Citation Nr: 21020776 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-49 814 DATE: April 8, 2021 ORDER Effective January 28, 2020, a 70 percent rating for the psychiatric disability is granted. Prior to January 28, 2020, a rating in excess of 50 percent for the psychiatric disability is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The psychiatric disability is more analogous to deficiencies in most areas as of January 28, 2020; prior to January 28, 2020, the psychiatric disability does not approximate worse than reduced reliability and productivity. 2. The service connected disabilities have not rendered the Veteran unemployable to warrant a TDIU or referral for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating effective January 28, 2020, for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.126, 4.130 Diagnostic Code 9411. 2. The criteria for rating in excess of 50 percent prior to January 28, 2020, or 70 percent thereafter for a psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130 Diagnostic Code 9411. 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1969 to September 1971. A videoconference hearing was held before the undersigned Veterans Law Judge in June 2019. The transcript is of record. 1. Psychiatric Disability The psychiatric disability is evaluated under Diagnostic Code 9411, which provides a 50 percent disability rating when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when the evidence shows 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); and inability to establish and maintain effective relationships. 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 and place, memory loss for names of close relatives, own occupation, or own name. The symptoms listed are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall 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). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). An October 2014 VA examination record reveals diagnosis of psychiatric disability with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examiner explained that the Veteran’s current severe major depressive disorder and alcohol use disorder were most likely caused by or a result of the Veteran’s posttraumatic stress disorder. The Veteran reported that he was married and that his marriage was “rough” but “better.” He explained that he had a tendency to jump to conclusions and he gets frustrated when he does not get his way. He reported diminished socialization because he gets nervous around people. He explained that he can tolerate the anxiety but prefers to not be around others. He reported good relationships with his sons, though they disagree “a lot.” He reported that he retired from the plumbing profession in 2006 and then worked as a seasonal worker on a golf course. He reported that he could not handle it due to lack of motivation and difficulty with others. He reported difficulties with short-term memory for recently learned information and forgetting people’s names. He also reported sleep impairment. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, and difficulty in adapting to stressful circumstances. The examiner noted that the Veteran had good hygiene and grooming and normal speech and though process. The denied suicidal or homicidal ideation, and there was no indication of delusion or hallucination. Insight and judgment were intact. A December 2019 VA examination record reveals diagnosis of posttraumatic stress disorder (PTSD), adjustment disorder with mixed anxiety and depressed mood, and alcohol use disorder. The examiner reported that the PTSD was manifested by distressing memories, nightmares, avoidance behaviors, shame, self-blame, excessive guilt, more detached from others, hypervigilance, easily startled, sleep disturbance during memories or nightmares, and concentration issues during distressing thoughts of the war. The examiner reported that the adjustment disorder was manifested by anxiety, frustration, and low mood primarily due to stress from severe chronic pain and tinnitus with additional stress from multiple life changes since his retirement, relocations, marital problems, and lack of supports; feels worthless from his limitations; often worries about his long-term mobility issues; sleep disturbance due to discomfort from severe chronic pain and tinnitus, which causes him to feel irritable and frustrated; lost motivation; feels nervous and anxious around unfamiliar people and prefers not to interact with them; intermittent poor concentration and mild memory problems, and difficulty “carrying on a conversation” and interacting with others, “especially when my anxiety is too high.” The examiner reported that the disorders overlap and exacerbate each other. The examiner determined that the psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The record reflects the Veteran’s history of good relationship with his siblings, indicating that they talk on the phone when his siblings call. He reported a good relationship with his sons, though he reported a hard time carrying on a conversation with them. He reported that his social life declined after he moved and when his physical conditions worsened to where he can no longer do most of the things he used to. He denied local friends. The Veteran reported working as a plumber and then as a seasonal maintenance working until June 2019 because of his knees. The Veteran reported that he attends a trauma recovery group but sometimes does not attend due to anxiety. