Citation Nr: 21010972 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-15 855 DATE: February 26, 2021 ORDER Entitlement to a rating greater than 70 percent for service-connected post-traumatic stress disorder (PTSD) denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to September 28, 2015, is denied. From September 28, 2015, entitlement to a TDIU based on a single disability is denied. FINDINGS OF FACT 1. The Veteran’s psychiatric disorder was manifested by occupational and social impairment with deficiencies in most areas, but the severity, frequency, and duration of his symptoms did not more closely approximate total occupational and social impairment. 2. Prior to September 28, 2015, the evidence of record demonstrates that the Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. 3. From September 28, 2015, there is no evidence that a single disability resulted in an inability to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130 DC 9411. 2. Prior to September 28, 2015, the criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.16. 3. From September 28, 2015, the criteria for a TDIU based on a single disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1997 to April 2005 and November 2007 to April 2009. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an August 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in July 2019. In pertinent part, the Board directed that additional record development be undertaken, and to schedule the Veteran for a contemporaneous VA examination. That development having been completed, the Board finds substantial compliance with its remand instructions. 1. Entitlement to an initial rating greater than 70 percent for service-connected post-traumatic stress disorder (PTSD). Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation should be applied to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will analyze the evidence of record to determine the Veteran’s current levels of disability. In doing so, the Board first notes that it has reviewed all of the evidence in the Veteran’s claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. The Veteran’s service-connected psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders. Relevant to the issue on appeal, under the General Rating Formula for Mental Disorders, a 70 percent disability rating is assigned for 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 that is 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. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran’s own occupation or name. Id. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather 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). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Turning to the relevant evidence of record, the Board finds that the Veteran’s PTSD symptoms do not result in a total impairment of social and occupational functioning as required for a 100 percent rating. Initially, the Veteran was afforded a June 2015 VA examination to determine the severity of his service-connected PTSD. The VA examiner found that although the Veteran was diagnosed with PTSD, the VA examiner found that his symptoms were not severe enough to either to interfere with occupational and social functioning or to require continuous medication. At that this time, the Veteran reported living with his fiancé of three years. The Veteran reported three prior marriages that ended in divorce. He also reported seeing his daughter very infrequently. The Veteran stated that he was working part-time at the commissary, prior to that he was employed full-time at a water treatment plant. The Veteran alleges that he was fired due to the inability to get along with his boss, drinking on the job, and attendance issues, however he also indicated that it was deemed a voluntary resignation. The Veteran reported legal complications with one DWI and three assault charges. The VA examiner assigned the symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment to the Veteran’s psychiatric disability. The August 2016 VA examination report assigned occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood due to his service-connected PTSD. The Veteran reported having a great relationship with his current wife and stated that he has close relationships with his children. His relationship with his parents was described as ok and he reported little contact with his sister. The Veteran stated that he stopped working due intolerance for others and his diagnoses of multiple sclerosis (MS). The symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting were attributed to the Veteran’s PTSD. The Veteran also noted that the Veteran experiences self-isolation, social avoidance, nightmares, irritability, and hypervigilance. The December 2019 VA PTSD examination report assigned occupational and social impairment with reduced reliability and productivity due to the Veteran’s PTSD. The Veteran continued to describe his relationship with his current wife as a great. The Veteran reported that he does not have a relationship with children, after reporting being close with them in August 2016. The Veteran stated that he stopped working in 2015 due to his MS diagnosis. Upon examination, the Veteran’s thought content and process were coherent and organized. He denied any suicidal or homicidal intent. The symptoms of anxiety, suspiciousness, mild memory loss, impaired judgment, impaired impulse control, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting were attributed to the Veteran’s PTSD. The October 2020 VA PTSD examination report assigned occupational and social impairment with reduced reliability and productivity due to the Veteran’s PTSD. During the examination, the Veteran reported having a strained relationship with his wife and children due to his mental difficulties. The Veteran reported that his father is his only close friend. The Veteran denied being reprimanded for poor work performance, or behavior problems at his last place of employment. The VA examiner identified the symptoms of anxiety, panic attacks, mild memory loss, and difficulty in adapting to stressful circumstances, including work or a worklike setting as being manifested by the Veteran’s PTSD. The Veteran expressed experiencing crowd avoidance, verbal outburst, 2-3 panic attacks a week. The Veteran denied suicidal and homicidal intent. After considering all the evidence, the Board finds that, throughout the relevant rating period, the Veteran’s service-connected psychiatric disability does not meet the criteria for a 100 percent rating. During that period the Veteran’s service-connected psychiatric disability manifested in symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, impaired impulse control, social avoidance, irritability, hypervigilance, mild memory loss, panic attacks, disturbances of motivation and mood, difficulty in adapting to stressful circumstances (including work or a worklike setting), and the inability to establish and maintain effective relationships. The frequency, severity, and duration of these symptoms do not equal or approximate the severe symptoms as described by the 100 percent rating, including forgetting one’s own name, disorientation to time or place, or grossly inappropriate behavior. Though the Veteran certainly has many symptoms of a high severity, they simply do not approximate those described by the 100 percent rating. Furthermore, the Veteran’s symptoms have not resulted in total occupational and social impairment. With regard to his occupational functioning, the Veteran has stated that he stopped working 2015 due to his MS diagnosis. Prior to his diagnosis, the Veteran worked part-time at the commissary and eight-years full-time at a water treatment plant. The Veteran reported leaving the job due to intolerance of others, drinking on the job, and difficulty getting along with others, however the Veteran also denied being reprimanded for any issues at work. Either way there is no evidence that the Veteran’s symptoms approach the level of total occupational impairment. With regards to social impairment, the Veteran has offered varying reports of his interpersonal relationships. The Veteran described his relationship with wife as great, but also strained due to his psychiatric disorder. The Veteran’s relationship with his children has ranged from being close with them to having no relationship at with his children. The Veteran reported his father as his only close friend. Though this shows deficiencies in his social engagement, in no way does this approximate or equal total social impairment as required for a 100 percent rating. In summary, the Board finds that, for the service-connected psychiatric disability, a rating of 100 percent is not warranted at any time during the relevant rating period. 