Citation Nr: 21022413 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-07 287 DATE: April 15, 2021 ORDER From September 10, 2018 to October 6, 2020, entitlement to a rating in excess of 50 percent for an acquired psychiatric disability, to include PTSD, is denied. From October 7, 2020, entitlement to a rating in excess of 70 percent for an acquired psychiatric disability, to include PTSD, is denied. From September 10, 2017 to September 9, 2018, entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From September 10, 2018 to October 6, 2020, the Veteran’s acquired psychiatric disability was manifested by occupational and social impairment with reduced reliability and productivity but not by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From October 7, 2020, the Veteran’s acquired psychiatric disability was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood but not by total occupational and social impairment. 3. From September 10, 2017 to September 9, 2018, the Veteran’s service-connected disabilities did not prevent him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for a service-connected acquired psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for a service-connected acquired psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 9411. 3. From September 10, 2017 to September 9, 2018, the criteria for the assignment of TDIU due to service-connected disabilities have not been met. 38 U.S.C. § 1155; 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 1960 to December 1980. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2019, August 2020, and February 2021 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). The appeal was last remanded by the Board in June 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned with the award of service connection for a disability, “staged” ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Under Diagnostic Code 9411, PTSD, a 50 percent rating is warranted if 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9411. 1. From September 10, 2018 to October 6, 2020, entitlement to a rating in excess of 50 percent for an acquired psychiatric disability The Veteran was afforded an in-person VA examination in October 2018. The October 2018 VA examiner noted that the Veteran did not have PTSD. The examiner explained that the Veteran did not report any psychiatric or sleep symptoms causing significant distress or social or occupational impairment. The examiner noted that the Veteran’s report of symptoms was rather vague in nature. The Veteran reported that he typically went to bed between 9:30pm and 10pm and woke up when he felt like it or depending on whether he had things to do such as cutting the grass. The Veteran reported using a CPAP machine and characterized his sleep as unremarkable. The Veteran’s wife reported that she sometimes shook the Veteran when he would stop breathing or talk in his sleep. The examiner noted that the Veteran reported intermittent mood fluctuations but that they were not related to his service. The Veteran described his mood as “pissed off. The Veteran reported avoiding crowds and theaters but denied having difficulty being around people. The Veteran stated that he lived with his wife of 50 years and that his 57-year-old daughter and his granddaughter resided with them. He denied having friends except one good friend he met during service. The examiner noted that the Veteran did not work because the Veteran retired from his 18-year career as a seaman due to prostate cancer. However, the examiner also noted that the Veteran drove for Uber three to four times per week but was debating whether to stop driving because of an accident. His hobbies including collecting and listening to jazz music but “[o]therwise he may feel like there is not much or nothing to do.” The Veteran denied any suicidal ideation, plan, or intent. The examiner stated, “there is no evidence of a chronically experienced mental disorder or symptoms beginning during the military and persisting after the military.” The examiner also noted that the Veteran was not prescribed any mental health medications and did not have any recent mental health care or treatment. The examiner concluded that the Veteran did not report any psychiatric symptoms causing significant distress or social/occupational impairment. The examiner determined that the Veteran’s report of symptoms during the examination did not meet the criteria for the diagnosis of PTSD or a trauma-related disorder. The Veteran submitted an October 2019 psychosocial assessment and employability evaluation completed by a private psychologist. The private psychologist noted that the Veteran’s symptoms included difficulty falling asleep and staying asleep, night sweats, night terrors, hypervigilance, exaggerated startle response, sleeping with weapons under his pillow, intrusive thoughts, flashbacks, numbness, irritability, anger with periods of violence, impaired concentration, generalized anxiety with occasional panic attacks, short-term memory loss, insomnia, bouts of moderately severe depression, feelings of alienation, upsetedness around reminders of the military, distrust of others, and difficulty maintaining interpersonal relationships. The record notes that the Veteran attempted to work part time as an Uber driver in 2018. However, the private psychologist stated: “Based on his education, training, past work experience and current level of symptoms related to his PTSD, it is my professional opinion that he is not a viable rehabilitation candidate, nor is he capable of sustaining substantial, gainful work activity. He is unemployable.” The private psychologist also completed a disability benefits questionnaire dated November 2019. The November 2019 questionnaire noted that the Veteran had a diagnosis of PTSD. The private psychologist determined that the Veteran’s PTSD resulted in total occupational and social impairment and that the Veteran’s symptoms included depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty in understanding complex commands, impaired judgment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adopting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The private psychologist indicated that the Veteran did not have any other symptoms not indicated on the questionnaire. January 2019 and June 2020 VA treatment records document that depression screenings and suicide screenings were negative. When asked if he had little interest or pleasure in doing things, was feeling down, depressed or hopeless, or had thoughts that he would be better off dead or of hurting himself, the Veteran responded not at