Citation Nr: 21014518 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 06-24 116 DATE: March 12, 2021 ORDER An initial 70 percent rating for posttraumatic stress disorder (PTSD) with depressive disorder is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective January 1, 2009. REMANDED Service connection for left foot cold weather injury is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, throughout the appeal period, his PTSD with depressive disorder manifested by occupational and social impairment with deficiencies in most areas but does not more closely approximate total occupational and social impairment. 2. Resolving all reasonable doubt in favor of the Veteran, his service-connected PTSD with depressive disorder precluded him from obtaining and maintaining substantially gainful employment since January 1, 2009. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent for PTSD with depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.125, 4.126, 4.130. 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to July 1990, October 1994 to March 1995, and from March 2004 to December 2004 in the U.S. Army with additional National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) from November 2005 and July 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in December 2019, at which time the Board remanded the issues on appeal for further development. This case has now been returned to the Board for appellate action. The record reflects that the Veteran received a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. See September 2020 BVA Letter. Upon further review, the Veteran does not have a pending hearing request. He provided testimony in a hearing with a Veterans Law Judge in March 2011. The transcript of that hearing is associated with the file and has been considered. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, as in this case, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. PTSD with Depressive Disorder Prior to May 15, 2013 The Veteran’s PTSD was assigned a 50 percent disability evaluation prior to May 15, 2013 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent rating is warranted when the psychiatric disorder results in 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 (e.g., 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. A 70 percent rating is warranted when the psychiatric disorder results in 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. A 100 percent rating is warranted when the psychiatric disorder results in 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. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” The Board notes that the regulations were revised to incorporate the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) rather than the Fourth Edition (DSM-IV). However, these provisions only apply to cases received by or pending before the AOJ on or after August 4, 2014. The change does not apply to cases certified to the Board prior to that date. In this case, the Veteran’s claim was certified to the Board prior to August 4, 2014; therefore, the regulations pertaining to the DSM-IV are for application. As noted above, the Veteran’s PTSD was assigned a 50 percent disability evaluation prior to May 15, 2013. The Board finds that a higher 70 percent rating is warranted for the entire appeal period. Evidence in support of a higher rating includes VA treatment records, VA examinations, and lay statements. Since separation from service, the Veteran’s PTSD with depressive disorder manifested by suicidal ideation, paranoia, and outbursts of anger. Additionally, the Veteran’s psychiatric symptoms have affected his ability to function appropriately in his daily life and in the workplace. A September 2006 VA treatment record notes that the Veteran was “suicidal daily” and he took a medical leave of absence from work. See September 2006 VA Treatment Record. Additionally, in November 2006 the Veteran stated that his suicidal ideation escalated to active intent. See November 2006 Statement in Support of Claim for PTSD. A March 2007 treatment report shows that the Veteran was experiencing both suicidal and homicidal ideation and stated that he suffered from paranoid delusions that “others (government) are out to get him.” See March 2007 Medical Treatment Record. The examiner concluded that the Veteran’s symptoms caused significant impairment in social and occupational function. An April 2009 VA examination shows that the Veteran suffered from suicidal thoughts, delusions, conflicts with family and peers, and violence and assaultive-ness. Additionally, the Veteran described that he “recently ran off a young kid who blocked his driveway and threatened to retaliate.” The Veteran submitted a Vocational Expert Report in January 2021. After reviewing the Veteran’s record, the examiner opined that the record shows that he has been suffering from severe symptoms due to his PTSD, including suicidal and violent thoughts, paranoid delusions, and impaired interpersonal relationships throughout the period on appeal. When considering the frequency, severity, and duration of the Veteran’s symptomatology and when resolving all reasonable doubt in his favor, the Board finds that the evidence shows that his PTSD caused social and occupational impairment with deficiencies in most areas. The Veteran experienced persistent suicidal ideation, poor impulse control, and violent outbursts which impaired his ability to work and maintain functional relationships, since separation from service. The Board notes the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board acknowledges that the evidence of record does not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating for PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list but serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the Board finds that there is occupational and social