Citation Nr: 21013751 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 12-33 678 DATE: March 10, 2021 ORDER Entitlement to a rating of 50 percent, but not higher, for posttraumatic stress disorder (PTSD), as of June 13, 2011, but not earlier, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. The Veteran does not meet the schedular requirements for entitlement to service connection for TDIU and has not asserted a disability picture that would warrant consideration pursuant to 38 C.F.R. § 4.16(b). CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but not higher, for PTSD, as of June 13, 2011, but not earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In February 2016, the Veteran and witnesses J.P. and J. G. testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to a rating for PTSD in excess of 30 percent, prior to April 26, 2017, and in excess of 50 percent as of April 26, 2017 The Veteran asserts that his PTSD symptoms are worse than contemplated by the currently assigned ratings. 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 (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 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. A 0 percent rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned for mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned for symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned for symptoms such 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned for symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. In a July 2011 VA examination, the examiner opined that the Veteran exhibited occupational and social impairment with occasional decreased work efficiency and intermittent inability to perform occupational tasks. The Veteran reported dealing with feelings of anxiety, sadness, helplessness, and decreased motivation. The examiner indicated that the Veteran had suicidal ideation in the past, but not currently. The Veteran described having a good relationship with his siblings, his wife, and his children. The Veteran reported avoiding movie theatres and ball games. He did not like being in crowds. As a result, his social life had decreased. The Veteran reported that his in-service experiences caused him to develop flashbacks, nightmares, and sleeping problems. Other symptoms on examination included irritability, outbursts of anger, exaggerated startle response, difficulty concentrating, hypervigilance, depression, anxiety, suspiciousness, chronic sleep impairment, and a somewhat flattened affect. The examiner stated that the duration of the disturbance is more than one month. The Veteran was found to be a reliable historian who was oriented to time, place, and person. His appearance and hygiene were appropriate. His mood, speech, communication, and concentration were normal. GAF score is 45 to 50. The examiner did conclude that the Veteran required psychotherapy. In a March 2013 statement, the Veteran’s representative asserted that the July 2011 examination warranted a higher rating. In support of that, it was highlighted that the Veteran reported avoiding social gatherings or large crowds and that his social life had decreased markedly. It was also highlighted that the examiner found the Veteran to have occupational and social impairment with flattened affect. In an April 2017 VA examination, the examiner opined that the Veteran exhibited 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. The Veteran reported that his marriage had been doing well since the previous examination. The Veteran also indicated that he maintained good relationships with his children, grandchildren, great-grandchildren, friends, and Veteran activities. Symptoms on examination included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and impaired impulse control such as unprovoked irritability with episodes of violence. On examination, the Veteran was dressed casually, appeared well groomed with good hygiene, demonstrated no evidence of thought disorder or gross cognitive or memory deficits, made appropriate eye contact, and was cooperative and alert and oriented during the exam. His mood and affect appeared euthymic. He denied any major depression, suicidal or homicidal ideation, suicide attempts or gestures, or psychiatric admissions. He also denied any manic or hypomanic symptoms or psychotic symptoms. There were no auditory or visual hallucinations or delusions. He demonstrated no behaviors consistent with those symptoms during the examination. In an October 2020 VA examination, the examiner opined that the Veteran experienced occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. PTSD symptoms noted at examination were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances including work or a work like setting; duration of the disturbance is more than one month. The Veteran appeared adequately groomed on examination. He exhibited no tics, tremors, or unusual body movements. He was oriented to time and place. There was no evidence of a thought disorder as indicated by a lack of organization, tangential comments, or loosely associated themes. No indication of suicidal or homicidal ideation. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating during the period on appeal, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. 38 C.F.R. § 4.126. The Veteran reported that the symptoms were not present daily but increased in severity in large crowds or stressful situations. The July 2011 VA examiner’s suggestion of psychotherapy would also encompass symptoms affiliated with a 50 percent rating. The Board notes that the Veteran expressed a history of suicidal ideation at the July 2011 VA examination. A persistent danger of self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm, not just at the July 2011 VA examination, but each examination thereafter, while only expressing a history of such ideation at the July 2011 examination. Therefore, the Board finds that a persistent danger of self-harm is not shown. