Citation Nr: 21012737 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-26 086 DATE: March 5, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) from February 6, 2019 is granted. Entitlement to a rating in excess of 30 percent for PTSD prior to February 6, 2019 is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to February 6, 2019 is denied. Entitlement to a TDIU since February 6, 2019 is dismissed as moot. FINDINGS OF FACT 1. It is as likely as not that from February 6, 2019, the severity, frequency, and duration of the Veteran’s PTSD more closely approximate total occupational and social impairment. 2. Prior to February 6, 2019, the severity, frequency, and duration of the Veteran’s PTSD more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. The preponderance of the evidence is against a finding that the Veteran’s service-connected PTSD precluded him from obtaining and maintaining any substantially gainful employment, prior to February 6, 2019. 4. The issue of entitlement to TDIU since February 6, 2019 is moot. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for a rating of 100 percent for PTSD have been met as of February 6, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 30 percent prior to February 6, 2019 for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a TDIU prior to February 6, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.7, 4.16, 4.19. 4. Entitlement to a TDIU since February 6, 2019 is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to March 1972. The Board of Veterans’ Appeals (Board) remanded this matter in January 2019 for additional development. After the development was completed, the Agency of Original Jurisdiction (AOJ) issued a November 2020 rating decision, in which the rating for PTSD was increased from 30 percent to 70 percent, effective November 4, 2020. Additionally, the AOJ issued a January 2021 rating decision granting entitlement to a TDIU from November 4, 2020. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claims are still in controversy and on appeal. Id. The matter has now returned to the Board for appellate review. The Board notes that since the issuance of the November 2020 supplemental statement of the case (SSOC), additional evidence, including VA treatment records, has been associated with the Veteran's claims file. In light of the decision herein to grant a 100 percent rating for PTSD, there is no prejudice to the Veteran in proceeding with appellate consideration of these issues. See 38 C.F.R. § 19.31. 1. Entitlement to a rating in excess of 30 percent prior to November 4, 2020, and over 70 percent thereafter. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of the assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (i.e., "staged ratings"). Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's PTSD has been assigned an evaluation of 30 percent prior to November 4, 2020, and assigned an evaluation of 70 percent thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria pertaining to the Veteran's appeal is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where the disorder is manifested by 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 an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Effective August 4, 2014, the VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). In this case, the AOJ first certified the Veteran’s appeal to the Board in October 2016, after August 4, 2014; therefore, the Veteran’s PTSD is governed by DSM 5 and the Global Assessment of Functioning (GAF) scores are not relevant for consideration. See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). The Veteran’s PTSD has been assigned an evaluation of 30 percent from August 2, 2014, and 70 percent from November 4, 2020. After reviewing the evidence of record under the laws and regulations as set forth above, and resolving reasonable doubt in the Veteran’s favor, the Board finds that from February 6, 2019, the severity, frequency, and duration of the Veteran’s PTSD more closely approximate total occupational and social impairment. Turning to the record, private treatment records show a July 2014 initial psychiatric assessment where the Veteran reported some focus and concentration problems depending on the task at hand, and that he last worked in March 2014 when he retired. Private records also show October 2014, December 2014, March 2015, June 2015, September 2015, December 2015, March 2016, and June 2016 visits where the Veteran reported a lack of interest in activities, irritability, hypervigilance, and memory difficulties. However, there was no indication in these records that the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity, warranting a rating higher than 30 percent under Diagnostic Code 9411 during that time. The private physician described the Veteran’s thought process as no flight of ideas, no looseness of association, and no circumstantial thought. The Veteran reported his mood as anxiety, depression, and hyper arousal symptoms, and his affect was congruent to his mood. The Veteran denied auditory, visual, or tactile hallucinations, and he denied suicidal or homicidal thought or delusions. At the October 2014 VA examination, the Veteran reported retiring in March 2014 after working from 2001 to 2014 and prior to that he was employed from 1989 to 2001. He reported having issues with his coworkers during these periods. He reported mild memory loss, difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran’s social/occupational functioning was mild to moderately impacted by his PTSD with the greater impact being seen in his social/interpersonal abilities. The examiner noted that the Veteran’s PTSD was characterized as 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, warranting a 30 percent rating under Diagnostic Code 9411. A February 6, 2019 private mental evaluation summary, received later that month, shows that the Veteran’s counselor noted that the Veteran last worked in March 2014, and due to his current mental health state, he is not employable, and his mental health is declining. The Veteran reported suicidal ideation and difficulty sleeping. The November 2020 VA examiner noted that