Citation Nr: 21010841 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-60 064 DATE: February 25, 2021 ORDER Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. For the entire period under consideration, the Veteran’s PTSD has not resulted in manifestations that more nearly approximate total occupational and social impairment. 2. During the applicable appeal period, the Veteran’s service-connected disabilities alone did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9411. 2. The criteria for a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. These matters were remanded to the agency of original jurisdiction (AOJ) in December 2018 by the Board of Veterans’ Appeals (Board) for further development. Indeed, the Board found that the evidence in the record reflected that there may be outstanding and relevant Social Security Administration (SSA) records. In September 2019, the SSA indicated that there were no SSA records available pertaining to the Veteran. 1. Entitlement to a rating higher than 70 percent for PTSD A July 2014 rating decision granted the Veteran’s service connection claim for PTSD and assigned a 70 percent rating. In April 2016, he submitted a claim for an increased rating. After a review of the medical and lay evidence, the Board finds that the Veteran’s symptoms do not more nearly approximate a rating of 100 percent as they are not of such a severity or frequency to result in total occupational and total social impairment. There is no medical or lay evidence in the record during the period on appeal of audio or visual hallucinations, gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; or disorientation to time or place. The Veteran’s PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Code 9411. Ratings are assigned according to the manifestation of particular symptoms. However, 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Code. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned when the psychiatric condition produces 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational or 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. During the September 2016 VA examination, the Veteran’s symptomatology exhibited difficulty in adapting to stressful circumstances; occupational and social impairment, with reduced reliability and productivity; disturbances of motivation and mood, anxiety, depressed mood; suicidal ideation; and chronic sleep impairment. VA treatment records show no continuous treatment for his PTSD. The Board finds that, collectively, the above-described evidence reflects that throughout the period under consideration, the Veteran’s psychiatric symptoms have not been shown to be of the type, extent, frequency, or severity as the symptoms expressed in the rating schedule to support a 100 percent evaluation. At no time has the Veteran reported, and the record fails to show, auditory hallucinations, gross impairment in thought processes or communication, persistent delusions, 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-the symptoms listed in the rating criteria as indicative of the level of impairment for which a 100 percent rating is assignable. Further, VA treatment records do not document, nor has any VA examiner found, that the Veteran has total occupational and total social impairment due to his PTSD. VA treatment records show that he has supportive family and/or friends. Indeed, he has been living with his wife of 50 years. He appears to have a good relationship with his adult children; as well as his grandchildren. He reported that he turned over his business to his wife and son several years prior because of essential tremors. The probative evidence of record demonstrates that the Veteran’s functioning is better than total occupational and total social impairment. In fact, the Veteran has been found to have occupational and social impairment with reduced reliability and productivity. Although the Veteran’s PTSD has showed a slight decrease in severity, the Board finds that the Veteran’s symptomatology is more nearly approximates his current 70 percent rating. The Board finds, however, the total disability picture does not more nearly approximate total occupational and total social impairment. The Board makes this finding based both upon the evidence of record and the Veteran’s statements. Under these circumstances, the Board finds that the Veteran is not shown to have experienced symptoms of the type, extent, frequency, and severity to result in total occupational and social impairment as contemplated by the rating criteria for a 100 percent rating. The 70 percent rating currently assigned is recognition of the significant occupational and social impact of his service-connected PTSD. In other words, the total disability picture does not support a finding of a higher rating. Indeed, his symptoms impair him socially and occupationally, but not to a level that would warrant a higher rating. For the foregoing reasons, the Board finds the claim for a rating higher than 70 percent for the PTSD disability is denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The Board observes, however, as the preponderance of the evidence is against assignment of a higher rating at any pertinent point, that doctrine is not applicable. 2. Entitlement to a TDIU due to service-connected disabilities The Veteran asserts that his service-connected disabilities impact his employability. VA will grant a total disability rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing or following a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the securing or following of a substantially gainful occupation. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, 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). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). On the Veteran’s June 2016 application for individual unemployability, he indicated that he last worked full-time in a Dental Lab in June 2014. His highest level of education is high school graduate. On the VA Form 21-4192, it states that no concession could be given due to severe tremors. The fabrication of dentures is very intricate, and all motor skills are necessary. Fine motor coordination is necessary. The form states that the Veteran retired due to excessive anxiety and uncontrollable shaking. The Veteran has established service connection for PTSD at 70 percent disabling, type 2 diabetes at 20 percent disabling, and peripheral neuropathy of the upper and lower extremities at 10 percent disabling for each extremity. He satisfies the schedular requirements for entitlement to individual unemployability. During May 2016 VA Diabetes and Peripheral Neuropathy examinations, the examiner noted that the Veteran reported that his tremors interfere with fabrication of dentures. The examiner found no impact of the diabetic neuropathy on his ability to engage in employment. The examiner also stated that the tremors are not manifestations of his service-connected diabetes. During the September 2016 VA examination, the examiner indicated that the Veteran’s psychiatric condition did not prevent him from successfully operating a business until retiring by merit of age or length of employment. The examiner stated that the Veteran’s essential tremors, which are an unrelated neurological condition, prevented him from further engaging in this line of work. The Veteran, without regard to advancing age and nonservice-connected disabilities, can perform the physical and mental actions required for substantially gainful employment during the applicable appeal period. There is no question his service-connected disabilities have some impact on his employability. However, the combined 90 percent schedular evaluation in effect during that timeframe recognizes industrial impairment resulting from his service-connected disabilities. Additionally, it cannot consider the impact of his nonservice-connected disabilities on his employability, nor is the standard whether he can perform the mental and physical acts of his prior employment. For the reasons and bases set forth above, the preponderance of the evidence is against finding his service-connected disabilities alone are of such severity to preclude him from securing and following substantially gainful employment at any time during the appeal period. Although the Veteran sincerely believes his service-connected disabilities render him unemployable, he is not competent to determine whether he meets the criteria for a TDIU. Regardless, the decision of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”) The Board has the ultimate authority to decide whether the Veteran is employable. (Continued on the next page)   The Board finds that the most probative evidence does not show that the Veteran was unable to secure or maintain substantially gainful employment due to his service-connected disabilities alone. Therefore, his claim for TDIU is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.