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating during the period on appeal. The Veteran experienced occupational and social impairment with reduced reliability and productivity. The July 2011, April 2017 and October 2020 VA examinations indicate that the Veteran had depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances including work or a work-like setting, and that the duration of the disturbance was more than one month. The July 2011 and April 2017 VA examiners found that symptoms caused 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. The October 2020 VA examiner found that symptoms caused mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. However, the Board notes that reported symptoms proved to be consistent on each examination during the period on appeal, including the observed flattened affect at the July 2011 VA examination. As a result, the Veteran’s symptoms are more nearly approximated by 50 percent rating and is warranted for the entire period on appeal. While the Veteran experienced some symptoms contemplated by a 70 percent rating such as difficulty adapting to stressful or inability to establish and maintain effective work relationships, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating showing deficiencies in most areas. The Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. The Veteran maintains social relationships with extended family members. Accordingly, the Board finds that the evidence supports the assignment of a 50 percent rating for PTSD as of June 13, 2011, but not earlier. The Board finds that the preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) TDIU may be assigned, if 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, provided that if there is only one service-connected disability it is rated 60 percent or more, and that if there are two or more service-connected disabilities at least one is rated 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has established service connection for PTSD, rated 50 percent; diabetes mellitus, rated 20 percent; tinnitus, rated 10 percent; right ear hearing loss, rated 0 percent; and essential hypertension, rated 0 percent. The Veteran has a combined service-connected disability rating of 60 percent. As a result, the Veteran does not meet the minimum schedular requirements for consideration of entitlement to individual unemployability pursuant to 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who do not meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran has not provided evidence to show that it is at least as likely as not that he is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. VA examiners have consistently found the Veteran capable of work with moderate modifications. The Veteran reported he worked as a criminal investigator in Customs and Narcotics for 28 years, and retired in 2001. He then worked in house painting for about a year after retirement. However, the issue is whether the Veteran is capable of performing the physical and mental tasks required by employment, not required by a particular job. A July 2011 VA examination found that the Veteran had occupational impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks due to the service-connected mental disorder, although generally functioning satisfactorily with routine behavior, self-care, and normal concentration. A June 2016 VA examination found that diabetes mellitus did not affect the Veteran’s ability to work. An April 2017 VA examination found that the Veteran had chronic, moderately severe PTSD symptoms that continued to cause occupational and social impairment with occasional decreased work efficiency and intermittent inability to perform occupational tasks, but he was generally functioning satisfactorily with routine behavior, self-care, and normal conversation. The Veteran's PTSD did not make the Veteran unable to obtain or maintain viable or gainful employment. He was able to maintain viable employment for 28 years before retiring from a job as a Criminal investigator in Customs and Narcotics in 2001. His medical conditions and age-related issues would likely cause greater difficulty for the Veteran in regard to his ability to obtain and maintain employment. However, it was the examiner’s estimation that the Veteran's PTSD symptoms would likely cause mild to moderate difficulty in working in high stress environments and/or in jobs in which he was under close supervision. An April 2017 VA examination found that the Veteran’s sleep apnea did not affect his ability to work. A May 2017 VA examination found that the Veteran’s tinnitus impacted his work in that it was distracting during conversations. The examiner found that hearing loss affected the ability to work as the Veteran mixed up words and hearing in noise was a problem, A September 2017 VA examination found that the Veteran’s hypertension did not affect the ability to work. A February 2018 VA examination found that the Veteran’s diabetes affected his employment as he had dietary restrictions and required frequent meals. A February 2018 VA examination found that the Veteran’s hypertension did not affect his ability to work. An October 2020 VA examination found that the Veteran was felt capable of work consistent with a normative sample of other retired males in their seventies as the claimant had presented coherent and functioning work and social history despite the service-connected disabilities. The Veteran presented diminished functioning not dissimilar to an average retired individual. Accommodation in excess of those presented to any normative sample of retired individual in their seventies was not indicated. That examiner also did not find total occupational impairment due to the service-connected psychiatric disability. The Board finds that the preponderance of the evidence is against a finding that the service-connected disabilities make the Veteran unable to secure or follow a substantially gainful occupation. Therefore, the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C. § 5107. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.