Citation Nr: 21012203 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 11-17 364 DATE: March 3, 2021 ORDER Entitlement to an increased rating greater than 70 percent for posttraumatic stress disorder (PTSD) prior to April 9, 2013 and from June 1, 2013 is denied. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to April 9, 2013 and from June 1, 2013, the Veteran’s PTSD most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. 2. The Veteran’s service-connected disability does not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to April 9, 2013, and from June 1, 2013, the criteria for an increased rating greater than 70 percent disability for PTSD have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1989 to June 1993. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to an increased rating greater than 70 percent for PTSD The Veteran contends that an increased rating greater than 70 percent is warranted for his service-connected PTSD. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for PTSD was granted in a September 1997 rating decision, and a 30 percent rating was assigned, effective July 6, 1995, under 38 C.F.R. § 4.130, Diagnostic Code 9411. In a June 2009 rating decision, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 50 percent for the Veteran’s PTSD, effective April 16, 2009. The Veteran appealed the June 2009 rating decision. In a January 2014 rating decision, the AOJ assigned a temporary 100 percent disability rating for PTSD based upon hospitalization exceeding 21 days, from April 9, 2013 through May 31, 2013, and a 50 percent disability rating thereafter. A July 2020 rating decision granted an increased disability rating of 70 percent for PTSD, effective December 17, 2019. In a November 2020 rating decision, the AOJ awarded an earlier effective date of April 16, 2009 for the grant of a 70 percent disability rating, exclusive of the time period from April 9, 2013 through May 31, 2013, when the Veteran was in receipt of a 100 percent temporary rating. Because the Veteran is in receipt of the maximum schedular evaluation for PTSD from April 9, 2013 through May 31, 2013, the Board will consider entitlement to an increased rating greater than 70 percent for PTSD prior to April 9, 2013 and from June 1, 2013. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the level of occupational and social impairment caused by the disability. 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 Diagnostic Code. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. 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 Diagnostic Code 9411, a 70 percent rating is warranted 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 that 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 100 percent rating 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. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) is for application as this appeal was still pending at the agency of original jurisdiction on August 4, 2014. 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093, 45099 (effective date provisions); 80 Fed. Reg. 53, 14308 (March 19, 2015) (adopting the final rule recognizing that the DSM-IV was rendered obsolete by the publication of the DSM-5 in May 2013). The DSM-5 eliminated Global Assessment of Function scores for several reasons, including conceptual lack of clarity and questionable psychometrics in routine practice. VA treatment records from 2008 through 2013 reflect complaints of and treatment for PTSD symptoms including depression, irritability, explosive arguments, nightmares, insomnia, suicidal ideation, homicidal ideation, delusions of persecution, paranoia, flashbacks, strained personal relationships, and intermittent episodes of anger or rage. In June 2009, the Veteran reported a history of suicide attempts, with his last attempt occurring two years before. He denied plan or intent to commit suicide or homicide. In February 2010, the Veteran noted that his wife and children were what kept him from harming himself. He also reported significant problems getting along with others at work. Mental status examinations regularly show the Veteran to be casually dressed with good hygiene and normal or decreased speech; depressed or dysphoric affect; depressed, sad or anxious mood; normal thought processes and thought content; fair memory; fair insight and judgment; and suicidal ideation. The Veteran denied auditory and visual hallucinations. In May 2009, the Veteran underwent a VA PTSD examination. The Veteran reported symptoms including insomnia, nightmares, irritability, impatience, anger-management deficits, social isolation, and hypnopompic visual hallucinations which were not persistent. The Veteran noted a history of two suicide attempts by overdose since 2005, and indicated that he had been involved in a number of altercations. He reported a history of two failed marriages and several “common-law relationships.” He stated that he was in a relationship with his girlfriend for the past three years. He noted that he had two daughters and three sons, and that he had positive relationships with two of them. He denied having any close friendships beyond his family and denied hobbies or activities of interest. The Veteran also reported a history of one two-week psychiatric hospital in 2003 or 2004, and noted that he was scheduled to work with a counselor at work. The Veteran also reported a legal history involving stealing furniture, but indicated that he was not convicted. He also stated that he was arrested for domestic violence on two occasions in the past, but denied legal complications since 2005. The Veteran noted that he was employed by a tire manufacturer as a machine operator for the prior 15 months, and that he worked for a veterinary supply company for 4 to 5 years before then. He indicated that he quit his job at the veterinary supply company after being demoted. On mental status examination, the Veteran was neatly groomed, alert, and fully oriented. Psychomotor activity was lethargic and speech was slow. Mood was depressed and affect was constricted. Thought process and thought content were unremarkable and there was no evidence of delusions. Memory was normal. Judgement and insight were intact. The examiner noted that the Veteran had inappropriate