Citation Nr: 21013306 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-60 840 DATE: March 9, 2021 ORDER Prior to March 13, 2020, entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol abuse disorder and major depressive disorder (MDD) is denied. For the period prior to January 1, 2020, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. From January 1, 2020, to March 13, 2020 entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to March 13, 2020, the evidence does not show that the Veteran’s PTSD with alcohol abuse disorder and MDD was productive of total occupational and social impairment. 2. Prior to January 1, 2020, the Veteran reported that he was engaged in substantially gainful employment. 3. From January 1, 2020, to March 13, 2020, the Veteran was unable to obtain or maintain substantially gainful employment. 4. Effective March 13, 2020, the Veteran is in receipt of a 100 percent disability rating for PTSD with alcohol abuse disorder and MDD. CONCLUSIONS OF LAW 1. For the period prior to March 13, 2020, the criteria for a rating in excess of 70 percent for PTSD with alcohol abuse disorder and MDD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, DC 9413. 2. For the period prior to January 1, 2020, the criteria for entitlement to TDIU are not met. 38U.S.C. §1155; 5107(b); 38C.F.R. §§3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 38C.F.R. §§3.340, 3.341(a), 4.16(b). 3. Effective January 1, 2020, to March 13, 2020 the criteria for entitlement to a TDIU are met. 38U.S.C. §1155; 5107(b); 38C.F.R. §§3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 38C.F.R. §§3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 2000 to June 2007. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) October 2016 rating decision of the Agency of Original Jurisdiction (AOJ). In February 2020 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the February 2020 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. On remand, the AOJ granted a 100 percent schedular disability rating for the Veteran’s PTSD with alcohol abuse disorder and MDD effective from March 13, 2020, the date of VA examination in which the condition was shown to have worsened. 1. Prior to March 13, 2020, entitlement to a disability rating in excess of 70 percent for PTSD with alcohol abuse disorder and MDD The Veteran contends that, prior to March 13, 2020, his PTSD with alcohol abuse disorder and MDD warrants a rating in excess of 70 percent. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran’s PTSD is rated under 4.130, Diagnostic Code 9411. Under the General Formula for Mental Disorders (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). A 70 percent rating is provided 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 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. A 100 percent rating is provided 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. 38 C.F.R. § 4.130, DC 9411. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). A veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Id. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); 38 C.F.R. § 4.126 (a). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). The Board notes that the Veteran has reported that he was able to maintain full-time gainful employment through December 2019 as a skilled laborer. The Veteran has worked in the construction industry as a welder, among other positions, for most of his post-military career. He has completed his high school education, but has no college experience. Other than his high school degree and his work experience as a skilled laborer, the Veteran has no other education or vocational training. The Board notes that the Veteran has asserted that he was “unable to focus” while at work, which interfered with his ability to “perform basic tasks,” but he did not note whether that occurred prior to December 2019. For the period prior to March 13, 2020, the evidence shows that the Veteran experienced occupational and social impairment with deficiencies in most areas. The Veteran missed significant portions of time from work due to his PTSD. Notably, on VA examination in October 2016, the Veteran reported that he was working as a welder which was described as full-time employment within a factory setting. Although the Veteran’s representative has indicated that this employment could be considered akin to a sheltered work environment, there is no persuasive evidence in the record that this was the case. In fact, at the time of October 2016 examination, the Veteran still reported decent occupational performance albeit he reportedly was typically left alone by himself to work thus making it easier to cope with his PTSD. However, the Board does acknowledge that in July 2016 the Veteran was hospitalized due to his PTSD, and in November 2019, the Veteran was hospitalized because of his alcohol abuse disorder. While it was not until December 2019 that the Veteran became too disabled to obtain and maintain substantially gainful employment, his employment history for the period prior does show frequent changes in employers as well as significant amounts of time lost due to his conditions. Treatment records show that the Veteran was able to maintain a “good” level of hygiene and grooming. See August 5, 2019 Mental Health Consult. While the Veteran as noted to be “depressed,” there was no finding of a gross impairment of thought processes. However, the Veteran was prone to violent outbursts, as evidenced by his requiring treatment for injuries sustained in a