eye contact, behavior and speech were all normal. He denied any problems with suicidal or homicidal ideation. There were no delusions or hallucinations. He denied full blown panic attacks. His memory was grossly intact, and no significant deficits were noted on examination. He does note occasional hypervigilance and anxiety in very large, tightly packed crowds and tends to avoid those, but as noted above, seems to get out in many typical public places just fine. Unfamiliar roads cause anxiety so he likes to drive close to home. This does not seem pervasive throughout his life, but involves a fear of heights, particularly driving over bridges and on higher hills and mountains. He denied problems with pervasive depression and did not appear depressed. He reported his mood is usually content or in the middle. He seemed to have continued interest and enjoyment in things. Impulse control is adequate with no severe anger outbursts. He reported that intrusive memories of trauma cross his mind daily and at night when awake he may think of it and it makes him nervous. He stated that he used to have dreams/nightmares of the war more frequently and while he reports they sometimes still occur, he reported it was “not often.” Some things trigger bad memories and upset him such as war movies/tv shows, Chinese restaurants and he avoids them as well as avoids talking of war trauma. He does not like people close behind him. Concentration was adequate and he denied any significant problems with high irritability or chronic anger/irritability, other than occasionally snapping at grandkids. He was capable of managing his own financial affairs. In the Veteran’s April 2013 NOD, he contended that his symptoms were so severe as to warrant a rating of 70 or 100 percent or a TDIU. In addition, the Veteran argued that the RO disregarded the medical opinion of the treating psychiatrist. However, the Board has considered the April 2011 opinion of Dr. H.J. along with all the evidence of record. While Dr. H.J. noted that the Veteran felt distant and cut off from people, and reported that he does not have friends and does not go places, the most probative evidence of record establishes that the Veteran was able to keep a good relationship with his late wife of more than 50 years. In addition, the Veteran reported that he has a good relationship with his two adult children and his grandchildren and often attends their sporting events. The record further demonstrates that the Veteran has indicated that he has a few long-time friends that he sees and attends activities with. The record reflects that the Veteran has attended church and has worked as an usher at church. The Veteran underwent a second VA examination in May 2014. The examiner did not review the Veteran’s claims file but only the VA treatment records. The psychologist opined that the Veteran experienced 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. The Veteran reported that he remains married to his wife of 45+ years and they are doing “not bad.” He has five grandchildren and states that he sees the ones in Virginia frequently. He reported that he will go to his grandchildren’s games and track meets. He reported that he and his wife go out to eat and attend church, although he states he is not as active in his church as in the past due to problems with his legs. He has no other organizational involvement. He accompanies his wife on shopping trips. He will take his grandchildren to the movies sometimes. He reported that he has some life-long friends with whom he will got to games and cookouts with. He reported having difficulty driving on bridges and on roads he is not familiar with. He reported that he takes medication for sleep and anxiety but doesn’t feel like it is helping very much as he remains quite anxious, particularly around the driving issue. He does not drink, use drugs, or smoke. He reported symptoms of a depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty concentrating, diminished interest in pleasurable activities, exaggerated startle response, hypervigilance, distressing dreams/nightmares, psychological distress to cues, physiological distress to cues, avoidance of thoughts, feelings, conversations related to trauma, avoidance of activities, places, people, and reminders of trauma, detachment/estrangement from others, and persistent and exaggerated negative beliefs or expectations about oneself, others, or the world. The Veteran presented early for his appointment and was cooperative. His hygiene was good. His mood appeared generally euthymic though he became distressed when discussing feeling of suicide and anxious when speaking about his difficulties with driving. His affect was generally appropriate and broad though he became tearful when discussing suicidal ideation. He denied experiencing hallucinations or delusions. The Veteran reported occasional passive suicidal ideation. He stated that it occurs occasionally, and he doesn’t dwell on it. He denied plan or intent and has no past suicide attempts. He stated that his religious beliefs and concern for his family would inhibit him from acting upon these thoughts. The Veteran denied homicidal ideation. He is not at imminent risk to harm himself or others. The Veteran is capable of managing his financial affairs. The psychologist opined that the Veteran did meet DSM 5 criteria for PTSD. The psychologist rationalized that the Veteran’s functional impairment is primarily in the social arena as he is retired. His problems with anxiety while driving restrict his movement leading to decreased social involvement in an effort to avoid places with which he is unfamiliar. This is also decreasing familial involvement as he has decreased his participation in his grandchildren’s activities and refused to take a trip to Okinawa to visit his son and his family. The Veteran was afforded a third VA examination in July 2019 at which time the psychologist opined that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran presented as polite, soft-spoken