Citation Nr: 21013685 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 19-31 903 DATE: March 10, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) for the period prior to April 8, 2013 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 8, 2013 due to PTSD is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a TDIU, beginning April 8, 2013 is dismissed. FINDINGS OF FACT 1. For the entire appeal period prior to April 8, 2013, the Veteran’s PTSD was manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximated total occupational and social impairment. 2. For the period prior to April 8, 2013, the Veteran’s service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 3. Beginning April 8, 2013 to March 31, 2020, the Veteran was in receipt of a 100 percent rating for PTSD, but his remaining service-connected disabilities are rated less than 60 percent and the Veteran is not housebound; thus, special monthly compensation is not warranted. 4. Beginning March 31, 2020, the Veteran has been in receipt of a 100 percent schedular rating for PTSD and an award of special monthly compensation due to other, independently ratable, disabilities that combine to a 60 percent rating or more. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD prior to April 8, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. Prior to April 8, 2013, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 3. Beginning April 8, 2013, the claim of entitlement to a TDIU is moot and the claim is dismissed. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to April 1987. By way of background, the Veteran’s claim for service connection for PTSD was originally denied in an October 2007 rating decision. Such was timely appealed by the Veteran, and eventually the Veteran’s claim for service connection for PTSD was granted in an August 2018 Board decision. The Veteran subsequently appealed the propriety of the initially assigned rating for such disability, which was assigned in a September 2018 rating decision. The appeal now comes to the Board for appellate consideration. Furthermore, as the Veteran’s claim to a TDIU is part and parcel to his claim for a higher initial rating for his PTSD, such is also adjudicated herein. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran is in receipt of a 100 percent rating for his PTSD as of April 8, 2013. As such is the maximum schedular rating for PTSD, his appeal for an initial increased rating is moot as of this date and such is reflected on the title page of this decision. Furthermore, as the Veteran is in receipt of special monthly compensation (SMC) at the housebound rate as of March 31, 2020, the Veterans’ claim for a TDIU is likewise moot as of such date. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Additional evidence consisting of a private vocational assessment report was associated with the claims file following the issuance of the August 2019 statement of the case. However, as the Veteran has waived Agency of Original Jurisdiction (AOJ) consideration of the evidence, the Board may properly consider such newly received evidence. 38 C.F.R. § 20.1304 (c). 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from January 23, 2007 to April 8, 2013. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All 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 disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found—a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board for this initial rating claim begins on January 23, 2007, the day the Veteran filed a claim for service connection for PTSD and the date as of which service connection was granted for such disorder. As mentioned, supra, the Veteran was awarded a 100 percent rating as of April 8, 2013, so the claim is moot as of such date. For the entire period on appeal, therefore, the Veteran’s PTSD is rated as 70 percent disabling pursuant to DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130. A 70 percent rating is warranted where there is 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is 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 United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116–117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas”—i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117–118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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). The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Turning to the evidence of record, the Veteran was afforded an initial evaluation for PTSD by VA in May 2007. At such time, the Veteran reported experiencing flashbacks, nightmares, irritability, becoming easily angered, hypervigilance, moderate depression, and emotional lability with crying spells. Mild memory loss was reported, and the examiner also noted that the Veteran suffered from, on average, one moderate-level panic attack per week. Moderate depression and anxiety were also noted, along with impaired impulse control and the tendency to verbally confront others. The Veteran stated that he slept, on average, four to five hours per night due to recurrent nightmares and night sweats. The Veteran reported some fleeting suicidal ideation in the past, with no prior attempts. VA treatment records show that in August 2007, the Veteran again reported passive suicidal ideation, which he attributed to losing his job. He stated that he would not act on such ideation, and he denied experiencing any hallucinations. He further reported problems controlling his impulses and anger, but he denied experiencing any manic episodes. At the end of 2007, the Veteran reported having nightmares and interrupted sleep, with somewhat depressed mood. He denied any suicidal or homicidal ideation, psychosis, hallucinations, or delusions. VA treatment records from 2008 reveal similar symptomatology. In a January 2008 clinic visit, the Veteran was noted to be alert and cooperative, with labile mood. He became sad and sobbed when talking about family and described a small amount of paranoia. Speech was organized, coherent, relevant, and goal directed. The Veteran admitted to experiencing depression and