fight he appears to have started. In October 2019 the Veteran was deemed to be an “intermediate acute risk” for suicide, but did not have a plan or desire to commit self-harm. While the Board does not discount the severity of the Veteran’s psychiatric conditions, the evidence shows that he was gainfully employed through December 2019. Furthermore, the evidence does not show, nor does the Veteran allege, that he had a gross impairment of thought processes, he did not experience persistent delusions or hallucinations, nor was he disoriented to time or place, and he did not endorse memory loss for names of close relatives, his own name, or his own occupation. As noted above, the Veteran was periodically found to be at-risk for suicide, but he was not a persistent danger to himself or others. As such, the Board finds that the Veteran’s acquired psychiatric conditions were not productive of total occupational and social impairment. For the reasons laid out above, the Board finds that for the period prior to March 13, 2020, the symptoms of the Veteran’s PTSD with alcohol abuse disorder and MDD are contemplated by a 70 percent disability rating. A 100 percent rating is not warranted as the Veteran did not experience both total occupational and total social impairment. In conclusion, a 70 percent rating is the appropriate rating for the Veteran’s PTSD. The claim for a rating in excess of 70 percent prior to March 13, 2020, is denied. 2. Entitlement to a TDIU Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38C.F.R. §3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38C.F.R. §4.16 (a). 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 United States 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 determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38U.S.C. §5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected 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. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran’s advancing age. 38C.F.R. §§3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. 38C.F.R. §§4.1, 4.15; Van Hoose, 4Vet. App.at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran’s claims file shows that as of October 2014 he meets the schedular requirements for a TDIU, as his PTSD with alcohol use disorder and MDD was assigned a 70 percent disability rating. However, as discussed above, the Veteran was able to obtain and maintain substantially gainful employment through December 2019. In a VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran stated that was employed as a skilled laborer more or less continuously from January 2013 through December 2019. According to the Veteran, it was not until December 2019 that his disabilities affected his ability to obtain and maintain substantially gainful employment. As the evidence shows that, prior to January 1, 2020, the Veteran was able to obtain and maintain substantially gainful employment, entitlement to a TDIU for the above period is not warranted. The Veteran’s claim for entitlement to a TDIU for the period prior to January 1, 2020, is denied. However, as of January 1, 2020, the Veteran was no longer able to continue his employment as a welder. According to the Veteran, his acquired psychiatric conditions made it so he was “unable to focus,” nor could he complete “basic tasks,” such as reading tape measures as his job required. In sum, his service-connected disabilities would not “allow” the Veteran to meet “company expectations. As discussed above, the Veteran’s psychiatric conditions were severe enough that he was hospitalized several times, most recently in October 2019. In addition to the hospitalizations, the Veteran was put on medications to treat his conditions. A December 2019 hospital pre-admission note found that the Veteran screened positively for suicidal ideation. Around January 2020, the Veteran’s wife separated from him, leaving the Veteran homeless for a period of time. According to the Veteran, the marriage fell apart due to his “inability to be a husband and father.” The Veteran received a service dog to aid him with his psychiatric conditions. In a March 2020 VA examination, it was noted that the Veteran lost his last job because he “could not make it to work due to the challenges” of his disability, which in turn led to him being unable to “function in [a] work setting.” The Veteran had difficulty with his superiors, as his “military mentality” conflicted with his bosses’ management styles. After reviewing the evidence, the Board concludes that from January 1, 2020, to March 13, 2020, a TDIU is warranted. The Veteran left his last employment in December 2019 due to his psychiatric conditions. He was unable to perform basic tasks his job required, and there is no evidence in the file that the Veteran has qualifications or experience that would allow him to work in an isolated job or in a job where he did not have to get along with a manager or supervisor. Therefore, in light of all this evidence, the Board concludes that granting the Veteran’s TDIU claim for the above period is warranted. As of March 13, 2020, the Veteran’s claim for a TDIU is moot as he is in receipt of a 100 percent schedular disability rating at that time, and there is no suggestion or indication that the Veteran’s only other service-connected disability (four scars of the right upper extremity, residual of cutaneous leishmaniasis) alone prevents the Veteran from obtaining and maintaining substantially gainful employment. Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.