and appropriately dressed. He was pleasant and fully cooperative but somewhat reticent requiring encouragement to elaborate on answers to questions. His mood appeared somewhat dysphoric and anxious, although he did demonstrate full range of affect; smiling when discussing his enjoyment of his niece, becoming tearful discussing Vietnam memories. He reported chronic sleep problems but good appetite. There was no evidence of perceptual disturbance and cognition is within normal limits. The psychologist reported that since the last exam, the Veteran remains married to his wife of 50 years and reports spending most of his time at home and avoiding large crowds. The Veteran stated that he has some contact with his 2 adult children and one brother and enjoys going to church each week. He reported anxiety with travel and feels like his life is socially limited. He has few social contacts outside his family and people in church. The Veteran remained retired after 31 years working at a tire factory. Although the Veteran has been seeing a VA psychiatrist in past years, he reports that he stopped seeing him over a year ago and stopped all psychiatric medications. He reported ongoing symptoms of anxiety, transient depression, and some intrusive memories, but he feels he handles them best by avoiding situations that trigger memories or anxieties. The Veteran reported drinking a glass of wine on rare occasions but says he is not a drinker and never has been. He denied any use of illicit drugs. He reported symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a work like setting. The psychologist concluded that the Veteran is capable of managing his financial affairs. The psychologist concluded that the Veteran is continuing to experience symptoms of PTSD sufficient to satisfy DSM diagnostic criteria, although many of these symptoms do not appear severe because of his avoidant behaviors. His experience of dysphoria appears to be related to what he considers a very restricted life (due to anxiety when traveling or in social settings outside his family) and he feels guilty that he is interfering with his wife’s enjoyment of life. The psychologist noted that the Veteran’s primary ongoing PTSD-related impairment is social rather than occupational. The psychologist noted that although the Veteran reported continuing to have distressing service-related dreams at times and intrusive upsetting memories when triggered, he does not appear to be having regular flashbacks at this time. Prior to August 19, 2019, the Veteran’s PTSD has been primarily manifested by intrusive and recurring thoughts, distressing dreams, reexperiencing events via nightmares, exaggerated startle response, feelings of vulnerability, avoidance, increased arousal, hypervigilance, panic attacks, angry outbursts, and irritability. The Board finds the Veteran’s symptomatology and total disability picture for the period prior to August 19, 2019, does not rise to the level of occupational and social impairment with reduced reliability and productivity. In April 2011, Dr. H.J. reported that the Veteran exhibited symptoms of PTSD, moderate to severe major depressive disorder, and panic disorder with agoraphobia. The May 2014 and July 2019 VA examiners opined that the Veteran’s psychiatric symptoms exhibited 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. The Board affords the May 2014 and July 2019 opinions great probative weight as they are based on consideration of the Veteran’s lay reports of symptoms and examination of the Veteran, they directly address the applicable rating criteria, and are consistent with the most probative evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency, but is generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. While the Veteran did experience symptoms contemplated by a 50 percent rating, including disturbances of mood and panic attacks, the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. The Veteran’s other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. The preponderance of the evidence is against a finding that he experiences hallucinations, or delusions associated with PTSD. Although the May 2014 examiner indicated that the Veteran experienced passive suicidal ideation, the Veteran stated that he would never act on it. The examiner noted that the Veteran was not at risk of harming himself or others. In Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017), it was noted that “the presence of suicidal ideation alone . . . may cause occupational and social impairment with deficiencies in most areas.” However, the Board concludes that the severity, frequency, and duration of the Veteran’s reported suicidal ideation has not risen to the level contemplated by a 70 percent or 100 percent disability rating. See Vazquez-Claudio, supra. Notably, a review of the record reveals that the Veteran has otherwise consistently denied suicidal ideation throughout the period on appeal. For example, in April 2011 and May 2012, the Veteran denied suicidal or homicidal ideation, so even if he felt distressed and tearful in May 2014, he explicitly said he doesn’t dwell on it, he would never act on it, and the record does not reflect prior attempts of suicide. The Board notes that occasional instances of passive thoughts of suicide, where the Veteran does not dwell on it, does not nearly approximate occupational and social impairment with reduced reliability and productivity or occupational and social impairment, with deficiencies in most areas and does not rise to the level of severity contemplated by a 50 percent or 70 percent disability rating. Even assuming arguendo that these instances of passive thoughts of suicide more nearly approximated occupational and social impairment with reduced reliability and productivity or with deficiencies in most areas, assigning an increased rating for these discrete, limited periods would violate the rule regarding stabilization of ratings. 