the Veteran’s PTSD was characterized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, warranting a 70 percent rating under Diagnostic Code 9411. Based on the evidence of record and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD is manifested by symptoms that more nearly approximate total occupational and social impairment required for 100 percent rating from February 6, 2019. Since February 6, 2019, the Veteran has exhibited symptoms of gross impairment in thought process and communication, and there is an indication of suicidal ideation. The evidence also shows that the Veteran is socially isolated, which in part is caused by his hypervigilance, impaired judgment, and communication skills. The above evidence including the competent and credible lay statements from the Veteran and the medical records reflects that the evidence is at least evenly balanced as to whether the Veteran's impairment due to PTSD more nearly approximates the total occupational and social impairment required for a 100 percent rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 100 percent rating for PTSD is warranted from February 6, 2019. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Entitlement to a TDIU prior to and after February 6, 2019. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). If a veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that he is unable to maintain substantially gainful employment due to his service-connected disabilities, his claim for a total disability rating based on unemployability cannot be denied in the absence of medical evidence showing that he is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In reaching a TDIU determination, the central inquiry 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 arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Moreover, for a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect circumstances which place that veteran’s case in a different category than other veterans with an equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The medical evidence addressing the functional effects of a veteran’s disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 387 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, the date of receipt of the TDIU claim is when the Veteran submitted his initial application for TDIU, which was received on September 12, 2015. The remaining issue is on what date did the entitlement to a TDIU arise. Turning to the record, on the September 2015 application, the Veteran stated that he had not worked since February 2014 due to his service-connected PTSD. As discussed in detail above, private treatment records from July 2014 to June 2016 show that the Veteran reported some focus and concentration problems depending on the task at hand, and that he last worked in March 2014 when he retired. He reported a lack of interest in activities, irritability, hypervigilance, and memory difficulties. However, there was no indication in these records that the Veteran was unable to work due to his PTSD at that time. At the October 2014 VA examination, the Veteran reported retiring in March 2014 after working from 2001 to 2014 and prior to that he was employed from 1989 to 2001. He reported having issues with his coworkers during these periods. He reported mild memory loss, difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran’s social/occupational functioning is mild to moderately impacted by his PTSD with the greater impact being seen in his social/interpersonal abilities. While the examiner noted the Veteran reported a long history of occupational difficulties with respect to coworkers and management, there is no indication that the Veteran was unable to work due to his PTSD at that time. The Board acknowledges the Veteran’s contentions of his unemployability. The ultimate responsibility for a TDIU determination is a factual question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16 (a)). After consideration of the medical and lay evidence of record, the Board finds that the evidence is insufficient to show that the Veteran is unemployable due to his PTSD prior to February 6, 2019. Based on the evidence of record, the Board finds that the Veteran’s disabilities did not precluded him from all forms of employment prior to February 6, 2019. Specifically, the evidentiary record, which includes medical evidence, opinion evidence, and the Veteran’s lay assertions concerning the impact of his disabilities, demonstrates that while the Veteran complained of difficulties with coworkers before he retired, the Veteran was able to maintain long-term employment with two companies for many years. It appears that he retired from his last employment, and the evidence does not reveal that the service-connected disabilities played a substantial role in his retiring. The Board notes that some of the Veteran’s medical records prior to February 6, 2019 indicate that the Veteran reported that his PTSD caused some functional impairment but did not opine or find that the impairments prevented the Veteran from obtaining or maintaining substantially gainful employment in an active or sedentary capacity. Accordingly, the Board finds that the weight of the available lay and medical evidence demonstrates that the criteria for a TDIU prior to February 6, 2019 have not been met or more nearly approximated. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As the Veteran has been granted a 100 percent rating for PTSD from February 6, 2019, the Board recognizes that, although 38 C.F.R. § 4.16 (a) provides that a TDIU is only warranted where the schedular rating is less than total, an award of a 100 percent disability rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional disability ratable at 60 percent or higher. The Court held in Buie and Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). In this case, however, the Veteran is already in receipt of SMC from November 4, 2020. Consequently, the granting of a TDIU could not assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). The issue of entitlement to a TDIU from February 6, 2019 is therefore moot. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.