Citation Nr: 21014862 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-28 537 DATE: March 16, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran’s PTSD symptoms of suicidal ideation, 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), difficulty in adapting to stressful circumstances (including work or a worklike setting), and inability to establish and maintain effective relationships manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran’s PTSD symptoms has precluded him from maintaining or obtaining substantially gainful employment throughout the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 9411 (2020). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1979 to December 1987 and from April 2006 to February 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. These matters were previously before the Board but were remanded for additional development in December 2019. In a May 2020 supplemental statement of the case (SSOC), his claims for an initial increased rating in excess of 70 percent for PTSD and TDIU was denied. These matters are again before the Board for adjudication. 1. Entitlement to an initial rating in excess of 70 percent for PTSD denied. The Veteran seeks an initial rating in excess of 70 percent for his PTSD. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. A 70 percent rating is assigned when 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. Based on consideration or the relevant lay and medical evidence, the Board finds that his symptoms more closely approximated the symptoms contemplated under a 70 percent rating. The Board notes that while the May 2013 VA examiner reported PTSD symptoms consistent with those under a 70 percent rating, that VA examiner ultimately stated that his symptoms caused occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This is consistent with a lower rating of 50 percent. However, the November 2014 and February 2015 VA examiner stated that his PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgment, thinking and/or mood. A March 2020 VA examiner, who noted that the Veteran’s TBI and PTSD symptoms could not be differentiated, further concluded that his symptoms resulted in occupational and social impairment in most areas. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that his PTSD symptoms more closely approximated a 70 percent rating. The evidence also demonstrates many symptoms consistent with a 70 percent rating. The Veteran’s continuous suicidal ideation, near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively, and inability to establish and maintain effective relationships are of the severity, frequency, and duration considered under a 70 percent rating. Moreover, the Veteran’s report of getting angry and damaging his personal properties such as doors and getting into fights are contemplated within the impaired impulse control considered under a 70 percent rating. As such, the Board finds that the Veteran’s disability picture most closely approximated the symptoms contemplated under a 70 percent rating throughout the period on appeal. However, the preponderance of the evidence is against the assignment of a 100 percent rating for the Veteran’s PTSD at any point during the pertinent appeal period. While total occupational impairment is indicated, as discussed in the adjudication of the TDIU claim below, a 100 percent rating requires the presence of both total occupational and social impairment. Here, total social impairment is not shown by the record. Specifically, the Veteran reported having a good relationship with his mother, first ex-wife, and sons. The Veteran further reported during a March 2020 VA examination that while he does not get along with his brother, he speaks to his sister every few months. He also reported that he has a girlfriend of four years and enjoys eating out with her. Moreover, while he does not have many friends and prefers to be alone, the evidence shows that he does have a few friends and likes to go out more than staying home. The Board acknowledge that the Veteran has a history of suicidal ideation and plan. However, the evidence does not show that the Veteran has intentions to follow through on his thoughts. Moreover, he reported these thoughts of death often occurs when he is very angry. The Veteran has further stated that while he has suicidal ideation, he reports protective factors such as talking to his son or keeping himself busy by fixing up stuff around the house to not follow throughout on his thoughts. The Board recognizes that the Veteran reported that his two motorcycle accidents in 2012 and 2013 were suicide attempts and that he occasionally continues to ride his motorcycle at a rate of 88 miles per hour. Aside from these periodic reports, the evidence throughout the entire period on appeal does not reflect additional suicide attempts. Moreover, while the evidence indicates that he shot someone in the stomach in 2012, the Veteran has consistently reported that he shot the person in self-defense. Additionally, his reported fight in February 2013 was attributed to defending a friend at a bar. Aside from these reports, the evidence remains largely absent of persistent harm to self or others. As such, the Board concludes that these reports alone are not sufficient to satisfy the severity, frequency, and duration considered under a 100 percent disability rating. The Board further acknowledge that the Veteran continuously complained about his memory and concentration problems throughout the entire period on appeal. However, as reported by the May 2013, November 2014, February 2015, and March 2020 VA examiners, his memory problems have been consistent with mild memory loss or impairment of short- and long-term memory. These findings are consistent with those contemplated under a 50 percent and 70 percent rating. Further, his VA treatment records consistently shows that his concentration is generally within normal limits and intact. The evidence throughout the entire period on appeal also does not show that he has memory loss of names of close relatives, his own occupation, or his own name. The Board has further considered the June 2013 and February 2014 VA neuropsychological evaluations. However, the results were inconclusive and does not provide any evidence that his cognitive impairment would reach the level of severity contemplated under a 100 percent rating. The Board acknowledge that the Veteran experiences some symptoms contemplated by a 100 percent rating. However, the overall evidence does not demonstrate that these symptoms reaches the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. As the criteria for a 100 percent are not met, the Veteran’s claim for an initial rating in excess of 70 percent must be denied. 