anxiety but again denied psychosis, mania, and suicidal or homicidal ideation. The following month, the Veteran stated that his episodic sadness had become more frequent. That same month, he did demonstrate an outburst of anger during one VA medical appointment when he became frustrated. Such did not result in any violence. Treatment records include similar symptoms throughout the remainder of 2008, though in December the Veteran reported increased verbal expressions of anger and more difficulty in holding back such responses but no reports of violence. VA treatment records from 2009 continued to show constant symptomatology, and the Veteran consistently denied suicidal and homicidal ideation. The Veteran reported maintaining relationships, to include getting married. In June, he reported that his mood had been alright, with occasional episodes of getting irritated easily. In September, his mood was reported as mildly dysphoric, with constricted affect, but goal-oriented speech upon examination. The following January 2010, a treatment record documents the beginnings of relational strain with the Veteran’s new wife, though there were no episodes of violence reported. Continued treatment at the VA in 2011 demonstrated continued symptoms, with good hygiene and grooming noted in a record from early July 2011. The Veteran reported being unemployed, but he denied experiencing suicidal ideation as he had the last time he lost his job. He reported experiencing no hallucinations, delusions, paranoia, grandiosity, obsessions, or compulsions. Social security records show that during this time, the Veteran’s wife began reporting fear of the Veteran due to his yelling, crying, sweating, and occasional fighting. At this time, the Veteran again expressed passive suicidal ideation during July 2011. Hallucinations and psychosis were noted to be absent at that time. Continued treatment at the VA for the remainder of the year showed symptoms of intermittent irritability and frustration, verbal angry outbursts, feelings of sadness and loneliness, feelings of hopelessness and helplessness, anxiety, some social isolation, and sleep disturbance. The Veteran denied experiencing symptoms of hypervigilance or engaging in emotional numbing with substances. He again denied suicidal and homicidal ideation. Records from December 2011 showed continued relationship problems but no evidence of violence or aggression. The remaining VA treatment records throughout the appeal period demonstrate continued symptomatology until April 2013, at which time the Veteran reported worsened symptomatology, resulting in the increase to a 100 percent rating. However, until such time, the Veteran reported similar symptomatology, including some feelings of hopelessness, but no suicidal ideation. The Veteran was noted to exhibit deficiencies in most occupational and social interactions, but he was still largely able to demonstrate adequate communication and the ability to function independently. He was not noted to experience any delusions or hallucinations. While his behavior included some angry outbursts, he did not exhibit grossly inappropriate behavior or danger of hurting himself or others. While a small amount of memory loss was noted at times, there was no evidence of disorientation to time and place or memory loss at the scope of a 100 percent rating. Therefore, upon review, the Board finds that, for the entire appeal period prior to April 8, 2013, the Veteran’s PTSD was manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations resulting in total occupational or social impairment. Thus, a rating in excess of 70 percent is not warranted for such period. In reaching its conclusions in the instant case, the Board acknowledges the Veteran’s belief that his PTSD is more severe than as reflected by the current assigned disability ratings for the period on appeal. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disabilities. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s PTSD; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Thus, assigning additional staged ratings for such disabilities is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the Board finds that an increased rating for the Veteran’s PTSD is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s increased rating claim. Consequently, that doctrine is not applicable in the instant appeal, and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability 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). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As an initial matter, the Board notes that the Veteran is in receipt of a 100 percent schedular rating for PTSD since April 8, 2013. However, a grant of a 100 percent disability rating does not always render the issue of TDIU moot. As is potentially relevant here, an award of TDIU predicated on a single service-connected disability, alone, may result in additional benefits (i.e., special monthly compensation, or SMC), even if a 100 percent combined schedular evaluation is in effect. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate where the veteran has a single service-connected disability rated as 100 percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 C.F.R. § 3.350. In the Veteran’s case, his service-connected PTSD was rated as 100 percent disabling as of April 8, 2013. At that time, the Veteran was also service connected for pseudofolliculitis barbae to include residual scars, evaluated as 30 percent disabling as of January 23, 2007; and hypertension, evaluated as 10 percent disabling as of January 23, 2007. However, since his service-connected pseudofolliculitis barbae and hypertension only amount to a combined rating of 40 percent, this does not satisfy the 100 percent plus 60 percent requirement for SMC under 38 U.S.C. § 1114 (s). In addition, the evidence of record does not support a finding that the Veteran is permanently housebound due to his service-connected disability or disabilities. Therefore, for the period beginning April 8, 2013 to March 31, 2020, TDIU is moot, and the claim is dismissed. In addition, for the period beginning March 31, 2020, the