impairment with deficiencies in most areas sufficient to warrant a 70 percent rating, even though all of the specific symptoms listed for a 70 percent rating are not manifested. Consideration has been given to assigning a higher rating for PTSD. While the Veteran has demonstrated severe symptoms associated with his PTSD, overall evidence is not reflective of total occupational and social impairment. The Veteran did not have any hallucinations and he has not been disoriented as to time and or place. He has not demonstrated severe memory loss, such as memory loss of names of close relatives, his own occupation, or his own name. The Veteran also has not been found to be in persistent danger of hurting himself or others. Additionally, there is no indication from the record that the Veteran has experienced difficulty in maintaining his hygiene or that he is unable to complete activities of daily living. Further, there is no indication from the record that the Veteran has experienced significant impairment in speech, thought processes, or judgment. Additionally, his PTSD did not prevent him from working. The Board also finds that the record does not establish that the Veteran’s symptoms occurred with enough frequency or duration to warrant a 100 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (ratings are assigned based on the frequency, severity, and duration of symptoms). Accordingly, the Board finds that an initial rating of 70 percent rating, but no higher, for PTSD with depressive disorder is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Prior to July 26, 2015 The Veteran contends that a TDIU should be assigned effective January 1, 2009 because he was unable to obtain and maintain employment due to his service-connected PTSD with depressive disorder. After a review of all the evidence, lay and medical, the Board finds that entitlement to TDIU is warranted effective January 1, 2009. It is the established policy of VA 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income.” Governing regulation provides that marginal employment shall not be considered substantially gainful employment. For these purposes, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a fact found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Throughout the appeal period, the Veteran was service connected for PTSD, residuals of fistulotomy with impaired sphincter control, and right foot cold weather injury. As decided above, the Veteran is rated at 70 percent for PTSD since December 22, 2004. Accordingly, the Veteran has met the schedular criteria for a TDIU. Regarding the Veteran’s educational history. the record shows that the Veteran started college in 1991 and completed a degree in criminal justice in December 2012 with a grade point average of 1.78. See September 2015 Correspondence. Regarding the Veteran’s employment history, the record shows that he was terminated from employment in December 2008. Thereafter, the Veteran tried a customer care call center job for one month, but he could not trust the “unscrupulous management.” See April 2009 VA Examination. Additionally, the Veteran worked as a part-time substitute teacher from September 2010 to May 2013. In 2012, the Veteran was also hired part-time by the United States Postal Service (USPS); however, after three months he was asked to resign. He was hired again by the USPS in June 2013 as a part-time rural carrier associate. In April 2015, his position was converted into a full-time position as a city carrier, however he was terminated in July 2015 due to “unsafe work practices/multiple accidents.” See September 2016 Correspondence. Regarding functional impairment, the Board finds that the Veteran’s service-connected PTSD with depressive disorder precluded him from maintaining a substantially gainful occupation since January 2009. The record shows that the Veteran participated in VA’s Vocational Rehabilitation and Employment (VR&E) Program. In January 2011 and November 2012, the Veteran’s VR&E Counselor found that he was entitled to a serious employment handicap due to the fact that his service-connected disabilities contributed in substantial part to the vocational impairment and the Veteran had not overcome the effects if the impairment through further education, transferrable skills, or obtaining and maintaining suitable work. Specifically, the counselor found that the Veteran was very limited in employment opportunities due to his reported cold residual injuries, especially when coupled with his ongoing mental health and anxiety issues, low level employment, and financial concerns. In November 2012, the Veteran reported that his anxiety condition was aggravated by being a substitute teacher due to the stress of dealing with students, faculty, and parents. See November 2012 Counseling Record-Narrative Report. In March 2017, the Veteran’s VR&E counselor stated that the Veteran’s mood disorder symptoms have affected his previous work history due to significant stress, pressure, demanding time frames, and working around crowded spaces or lots of people. Additionally, the Veteran’s counselor stated that the Veteran had to take time off from work and has not been able to perform the essential functions of a held job due to his service-connected disabilities. In October 2019, after reviewing the Veteran’s file, a private physician opined that from 2009 through 2015, the Veteran was dangerous, threatening, and severely mentally ill with profound paranoia, all related to his PTSD. Additionally, the physician opined that the Veteran’s legal issues were related to his financial and interpersonal dysfunction, which stem from his severe mental illness. The physician opined that after being laid off in December 2008, he was no longer able to manage any type of formal occupational setting and his behaviors, actions, and symptoms in occupational settings were