Citation Nr: 21010807 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 09-42 765 DATE: February 25, 2021 ORDER From ¬¬¬¬¬August 21, 2008 to February 2, 2013, entitlement to a disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to a rating in excess of 70 percent for PTSD is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from August 21, 2008 is granted. FINDING OF FACT 1. Throughout the entire period on appeal the Veteran’s PTSD is manifested by symptoms producing, at worst, occupational and social impairment with deficiencies in most areas; however, total social and occupational impairment has not been demonstrated. 2. From August 21, 2008 the Veteran’s service connected disabilities have precluded substantial and gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for PTSD have been met for the period from August 21, 2008. 38 U.S.C. § 1115; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1115; 38 C.F.R. § 4.130, DC 9411. 3. The criteria for a TDIU from August 21, 2008 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1967 to May 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. During the course of the appeal, the claims file was transferred to the RO in Indianapolis Indiana. The appeal was previously remanded to ensure a complete record upon which to decide the issues on appeal. It has returned for adjudication. This appeal stems from the Veteran’s August 21, 2008 claim for an increased rating. In its February 2017 Remand, the Board determined that a claim for TDIU had been raised by the record in connection with the increased rating claim. The AOJ issued a decision in July 2020 that awarded TDIU, effective from February 25, 2013. The Veteran has not expressed disagreement with that award. However, the issue of entitlement to TDIU prior to February 25, 2013 is still pending to the extent that it is intertwined with the increased rating claim. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). For that reason, the TDIU issue will be addressed herein. INCREASED RATING Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.3. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran PTSD is rated under DC 9411 which provides a 30 percent rating is assigned when a veteran’s PTSD causes 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), duet to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such asa forgetting names, directions, events). A 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial; circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is prescribed when there is evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. 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. See Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002).   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. See Bankhead v. Shulkin, 39 Vet. App. 10, 22 (2017); 28 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Service connection for PTSD was granted in January 1995. A 10 percent rating was assigned. By a rating decision dated in January 1998, the 10 percent rating was increased to 30 percent, effective from October 1997. The Veteran filed the present claim for an increased rating for his PTSD in August 2008. In a May 2013 rating decision, the RO assigned a 50 percent disability rating for PTSD from October 25, 2010 to February 24, 2013, and a 70 percent disability rating from February 25, 2013. Thereafter, in a June 2016 rating decision, the RO assigned an effective of September 30, 2009 for the assignment of a 50 percent rating for PTSD. Such set-up three staged ratings. Following his August 2008 claim, the Veteran was afforded an October 2008 VA examination. He reported retiring from his railroad job in 2006. While he was a reliable employee and got along with others, he was glad to be able to retire and avoid stress. The Veteran reported that he didn’t like to socialize much but may go to the American Legion to drink. He reported having a supportive wife and maintaining a relationship with his children, less so to extended family. The Veteran reported nightmares, intrusive thoughts, irritability, and depression. The examination reported that since retiring, the Veteran has become more withdrawn, isolated, less active, and his drinking has increased. However, the examiner did not report any inappropriate behaviors, suicidal or homicidal ideations, or problems with activities of daily living. At the time of the examination, the Veteran appeared clean and appropriately dressed. The examiner reported the Veteran’s attitude was cooperative, friendly, relaxed, and attentive.   In April 2009 the Veteran’s counselor provided a letter describing the severity of the Veteran’s PTSD. According to the Counselor, who the Veteran had seen on a regular basis since March 2008, the Veteran used alcohol and prescription drugs to avoid feelings related to trauma. The counselor identified the Veteran as having a pattern of ongoing suicidal thoughts, self-destructive behavior, and survivor’s guilt related to Vietnam. The counselor further noted the Veteran experienced frequent panic attacks and coping with alcohol. According to the counselor, the Veteran is not employable. Although multiple VA examinations contain negative reports of suicidal ideation, medical treatment records support the counselor’s conclusions and show a history of suicidal ideation throughout the period on appeal. March 2008 counselor’s notes showed the Veteran was not coping well with retirement and had suicidal thoughts to the extent of purchasing a handgun. At that time the Veteran also reported that he felt bored and had no purpose. Additionally, May 2008 group therapy records note that the Veteran suffers from survival guilt. Notes from an April 2010 session state the Veteran has experienced survival guilt and has had ongoing suicidal ideation as a way out, but that his family gives him hope. In a June 2011 session, the Veteran stated he had ongoing thoughts of suicide and felt his quality of life was zero. In a November 2012 session, the Veteran again mentioned suicidal ideation, but stated