behavior, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, obsessive and ritualistic behavior, panic attacks, suicidal thoughts, homicidal thoughts, and episodes of violence. The Veteran was able to maintain minimum personal hygiene with no problem with activities of daily living. The VA examiner diagnosed PTSD and provided a GAF of 63, noting that the Veteran’s psychiatric status appeared “more severe” than in 2005 when he was last assessed. The examiner concluded that the Veteran’s PTSD did not result in total occupational and social impairment, but that it did cause deficiencies in thinking, family relations, work, and mood. Private psychiatric records from May 2009 through June 2009 note symptoms including anger, frustration, difficulty getting along with co-workers and supervisors, suicidal ideation with a history of suicide attempts, chronic depression, anxiety, panic attacks, chronic sleep disorder, nightmares, paranoia, difficulty being around others, flashbacks, intrusive thoughts, hypervigilance, and exaggerated startle response. They also reflect the Veteran’s reported history of domestic violence and theft of furniture and that he had three marriages, each unsuccessful due to arguments and fighting. In a July 2009 lay statement, L.B. reported that the Veteran had a hard time controlling his anger, experienced suicidal ideation and social isolation from his family, and had some “black out episodes.” A July 2009 lay statement from E.M.P., the Veteran’s mother, reflects that the Veteran started fights, experienced increased anger, displayed suicidal ideation, and could not maintain any of his three marriages due to his “violent ways.” VA treatment records from 2013 through 2019 reflect continued complaints of and treatment for PTSD. The records note the Veteran’s symptoms, including insomnia, nightmares, exaggerated startle response, irritability, suicidal ideation, difficulty concentrating, memory impairment, anger outbursts, marital conflict, avoidance of crowds, and social isolation. The Veteran noted a history of domestic violence and loss of employment due to anger outbursts. He also reported that he was admitted to the hospital in March 2013 after taking five pills of Benadryl and driving around “wanting to have an accident.” He indicated that he was discharged three days later. Mental status examinations regularly showed the Veteran to be alert and fully oriented with good, fair, or poor eye contact; depressed mood; flat affect; normal or low, monotone speech; linear and goal-directed thought process; grossly intact memory; some psychomotor retardation; no evidence of psychosis; no delusions or hallucinations; fair attention and concentration; and fair or poor insight and judgment. In March 2016, the Veteran attended another VA PTSD examination. He reported symptoms including depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran reported that he was married to his fifth wife, but that they had a poor relationship. He noted that he had two sons living with him, but that he did not interact with them. He stated that he was working as a truck driver, but that he “may submit a letter of termination today.” On mental status examination, the Veteran was casually dressed and fully oriented, but avoided eye contact. The examiner concluded that the Veteran’s PTSD resulted in 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. An April 2018 VA PTSD examination notes the Veteran’s PTSD symptoms including anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran reported that he was married for 7 years, but that he and his wife had a poor relationship. He noted that he lived at home with his two sons, and that he got along with them at times, but at other times he did not want to interact with them. He indicated that he was working as a truck driver and that he had held that job for about one year. The Veteran explained that he was seeking TDIU because he would like to seek residential treatment and would need to stop working to do so. The examiner noted that the Veteran’s PTSD symptoms, even without treatment, do not preclude him from maintaining his present job. On mental status examination, the Veteran was fully oriented and casually dressed, and avoided eye contact. The examiner concluded that the Veteran’s PTSD resulted in 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. In December 2019, the Veteran underwent another VA examination. The Veteran endorsed symptoms including hypervigilance, fatigue, low motivation, exaggerated startle response, anxiety in crowds, depressed mood, intrusive recollections, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. The Veteran noted that he was married, and had been married for 10 years, but that there was discord in his marriage. He reported a history of four prior marriages. He stated that he had four biological children and one stepchild, and that he lost a son in July of that year. He described distant relationships with his remaining children. He reported that he was working as a long-haul truck driver and previous employment as a correctional officer, tire factory worker, and warehouse driver. He indicated that he has never held a job for more than one year. The Veteran noted that he was arrested once for domestic battery and five or six times for theft and contempt of court. On mental status examination, the Veteran was appropriately dressed with good grooming and hygiene. He made eye contact and was cooperative and engaged during the examination. He exhibited depressed affect and evasion of eye contact. The examiner concluded that the Veteran’s PTSD resulted in 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. In an October 2020 addendum opinion, the examiner who performed the December 2019 VA examination noted that the Veteran’s PTSD was manifested by anger, violence, suicidal ideation without plan or intent, fatigue, social withdrawal, social avoidance, poor sleep, nightmares, intrusive recollections, anger, irritability, financial problems, and marital discord. The examiner opined that the Veteran’s PTSD was “consistent with moderate deficits in social functioning and moderate deficits in completing complex and sustained tasks.” In a separate addendum, the examiner noted that the Veteran could perform work with limited social contact, routine and repetitive tasks, tasks