untenable for employers. In February 2021, after reviewing the Veteran’s records, education, and work history, and after interviewing the Veteran, a private vocational expert opined that the Veteran’s PTSD symptoms have rendered him completely impaired and that he has been incapable of maintaining gainful employment since January 2009. While a TDIU may be granted if employment is marginal, part-time positions are not de facto marginal employment. Whether part-time employment is marginal is determined by whether a veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts-found basis. In this case, the Board finds that the Veteran’s employment has been marginal since January 2009. In 2009, the Veteran’s reported income exceeded the poverty threshold, however this was due to receiving a severance package from his previous employer. See September 2016 Correspondence. Additionally, the Veteran’s income in 2010, 2011, and 2013 was below the poverty threshold. Id. In 2012, the Veteran was hired by the USPS, however he resigned only after three months and while he worked part-time as a substitute teacher, his earnings from this job fell below the poverty threshold. In 2014 and 2015, the Veteran’s income was just over the poverty threshold; however, the Board finds that he was unable to maintain a substantially gainful occupation. Notably, after only three months of working a full-time position, the Veteran was fired from the USPS due to “unsafe work practices/multiple accidents.” See September 2016 Correspondence. In a June 2016 private opinion, a physician opined that the Veteran has been unable to function in an occupational environment due to his mental illness marked by unpredictability, volatility, aggressiveness, cognitive disturbance, severely altered interpersonal relationships, and inconsistency of function. Additionally, the physician found that the Veteran was fired from the USPS due to his behaviors, actions, and symptoms directly related to his behaviors with other employees, incapacity to focus and concentrate, and loss of executive functioning. Based on the foregoing, the Board finds that a TDIU is warranted effective January 1, 2009. While the evidence of record shows that the Veteran was able to obtain employment prior to July 26, 2015, he was not able to maintain a substantially gainful occupation. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that his service-connected PTSD with depressive disorder has prohibited him from obtaining and maintaining substantially gainful employment since January 1, 2009. REASONS FOR REMAND Service Connection for Left Foot Cold Weather Injury The Veteran contends that his left foot disability is related to a cold weather injury during service. An addendum opinion was obtained in February 2020. The physician opined that the Veteran does not have any residuals as a result of his cold weather exposure to his left foot while on active duty in the military. The rationale stated that the majority of evidence reviewed does not suggest a nexus link between the Veteran’s left foot condition and military service, therefore it is less likely than not due to, caused by, or incurred during military service. Additionally, the examiner stated that the Veteran’s current left foot condition is not consistent with cold water injury. The Board finds that the February 2020 opinion is inadequate for adjudication purposes because it is conclusory and it is unclear as to whether the physician considered the Veteran’s reported symptoms during the appeal period, including excessive sweating or hyperhidrosis, paresthesias, numbness, tingling, discoloration, arthralgia, and tissue loss. See September 2011, May 2013, and July 2015 VA Examinations. Additionally, the physician stated that service treatment records are silent for evidence that his left foot was involved in cold weather injury, however the Veteran’s service treatment records show that he was hospitalized due to cold weather exposure in January 1995 and state that he had a tender left foot and burning and sweating in both feet. See STRs Received March 2018. Accordingly, another addendum opinion should be obtained on remand. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate physician to determine the nature and etiology of the Veteran’s left foot disability. The claims file must be made available to the physician and review should be noted. If an examination is deemed necessary by the physician, then one should be scheduled, and all necessary testing should be completed. The examiner should identify any current left foot disability the Veteran has presented during the claim period (i.e. from December 2004 to the present). For each identified diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the disability (a) had its onset during active service; or (b) is otherwise related to any in-service injury, event, or disease. The physician should consider the Veteran’s reported symptoms during the appeal period, including excessive sweating or hyperhidrosis, paresthesias, numbness, tingling, discoloration, arthralgia, and tissue loss. See September 2011, May 2013, and July 2015 VA Examinations. The examiner should consider all medical and lay evidence of record, including the January 1995 STRs noting that the Veteran reported problems with both feet and that he was out in the cold with his feet sweating for two hours in combat boots and experienced his feet burning and that his left foot was tender. (See VBMS, document labeled STR-Medical, receipt date 3/28/2018, pages 4, 6 of 10), and that he was treated with a foot hood (sheet) over both feet (See VBMS, document labeled STR-Medical, receipt date 3/28/2018, page 5 of 10; and VBMS, document labeled STR-Medical, receipt date 3/28/2018, page 2 of 3). The physician must provide a complete rationale for all opinions offered. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.