he would not want to put his family through that. The Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Consistent with Bankhead, the record discloses multiple instances throughout the period on appeal where suicidal ideation was reported and/or discussed. In addition to the Veteran’s repeated instances of suicidal ideation, medical treatment records and VA examinations illustrate a history of the Veteran’s dependence on alcohol. March 2008 treatment records noted the Veteran had increased his alcohol consumption and was binge drinking. At that time he stated he was not pleased with his use of alcohol. May 2008 treatment records noted the Veteran was worried about overspending while drinking and gambling. He reported that his wife was not pleased with his use of alcohol and it was affecting their marriage. VA examinations from October 2010 and most recently December 2019 show the Veteran consistently dealing with irritability, anxiety, trouble sleeping, recurring nightmares and instances of social isolation. In the Veteran’s most recent examination, the examiner opined the Veteran’s symptoms related to PTSD including depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty adapting to stressful circumstances could impair the Veteran’s ability to perform occupational tasks. The examiner opined that it is plausible to suggest the Veteran’s symptoms could significantly limit the Veteran’s ability to maintain employment in particular work settings, such as those that involve extensive interpersonal interaction and the completion of complex tasks. Thus, upon review of the entire record, and after resolving all doubt in his favor, the Board finds that the Veteran’s symptom picture is most consistent with a single 70 percent rating since the time the Veteran filed his claim in August 2008. The Board has considered whether a 100 percent rating may be applied. However, a 100 percent rating is not demonstrated by the evidence of record, as the Veteran’s PTSD is not manifested by total social impairment. 38 C.F.R. § 4.130, DC 9411. While the Veteran’s has had ongoing sleep problems, anxiety, irritability, social isolation, and a record of suicidal ideations, he has maintained a stable marriage of 22 years with his wife and relationships with other family members. Though he has experienced trouble making friends, he has maintained a relationship with his wife, children, and grandchildren. He also reports spending time with other Veterans and being involved with a local Veterans group/association. The constellation of these relationships and interactions belies a finding of total social impairment. In addition, he did not exhibit gross impairment in thought processes, or communication; persistent delusions or hallucinations; grossly inappropriate behavior, an inability to maintain hygiene; time and spatial disorientations; or memory loss for the names of close relatives, occupation or his own name. The Board acknowledges the Veteran’s assertion that he is entitled to an increased rating and his competent and credible lay statements describing his symptomology. Nevertheless, even considering these statements, the weight of the medical and lay evidence does not show total social and occupational impairment. Moreover, the Board notes that with respect to the rating schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. Following consideration of the claims file, entitlement to a rating of 70 percent, but no higher, is warranted for the periods on appeal. TDIU A TDIU will be granted when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Employment may be marginal even when the Veteran’s earned income exceeds the poverty threshold if the Veteran is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, there must 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). By virtue of the decision herein, the Veteran has been assigned a 70 percent rating for his PTSD from August 21, 2008. His combined disability rating thereby meets the schedular criteria for the award of a TDIU from August 21, 2008. The Veteran has consistently argued that he is unable to obtain and maintain substantially gainful employment due to his disabilities. He has a high school diploma and was fully employed as a railroad engineer until January 2007. Since that time, the Veteran has worked occasionally, but the employment was marginal and there is no evidence of substantial gainful employment. In a March 2017 statement in support of his TDIU claim, the Veteran stated that since 1994 he has really tried to work, but on account of his disabilities he is experiences significant limitations. October 2010 notes from a psychologist indicate that the Veteran sought a part time job at a local landfill, but could not tolerate the stress of having to deal with details and records. Reference is again made to the April 2009 statement from his Vet Center counselor, who indicated that the symptoms of the Veteran’s PTSD rendered him unemployable. A December 2019 VA examination similarly indicated that the symptoms inherent in the Veteran’s diagnosis significantly limit his ability to maintain employment in work settings that necessitate extensive interpersonal interaction and the completion of complex tasks. Thus, based on the foregoing, and after resolving all doubt in his favor, the Board finds that the Veteran’s service-connected PTSD renders him unable to secure and follow a substantially gainful occupation since his date of claim – August 21, 2008. Finally, the Board notes that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. An award of entitlement to TDIU predicated on a single disability may form the basis for an award of SMC. Here, while the award of TDIU has been essentially based on the Veteran’s PTSD, he would not otherwise meet the requirements for SMC. His remaining service-connected disabilities result in a combined disability rating of 30 percent. See 38 C.F.R. § 4.25. Such falls short of the criteria for making the Veteran eligible for SMC. See 38 U.S.C. § 1114. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.