that require a serial processing approach, and a schedule that offers multiple brief breaks. The examiner concluded that the Veteran’s current employment as a long distance truck driver met these criteria. With consideration of the entire record, the Board concludes that an increased disability rating greater than 70 percent is not warranted for the Veteran’s service-connected PTSD prior to April 9, 2013 or from June 1, 2013. The evidence does not more nearly approximate the criteria for a disability rating of 100 percent, as the evidence does not show functional impairment comparable to total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411; Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). “[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, 713 F.3d at 116-17. Although the evidence shows a history of grossly inappropriate behavior, there is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; 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. While a history of domestic violence and anger outbursts is noted, the evidence does not document that the Veteran was in persistent danger of hurting others. In that regard, there is no evidence that the Veteran physically injured or hurt another person during the appeal period. Further, the Board acknowledges the substantial evidence of suicidal ideation in the record along with one instance in which the Veteran took too much Benadryl and drove in his vehicle “wanting to get in an accident.” Nevertheless, the Board finds that the record does not reflect that the Veteran was in “persistent” danger of hurting himself. Additionally, the evidence does not show that the Veteran experienced other symptoms of a similar severity, frequency, or duration throughout the appeal period. Rather, the Veteran’s symptoms are all contemplated by the rating criteria for a 70 percent or lower disability rating. While the evidence supports a finding of total social impairment as evidenced by the Veteran’s many failed marriages, the discord in his current marriage, his lack of friends, and his inability to get along with coworkers and supervisors, the evidence does not show total impairment in occupational functioning. In that regard, although the record reflects short periods of unemployment, the Veteran has been employed for the majority of time during the appeal period. Further, in a December 2020 opinion, a VA examiner opined that the Veteran’s could perform work with limited social contact, routine and repetitive tasks, tasks that require a serial processing approach, and a schedule that offers multiple brief breaks, and that his current employment as a long distance truck driver met these criteria. While the Board acknowledges the significant impact of the Veteran’s PTSD upon his occupational functioning, the weight of the probative evidence suggests that he does not experience total occupational impairment. Ultimately, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s PTSD was manifested by symptoms warranting a 100 percent evaluation, and the evidence does not show functional impairment comparable to total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411; Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). “[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, 713 F.3d at 117. Here, the preponderance of the evidence weighs against a finding that the Veteran’s disability picture more nearly approximates the symptoms as listed for a 100 percent rating, or other symptoms of a similar severity, frequency, or duration. Rather, the Veteran’s symptoms are all reasonably contemplated by the rating criteria for rating of 70 percent or lower. Accordingly, an increased disability rating greater than 70 percent is not warranted for the Veteran’s PTSD prior to April 9, 2013 or from June 1, 2013. The preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) The Veteran contends that he is unemployable due to his service-connected PTSD. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §4.16. The Veteran satisfies the percentage criteria for a TDIU, as his service-connected PTSD is rated as 70 percent disabling. See 38 C.F.R. § 4.16(a) (providing for TDIU when there are two or more disabilities with at least one rated 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more). Thus, the central inquiry before the Board 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). In February 2018, the AOJ requested that the Veteran complete a formal application for a TDIU (VA Form 21-8940) and identify his previous employers to help establish his claim. The Veteran did not complete the VA Form 21-8940 as requested or otherwise provide any information pertaining to his education and employment history. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to his employment history, educational history and training, and income information pertinent to his claim for a TDIU. (Continued on the next page)   Therefore, the Board has reached its conclusion based on the evidence available in the record. In that regard, the record establishes that the Veteran is still working. As noted above, while the evidence demonstrates that the Veteran has had short periods of unemployment, he has been employed throughout the majority of the appeal period and the most recent evidence of record shows that he is currently working as a long-distance truck driver. Further, there is no evidence of record suggesting that the Veteran is unemployable due to his service-connected PTSD. The only medical evidence of record addressing the impact of the Veteran’s PTSD upon his employability is an October 2020 VA opinion in which the examiner concluded that the Veteran could work in an environment with limited social contact, routine and repetitive tasks, tasks that require a serial processing approach, and a schedule that offers multiple brief breaks, and that the Veteran’s current employment as a long-distance truck driver met these criteria. Accordingly, based upon the available evidence of record, the Board concludes that the Veteran is not unemployable due solely to his service-connected disability, as he is able to sustain fulltime employment. Accordingly, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49; 38 C.F.R. §§ 4.15, 4.16, 3.340, 3.341. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.