2. Entitlement to TDIU is granted. The Veteran further seeks entitlement to a TDIU. Specifically, he testified that he was laid off from work since January 2015 due to his struggling performance. See February 2016 Notice of Disagreement. He stated he did not have these issues until he returned home from serving in Columbia and Iraq. Id. Considering the Veteran’s January 2015 NOD that he was laid off due to his struggling performance, the Board finds that the Veteran’s TDIU claim is inferred by the record and is part of his initial increased rating claim for his PTSD. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16 (a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the rating to 70 percent or more. Here, the Veteran is service connected only for his PTSD at 70 percent from September 19, 2012. As the evidence shows that he has a single disability rated at 70 percent, he meets the schedular criteria set forth in 38 C.F.R. § 4.16 (a). Thus, the remaining question before the Board is whether his service-connected disabilities have precluded him, or are capable of precluding him, from engaging in substantially gainful employment. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment,” holding that there is both an economic and a noneconomic component; 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. The record shows that the Veteran completed high school and had one year of college education. See May 2013 C&P Examination and July 2010 Application for Increased Compensation Based on Unemployability (VA Form 21-8940). He further reported that he attended a vocational school in Miami during the day to get his air frame and powerplant (A&P) license but did not received the license until later in the Navy. See May 2013 C&P Examination. The pertinent evidence has been summarized in the sections above and additional recitation is not necessary. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that his service-connected PTSD has prevented him from securing or following substantially gainful employment throughout the entire period on appeal. The evidence shows that the Veteran was struggling with his performance and workload throughout 2013 and was eventually put on a performance plan. See July 2014 Third Party Correspondence. Eventually, due to his inability to meet performance expectations, his employment was terminated on January 27, 2015. Although the evidence demonstrates that he started a lawn care business during his probation period, he reported having only two paying customers and received a total of 50 dollars a month. See October 2019 Board Hearing. He reported having a lot of issues with scheduling because he would get really frustrated with customers and could not deal with their complaints. He ultimately stated that he could not work in customer-based employment. Recent VA treatment records, VA examination, and private treatment records continues to show that he has been unemployed since January 27, 2015. Although the Veteran started his own law care business, the Board finds that it does not amount to substantially gainful employment. Thus, the Board finds that the economic component under Ray is met. As for the non-economic component, aside from completing high school and obtaining an A&P license, the Veteran is vocationally limited to the extent that he has not obtained a college degree. His employment history reflects serving as an aviation structural mechanic during his military, building tuna towers and fishing boats. He also worked as an aircraft and powerplant mechanic for three years prior to getting laid off. Notably, the Veteran worked as a supervisor for South Florida Water Management for about 15 years before he was terminated. Further, while SSA records determined he was not disabled, the SSA found that he was: moderately limited in understanding short and simple instruction, carrying out detailed instructions, maintaining attention and concentration for extended periods, or working with or in proximity to others, completing a normal workday/week without unreasonable number and length of rest. He also had limitation in social interaction. As such, the SSA stated that he did not have the residual functional capacity to perform his past relevant work as a supervisor. Although the SSA noted he is capable of doing other work, the Veteran has worked as a supervisor for the past 15 years. Considering his mental limitations and previous work experience, it is unlikely that he will be able to obtain substantially gainful employment as supervisor. Moreover, while the Veteran does not have any service-connected disabilities that causes physical limitations, the evidence shows that his service-connected PTSD causes significant limitations in his memory, concentration, ability to adapt to change or stressful circumstances, handle workplace stress, or establish and maintain effective work and social relationships. As noted in the May 2013, November 2014, February 2015, and March 2020 VA examination, his PTSD symptoms resulted in symptoms to include: disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, impaired impulse control, such as unprovoked irritability with periods of violence, and mild memory. A December 2017 private psychiatric evaluation further reflects the Veteran’s ongoing issues related to his memory, concentration, and ability to handle stress and new areas of responsibilities. Based on review of the Veteran’s background information, behavioral observations during testing, and psychological test results, the December 2017 private psychiatrist stated that he was not capable of performing substantially gainful employment due to his mental health. Considering the Veteran’s vocational level, previous work history, and mental limitations, the Board finds that the non-economic component under Ray has been met. Thus, based on the foregoing evidence, the Board finds that the Veteran has been unable to sustain substantially gainful employment throughout the entire period on appeal. As such, the Board finds that TDIU is warranted from September 19, 2012. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.