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining relationships. The examiner noted that the Veteran was dressed appropriately, with unremarkable grooming and hygiene. The Veteran was able to reciprocate conversation and interacted appropriately. Thought process and content were linear and logical, and judgment and insight appeared intact. He was fully oriented and denied suicidal or homicidal ideation. The examiner stated that the psychiatric disability may result in work-related issues due to occasional unexpected absences due to high anxiety and/or low motivation, communication struggles during high anxiety states, possible disengagement in areas where group participation is needed, unintended task errors or reduced productivity during times of poor concentration, focus, or memory, and/or reduced performance or non-performance in certain physical activities when he feels it may compromise or exacerbate his current physical conditions/chronic pain issues. A January 2020 VA treatment record reveals the Veteran’s history of increased isolation and decreased memory. He explained that he is not remembering what he reads. He stated that he finds himself with “nothing to say” to his family. He reported sleep impairment. The record notes that the Veteran was well-oriented and demonstrated no difficulty in maintaining attention or concentration. Judgment and insight appeared intact, and memory functioning appeared adequate. Thought process was logical and goal-directed. Speech was within normal limits. The record reports that the Veteran endorsed passive suicidal thoughts but denied plan or intent. March 2020 VA treatment records reveal the Veteran’s history that he experiences reminders and triggers on a regular basis. He reported that he is often triggered by his children and grandchildren who his wife talks to daily and who he sees several times per week. He reported that he isolates in his room “at times” when the children are at his home. He reported that he does not like being around people or going to social events because it makes him feel nervous and unable to relax. He reported feeling unsettled around others because of difficulty carrying on a conversation. He reported sadness due to inability to connect with his children. He reported struggling with his ability to focus and concentrate. The record notes that the Veteran attended the trauma recovery group on a sporadic basis due to feelings that he did not belong due to communication struggles and feeling uncomfortable around other people. The Veteran denied suicidal or homicidal ideation. The record indicates that the Veteran was well-groomed and well oriented. Speech was clear and coherent, and the Veteran demonstrated no difficulty in maintaining attention or concentration. Memory appeared normal, and thought process was logical, goal-directed, and future oriented. Insight and judgment appeared intact. VA group records dated in April and May 2020 report that the Veteran was an engaged, attentive, and active participant in group therapy. The record report that the Veteran appeared alert and oriented without evidence of paranoia, delusion, or hallucination. Speech was unremarkable, and there was no evidence of suicidal or homicidal ideation. A September 2020 VA examination record reveals diagnosis of PTSD. The examiner reported that the PTSD resulted in occupational and social impairment with reduced reliability and productivity. The record reports that the Veteran was working full-time as maintenance staff and that he enjoyed his job and had only minor difficulties performing work duties. The examiner noted symptoms of anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, impairment of short- and long-term memory, flattened affect, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining relationships. The examiner reported that the Veteran was well-groomed with normal speech. Mobility of affect never changed much. Thought process was organized, coherent, and linear. The Veteran had no difficulty presenting a series of ideas that formed a logical progression from the initial point to the goal of the thought. There was no evidence of suicidal or homicidal ideation. The examiner reported that the PTSD symptoms “may very well create significant difficulty” with respect to the Veteran’s ability to adapt to stressful circumstances within an occupational setting and would result in difficulty performing employment activities that need to be completed in a step-by-step manner. A September 22, 2020, VA record reveals the Veteran’s history of increased symptoms since his medications had run out. The Veteran reported active treatment at the Vet Center, which had been helpful. He reported feeing increasingly sad and agreed to restart medications. A September 23, 2020, VA treatment record reveals the Veteran’s history that his medications ran out. The record reveals the Veteran’s history that his wife believed they were helpful for his anger and anxiety. The Veteran reported sleep impairment, anger, and irritability. He reported trouble with his memory and concentration. He emphatically denied suicidal or homicidal ideation. The record indicates that the Veteran was fully oriented with normal thought process and content. Cognition was grossly intact, and insight and judgment were good. The record indicates that the Veteran was working part-time as a seasonal operator. A September 23, 2020, VA suicide risk evaluation record reveals the Veteran’s history of suicidal ideation within the previous 30 days. The Veteran explained that he was overwhelmed by his physical disabilities, atmospheric smoke, and coronavirus. After consideration of the evidence, the Board finds a 70 percent rating is warranted effective January 28, 2020, the date of the first history of passive suicidal thoughts, based on the new report of passive suicidal thoughts, in conjunction with the evidence of deficiencies in mood, difficulty establishing and maintaining relationships, and difficulty adapting to stressful circumstances. A total schedular rating is not warranted at any point from January 28, 2020. Notably, the record does not suggest impairment more severe than “deficiencies in most areas,” which is the impairment contemplated by the 70 percent rating. The September 2020 VA examiners determined the psychiatric disability resulted in impairment less severe than total, and the clinical findings and reported