Citation Nr: 21011449 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-29 228 DATE: March 1, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for the Veteran's post traumatic stress disorder (PTSD) disability rating is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD has manifested as occupational and social impairment with deficiencies in most areas, such as work, judgment, thinking or mood. 2. The preponderance of the evidence reflects that the Veteran’s service-connected disability did not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for the Veteran’s PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2028); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1987 to November 1991. The Veteran initially requested a Board hearing in his April 2015 Substantive Appeal Form 9. Letters were sent to the Veteran in February 2020, April 2020, and June 2020 to confirm his request for a hearing. The Veteran did not respond to any of the letters. In December 2020, the Veteran called in to VA requesting the status of his appeal and confirmed that he did not want a hearing. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is rated under the General Formula for Mental Disorders (General Formula), Diagnostic Code 9411. 38 C.F.R. § 4.130 (2020). Under the General Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under this Diagnostic Code, a 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause both total occupational and total social impairment. The evidence contains a private examination from March 2013. The Veteran experienced distressing intrusive thoughts, hypervigilance, nightmares, and depressive episodes. He also had a history of self-sabotaging behavior and became overwhelmed easily. The examiner also noted the Veteran experienced anxiety; suspiciousness; mild memory loss; speech that was illogical, obscure, or irrelevant; gross impairment in thought process or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. The Veteran engaged in obsessive counting, but it did not interfere with his life. The examiner opined that his disability caused occupational and social impairment that would decrease his work efficiency. In March 2014, the Veteran received a VA examination. The examiner noted the Veteran had bipolar disorder in addition to PTSD. The only symptoms attributed to his PTSD were his intrusive memories, anxiety, and avoidant behavior. His fluctuating moods and depression was due to his bipolar disorder. Additionally, the examiner noted that the Veteran experienced panic attacks that occurred weekly or less often, near continuous panic or depression, that impacted his ability to function, and flattened affect. The examiner determined that his PTSD symptoms caused the most impairment in social and occupational functioning. The examiner rated his overall disability as moderate and noted that while his incarceration negatively impacted his symptoms there would likely be some improvement now that he was no longer incarcerated. His most recent VA examination was in April 2019. He continued to report similar symptoms, but the examiner found that his bipolar symptoms could not be separated from his PTSD symptoms. Therefore all of the symptoms will be considered to be service connected. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The Veteran reported struggling with irritability, social isolation, and emotional detachment. He had a good relationship with his fiancée’s children and kept in contact with his children though social media. He also kept in touch with his stepmother, father, and adopted mother. The examiner noted there was no evidence of suicidal ideation, homicidal ideation, hallucinations, or delusions. The examiner rated his disability as causing occupational and social impairment with deficiencies in most areas such as work, family relations, judgement, thinking, or mood. The Board finds an increase in the Veteran’s PTSD disability rating above 70 percent is not warranted. A 100 percent rating requires both total occupational and total social impairment and the evidence does not show total social impairment. While the evidence shows the Veteran may have some discord in his relationship, he has continued his relationship with his fiancée. Likewise, he reported having a good relationship with his family despite feeling emotionally detached from them at times. The Veteran has difficulty with establishing and maintaining relationship and his self-isolating behavior. Nevertheless, the Board finds these PTSD symptoms are both contemplated by the 70 percent rating and do not meet the criteria for total social impairment. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). The medical and lay evidence of record does not show this level of social impairment. Therefore, the Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and an increased rating to 100 percent is denied. TDIU A TDIU rating may be assigned, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran’s only service-connected disability is PTSD and it is assigned a 70 percent rating. The criteria for consideration of a schedular TDIU are met. The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Regarding physical abilities, his PTSD does not cause physical impairments. His PTSD causes mental barriers to employment but does not preclude substantially gainful employment. VA examiners have consistently opined that the Veteran’s PTSD would negatively impact his employment; however, none of the examiners opined that it would prevent him from working. The Veteran also underwent employment counseling at the VA. The examiners noted that the Veteran’s legal issues are a very significant barrier to employment. In Vocational assessments in May 2014 and November 2016, the counselors noted the Veteran’s problems with concentration, memory, ability to understand, and ability to adapt to change would all negatively impact his employment. Specifically, the November 2016 counselor concluded that while the Veteran possessed significant employment impairment due to his PTSD, because of his legal history as a sexual offender it would be hard for him to gain employment without extensive career exploration and informational interviews. The Veteran had previously employment as a landscaper, fire fighter, and a janitor. In his VA May 2014 Rehabilitation Needs Inventory (RNI), he stated that he left jobs due to legal problems, the end of the fire season, he had applied for another job, and he had accepted another job. He also stated that during periods of unemployment he was incarcerated. At his April 2019 VA examination he reported he had a job harvesting hops and picking grapes but stopped working due to increased irritability and perceived mistreatment. The November 2016 vocational counselor stated that the Veteran would need retraining for an occupation that “will not aggravate [his] service connected disability.” However, the counselor did not state that PTSD prevented him from employment entirely. The April 2019 VA examiner noted that the Veteran would have “difficulty” in adapting to stressful circumstances including work or a worklike setting. The examination report did not show that his PTSD would prevent him from adapting to stressful work situations. The Veteran’s unemployability is not solely due to his service-connected PTSD. Without considering his legal history, his PTSD would not render him incapable of substantially gainful employment. The Veteran’s PTSD symptoms negatively impact his employment, specifically because he experiences concentration, memory issues, and angers easily. Nevertheless, the Veteran has been able to remain employed in various jobs despite these symptoms and left his prior jobs for reasons unrelated to his PTSD, per his own report in his May 2014 RNI. Without consideration of the Veteran’s legal history, his PTSD alone does not preclude substantially gainful employment for the reasons discussed above. The preponderance of the evidence shows that the Veteran’s service connected disability alone did not render him unemployable. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.