Veteran was awarded special monthly compensation under 38 U.S.C. § 1114 (s); thus, TDIU is moot for this period because it could not result in a higher benefit than that already assigned. Therefore, the question before the Board is whether the Veteran is entitled to a TDIU for the period prior to April 8, 2013. At the outset, the Board notes that the Veteran has not asserted, nor does the evidence show, that the Veteran’s service-connected hypertension or pseudofolliculitis barbae impact the Veteran’s ability to obtain substantial gainful employment. Therefore, the Board will not discuss these disabilities any further. With regard to service-connected PTSD, an August 2020 correspondence shows the Veteran’s representative has argued that the Veteran’s short-lived employment from September 2007 to December 2007, and from February 2012 to January 2013 was not substantially gainful because it was not maintained as a result of his service-connected disabilities. The representative also argued that the Veteran’s frequent verbal altercations, absenteeism, and difficulty concentrating and staying awake due to chronic sleep impairment prevented him from maintaining substantially gainful employment since July 2007. In his March 2020 application for a TDIU, the Veteran reported that he last worked full-time in security for a private company from February 2012 to January 2013. He also reported working for four months in 2010 doing clerical work for a scanning company and for two periods in 2007 for other security companies. However, the Veteran reported that he was unable to maintain meaningful employment due to his service-connected disability and that he ceased looking for employment due to the same. He reported four years of high school education, with no additional education and training at any point following his military service other than participation in the Compensational Work Therapy (CWT) program at a local VA medical center. VA medical records from June 2007 indicate that the Veteran was reporting more conflicts at work than usual. He described being very angry and irritable in his interactions. Just two months later, he reported losing his job due to absenteeism. A November 2008 mental residual functional capacity assessment for the Social Security Administration documented moderate limitation in the ability to maintain attention and concentration for extended periods of time; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; the ability to interact appropriately with the general public; and the ability to set realistic goals or make plans independently of others. VA medical records from the following month note that the Veteran was working in a position with the VA CWT program but that he was engaging in more angry verbal exchanges with customers after they reportedly disrespected him. He stated that he struggled to hold back his anger when interacting with others, to include in his job in a cafeteria. Medical records from early 2009 reveal the Veteran’s frustration with being unable to work outside of the VA program, which was compounded by his lack of basic computer skills and an inability to search for employment online. During such time, the Veteran continued to participate in the CWT program but reported struggling with not sleeping and his inability to maintain relationships due to trust issues. Additional Social Security Administration records from July 2011 indicated that the Veteran had lost jobs and gotten into arguments and fights in the past due to lack of trust, suspicion that anyone can turn on him, and paranoid ideation. In a February 2018 PTSD VA compensation and pension examination, the veteran reported being terminated in the past after a physical altercation with a co-worker in which the Veteran pulled a weapon on the man. In a private August 2020 VA Individual Unemployability Statement, the Veteran reported that he has difficulty attending to or is easily distracted from tasks, experiences intrusive thoughts which interfere with the ability to stay focused, struggles with significant difficulty remembering instructions and details of work assignments, has significant difficulty functioning around other people, has difficulty functioning as a team member, feels uncomfortable around others, and struggles with fatigue due to disrupted sleep. Furthermore, he also reported experiencing panic attacks more than once per week, being suspicious and distrusting others, and being easily angered. Accordingly, the psychologist noted that the Veteran’s panic attacks would hinder his ability to function adequately at a job, as would his suspicion of others and tendency to become easily angered. In July 2020, the Veteran’s vocational ability was assessed by a private vocational rehabilitation counselor who supported the representative’s argument that the Veteran’s intermittent periods of employment since 2007 were not substantially gainful because employment was not maintained as a result of PTSD symptomatology. Specifically, the counselor stated that the Veteran’s periods of employment constituted work attempts that were clearly impeded by the Veteran’s PTSD-related inability to maintain appropriate social behavior, concentration, focus and pace. The Board notes that a few VA medical treatment records document that the Veteran struggled to maintain employment, in small part, due to gambling addiction problems and substance abuse. Furthermore, the Veteran was able to maintain employment for short periods of time. However, upon a review of all evidence of record, the Board finds that the preponderance of the evidence indicates that the Veteran was unable to maintain substantially gainful employment due to symptoms of his service-connected PTSD for the period prior to April 8, 2013. Although his TDIU application shows periods of employment with income above the poverty threshold, his employment was sporadic and marginal at best. Accordingly, the Board resolves all doubt in favor of the Veteran and finds that his PTSD alone renders him unemployable for the period prior to April 8, 2013. K. R. LAFFITTE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.