2. Entitlement to a TDIU. VA will grant a TDIU when the evidence shows that the veteran is precluded, because of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in a TDIU claim 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). A total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of whether a veteran satisfies the above percentage evaluations. 38 C.F.R. § 4.16(b). In such a case, the Board may not assign a TDIU without ensuring that the claim is referred to VA’s Director of Compensation Service (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. The assignment of a 100 percent combined disability rating does not necessarily render the issue of TDIU moot in all cases. See Buie v. Shinseki, 24 Vet. App. 242, 247 (2011) (noting the VA’s general duty to maximize a veteran’s benefits). The VA’s duty to maximize benefits provides that, when a veteran becomes eligible for special monthly compensation, the Board must consider whether he is entitled to receive special monthly compensation pursuant to 38 U.S.C. § 1114(s) without having to file a separate claim. Buie, 24 Vet. App. at 247 (citing Bradley v. Peake, 22 Vet. App. 280, 294 (2008)); see also Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (noting VA’s policy to consider special monthly compensation where applicable). The statute provides, in pertinent part: “If the veteran has a service-connected disability rated as total, and... has additional service-connected disability or disabilities independently ratable at 60 percent or more,” then VA will award him special monthly compensation. 38 U.S.C. § 1114(s). The pertinent part of the implementing regulation provides: “The special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and... [h]as additional service-connected disability or disabilities independently ratable at 60 percent.” 38 C.F.R. § 3.350(i)(1). In this case, there are two distinct periods for analysis. First, the Board considers the Veteran’s claim for a TDIU prior to September 28, 2015, the date that additional service-connected disabilities resulted in his being award a 100 percent rating. Prior to September 28, 2015, the Veteran had 5 service-connected disabilities, together evaluated as at least 80 percent disabling, which does establish eligibility for a schedular TDIU rating. Thus, the question for the Board is whether the Veteran’s service-connected disabilities, prior to September 28, 2015, prevent the Veteran from securing or following a substantially gainful occupation. The Veteran’s submitted formal applications for a TDIU indicated that the Veteran contends that his PTSD has prevented him from securing or following a substantially gainful occupation. The Veteran’s June 2015 VA examination related to his PTSD during this period found the Veteran’s PTSD symptoms to be not severe enough to either to interfere with occupational and social functioning or to require continuous medication. The Veteran reported working part-time at the commissary. Prior to that the Veteran worked full-time at a water treatment plant. The Veteran reported conflicting reports of his exit from the water treatment plant. The Veteran stated he was fired due to the inability to get along with his boss, drinking on the job, and attendance issues. The Veteran also stated that the termination was determined to be a voluntary resignation. There is no indication that the Veteran’s service-connected right shoulder dislocation, tinnitus, ulnar neuropathy, and left shoulder dislocation either individually or combined prevented the Veteran from securing or following a substantially gainful occupation, prior to September 28, 2015. The record indicates that the Veteran has expressed that he stopped working since his MS diagnosis in 2015. The Board notes that between April 2015 to September 2015, the Veteran was not service-connected for MS, as such the Board is unable to consider this disability. In light of the above, the Board finds that the Veteran’s service-connected disabilities did not render him unable to secure and maintain substantial and gainful employment. Despite the Veteran’s report of occupational difficulties due to his service-connected PTSD, the Board notes that the June 2015 VA examiner found the Veteran’s PTSD symptoms to be not severe enough to either to interfere with occupational and social functioning or to require continuous medication. The Veteran’s formal applications for a TDIU solely designate his PTSD as the source of his alleged inability to secure and follow a gainful occupation. The objective medical evidence of record certainly establishes that the Veteran’s service-connected disabilities would make finding employment more difficult. However, the legal standard is not simply whether the Veteran’s occupational capacity is impacted by his disabilities; indeed, the entire point of the VA disability rating system is to compensate veterans for the impact that their disabilities have on their occupational outlook. Instead, the question is whether the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. That burden, quite simply, is not met for this time period. In summary, for the period prior to September 2015, the Board finds that the evidence does not demonstrate that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The weight of the evidence is against the Veteran’s claim; there is no doubt to be resolved. Entitlement to a TDIU prior to September 28, 2015, is denied. From September 28, 2015, the Veteran has been in receipt of a 100 percent combined schedular rating. This period coincides with the addition of the Veteran’s MS to his list of service-connected disabilities. Despite his receipt of a 100 percent rating, the Board must determine whether any one of his disabilities singularly resulted in an inability to secure or follow a substantially gainful occupation, thereby qualifying him for special monthly compensation. There is, however, no evidence for this period indicating that one of his disabilities alone would result in an inability to secure or follow a substantially gainful occupation. The Board has already discussed the impacts from the Veteran’s service-connected PTSD; while he has a number of other disabilities as well, there is no evidence that any of these disabilities, to include MS, would singularly result in an inability to secure or follow a substantially gainful occupation. Accordingly, from this point forward, the Board finds that entitlement to a TDIU based on a single disability is not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins, 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.