38 C.F.R. § 3.344. With respect to social impairment the record reflects that the Veteran was able to establish and maintain a relationship with his late wife of more than 50 years. In addition, he stated that he has a good relationship with his 2 adult children and his grandchildren, and he attends church regularly. In fact, he served as an usher at church, but a non-service-connected leg disability required him to stop doing so. The record shows that he has a few life-long friends with which he socializes and attends events with. This shows that he is able to establish and maintain effective relationships. Regarding occupational impairment, the Veteran himself has reported that he retired in 2004 from a tire company and although it was “rough work” he stated that it took his mind off of things. The Board thus finds that the Veteran has not exhibited occupational and social impairment which more nearly approximates the severity contemplated by a 50 or 70 percent evaluation from March 25, 2011 through August 19, 2019. As the Veteran’s symptomatology does not rise to the level of occupational and social impairment with reduced reliability, an initial rating in excess of 30 percent is not warranted for his PTSD from March 25, 2011, through August 19, 2019. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified 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. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (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. Id. It is the established policy of VA 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. 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. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Service connection is only in effect for PTSD, rated as 30 percent disabling from March 25, 2011, and 100 percent disabling effective August 19, 2019. Further, as discussed above, the Board has restored the 100 percent rating, effective March 1, 2021. Thus, the Veteran does not meet the schedular criteria for TDIU, prior to August 19, 2019, under 38 C.F.R. § 4.16(a). The Board again notes that, from August 19, 2019, entitlement to a TDIU is moot as the Veteran is receiving 100 percent schedular rating for PTSD, his only service-connected disability. The Board further finds that the evidence of record does not substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected PTSD prior to August 19, 2019. Ray, supra (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities). In reaching its determination that the evidence does not substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected PTSD, the Board has considered his history, education, skill, and training, as well as his physical and mental abilities to perform the types of activities required by employment. As noted above, the record reflects that the Veteran retired in 2004 from a tire company, a job which he performed for 32 years. It was reported that this job required him to deal very regularly with other people. In addition, the Veteran often attended church and worked as an usher until his non-service-connected leg disability prevented him from doing so. This indicates that in some situations the Veteran was able to interact with other people. The Board affords great probative weight to the opinions of the May 2014 and June 2019 VA examiners that the Veteran experienced 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. The Veteran remained fully capable of performing activities of daily living during the period on appeal. In addition, the Veteran has consistently been oriented to all spheres and his thought processes have been within normal limits. Prior to August 19, 2019, the Board cannot find that the Veteran was fully precluded from securing and following all forms of substantially gainful employment consistent with his skillset, particularly in an environment with little to no contact with the general public, due solely to service-connected PTSD. The question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran is actually employed or can find employment. Van Hoose, supra. In this case, the most probative evidence establishes that the Veteran was not unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. Although his service-connected PTSD quite clearly impaired his ability to interact with others, the record reflects that he was capable of performing employment activities, particularly when those activities would involve minimal interaction with others. Questions of credibility notwithstanding, even assuming arguendo that the Veteran’s primary reason for retirement in 2004 was due to psychiatric symptoms, the most probative evidence establishes that he developed appropriate coping mechanisms and that he was capable of the mental and physical acts required by employment for the period on appeal. While the Board recognizes the limitations that the Veteran faced due to his service-connected PTSD, these limitations were considered in the disability rating he received for that disability. Again, the assignment of the schedular rating is recognition of the functional limitations caused by his disability, and such rating contemplates the severity and overall impact the symptoms of his service-connected disability has on his life. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages represent the average impairment in earning capacity resulting from such diseases and injuries and their residuals in civil occupations). However, despite these limitations, the Board finds that the most probative evidence shows that the Veteran was not unable to secure or maintain substantially gainful employment due to his service-connected PTSD. Rather, the Board finds that the Veteran was capable of performing the physical and mental acts required for employment prior to August 19, 2019. In sum, the most probative evidence establishes that prior to August 19, 2019, the Veteran was not unable to secure or follow a substantially gainful occupation by reason of his service-connected PTSD and extraschedular referral is not warranted. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.