histories do not suggest total impairment. The record, including the Veteran’s own histories, indicate that he has maintained relationships with family and has maintained contact with reality and has demonstrated no impairment of speech, thought process, orientation, impulse control, or ability to perform activities of daily living such as hygiene. He has been able to provide her own history during examination and other medical treatment and in conjunction with the appeal. Although the record reveals two histories of suicidal ideation during this period, the record does not suggest that the Veteran has any plan or intent to harm himself or others. In sum, the Board finds the record does not suggest total impairment, particularly total social impairment, or otherwise more nearly approximate the disability picture contemplated by the total rating. The Board finds a rating in excess of 70 percent is not warranted prior to January 28, 2020. Prior to this date, the Veteran consistently denies any suicidal ideation, and the record shows no deficiency in appearance, orientation, speech, thought process, thought content, or judgment. Although there is a finding of difficulty in adapting to stressful circumstances in 2014, that finding is not reported by the 2019 VA examiner, the Veteran is able to maintain work during that period, and there is no evidence of impairment of impulse control or impairment of ability to perform activities of daily living. Additionally, although the Veteran reported impaired concentration and memory, clinical testing reveals at most mild impairment of memory, which the Board finds is not analogous to a deficiency in memory; the Board finds the clinical testing is more probative in assessing the impairment of memory and concentration associated with the psychiatric disability. The Board acknowledges that the record indicates that the Veteran has social impairment during this period. He is able to maintain conversations and relationships with family members, however, even if not initiated by himself, and the Board notes that a higher rating may not be assigned solely based on social impairment. In sum, the Board finds the probative evidence does not support a finding that the service-connected disability resulted in or more nearly approximated, deficiencies in most areas prior to January 28, 2020. 2. TDIU A TDIU may be assigned if 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 as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that 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). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). 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 render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Service connection is in effect for the psychiatric disability, lumbar spine disability, tinnitus, and residual scar. The Veteran meets the schedular criteria for a TDIU effective January 28, 2020, based on the Board’s decision herein. In July 2020, the Veteran filed a VA form 21-8940, reporting inability to secure or follow substantially gainful employment due to posttraumatic stress disorder, low back disability, and bilateral knee disability. He reported that he last worked full time in 2018, earning $8000 in one year. He also reported working until June 2019 as an operator at a golf course. The Veteran explained that he was only able to work approximately two months in 2019 due to his disabilities. In September 2020, the Veteran filed another VA form 21-8940, reporting inability to secure or follow substantially gainful employment due solely to posttraumatic stress disorder. He reported that he last worked full time in July 2019. In September 2020, VA received a VA form 21-4192 from the Veteran’s employer reporting that the Veteran quit working due to disability in July 2019. The employer reported that the Veteran worked variable hours up to 25 hours per week. The form reports that the Veteran’s PTSD prevented him from performing his military duties. The September 2020 VA examination record reveals the Veteran’s history that he was working full-time. The Board notes that the record includes conflicting evidence as to whether the Veteran was working after July 2019. The amounts provided by the Veteran and his employer and the Veteran’s histories that the work was seasonal indicate that the Veteran’s employment during the period of the claim may not have been substantially gainful. Solely for the purposes of this decision, the Board will assume that the Veteran’s employment was not substantially gainful so as to preclude entitlement to a TDIU. (Continued on the next page)   The Board finds the probative evidence does not suggest that the service-connected disabilities rendered the Veteran unable to obtain or maintain substantially gainful employment as defined by VA so as to warrant a TDIU or referral for extraschedular consideration. Specifically, the Board finds that VA examination and treatment records do not indicate impairment sufficiently significant to result in unemployability. Although the Veteran reported in September 2020 that his was unable to work solely due to PTSD, the Veteran testified in June 2019 that his nonservice-connected knee disorders are what rendered him unemployable. The Board finds the record does not suggest that the service-connected disabilities would prevent him from performing his current job or something similar in a substantially gainful manner. Notably, the psychiatric disability is never shown to interfere with independent functioning, and although it and the lumbar spine disability and tinnitus result in some impairment of occupational functioning, the record does not suggest that these disabilities would render the Veteran unemployable. The Board has considered the doctrine of reasonable doubt in reaching this decision as well but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Thus, the claim is denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.