all to each question. For the period from September 10, 2018 to October 6, 2020, the Veteran is currently rated at 50 percent for his service-connected acquired psychiatric disability, to include PTSD, pursuant to the increased rating awarded in the prior June 2020 remand. The Board finds that for this period a higher, 70 percent rating is not warranted. Initially, the Board acknowledges the Veteran and his attorney’s argument that due to the nonreceipt of a January 2017 supplemental statement of the case (SSOC) an effective date earlier than September 10, 2018 should be awarded for any increased rating for the Veteran’s service-connected acquired psychiatric disability. However, the Board already addressed that contention in the prior June 2020 Board decision, and the Board finds, as it did before, that the contention lacks merit. In order to be entitled to a higher, 70 percent rating the Veteran must exhibit 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 worklike setting); inability to establish and maintain effective relationships. Diagnostic Code 9411. At the outset, the Board affords low probative value to the October 2019 psychosocial assessment and employability evaluation and the November 2019 disability benefits questionnaire provided by the private psychologist based on an October 2019 examination of the Veteran. The Board notes that the Veteran’s reported symptoms during the October 2019 private examination are in complete contrast to the remainder of the record. For example, the October 2019 and November 2019 private opinions note that the Veteran had chronic sleep impairment. However, the Veteran reported during his October 2018 VA examination that he went to bed between 9:30pm and 10pm and would sleep until he felt like it or until he needed to be up to perform a chore. During the October 2018 VA examination the Veteran’s wife reported that she would occasionally wake the Veteran if he stopped breathing or talked while sleeping. The Veteran’s wife did not describe night sweats, night terrors, or, exaggerated startle response as noted in the October 2019 private opinion. Moreover, the October 2019 and November 2019 private opinions also note that the Veteran exhibited an inability to establish and maintain effective relationships. However, the Veteran has remained married for over 50 years and maintained at least one friendship for several decades. The October 2019 private opinion further noted that the Veteran had bouts of moderately severe depression. However, contemporaneous January 2019 and June 2020 VA treatment records are in stark contrast and documented that the Veteran’s depression screenings and suicide screenings were negative. The Board also points out that the October 2019 and November 2019 private opinions concluded that the veteran was either unemployable, or exhibited total occupational and social impairment. Neither examiner explained the basis for those conclusions. Given that the conclusions were unaccompanied by any intelligible rationale, and do not accurately reflect the veteran’s actual work history or psychiatric symptoms, the Board affords the conclusions of the private examiners no probative value as to the impact of the psychiatric impairment on occupational or social functioning. The Board finds that the symptoms detailed in the October 2019 and November 2019 private opinions are inconsistent with the remainder of the evidence of record and affords low probative value to these private opinions. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996). (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Moreover, the Board notes that the benefit of the doubt, with regard to the private opinions, was provided to the Veteran in the prior June 2020 Board decision which increased the Veteran’s rating for his service-connected acquired psychiatric disability to 50 percent. For the period from September 10, 2018 to October 6, 2020, the VA evidence of record does not indicate that the Veteran had social impairment with deficiencies in most areas. Although the Veteran reported having only one good friend, the Veteran has maintained that friendship for decades. Moreover, the Veteran has remained married for over 50 years. The evidence also does not indicate that the Veteran had occupational impairment in most areas. The evidence shows that the Veteran served on active duty for 20 years, followed by work in the food industry, and lastly worked as a seaman for 18 years before retiring due to his prostate cancer. The Veteran continued to work as an Uber driver until at least October 2018. To the extent that the Veteran’s wife reported sleep disturbances during the Veteran’s October 2018 VA examination, the Board notes that the Veteran is currently awarded service connection for obstructive sleep apnea and that the evidence does not show that the sleep disturbances reported by his wife were attributable to the his service-connected acquired psychiatric disability. The probative evidence of record simply does not show that the Veteran’s service-connected acquired psychiatric disability was manifested by the symptoms contemplated in the criteria for an award of a 70 percent rating. Accordingly, for the period from September 10, 2018 to October 6, 2020, a rating in excess of 50 percent for an acquired psychiatric disability is denied. 2. From October 7, 2020, entitlement to a rating in excess of 70 percent for an acquired psychiatric disability On a January 2019 Notice of Disagreement, VA Form 21-0958, the Veteran indicated that he was seeking a 70 percent evaluation for his service-connected acquired psychiatric disability. The Veteran was afforded a VA examination via approved video telehealth in October 2020. The VA examiner noted that the Veteran had been diagnosed with posttraumatic stress disorder and major depressive disorder. The examiner determined that it was possible to differentiate the symptoms attributable to the Veteran’s PTSD and his major depressive disorder. The Veteran’s PTSD symptoms included intrusive recollections of trauma, avoidance behaviors, negative changes in cognitions and mood, and sympathetic nervous system arousal. The Veteran’s major depressive disorder symptoms included depressed mood, loss of interest, feelings of guilt and worthlessness, decreased energy/concentration/appetite, psychomotor retardation/agitation, and passive suicidal ideation with no intent. Insomnia was noted as a symptom of both psychiatric disabilities. The examiner also noted that the Veteran’s major depressive disorder was “a product of (or caused by) the PTSD and can be viewed as worsening of the PTSD.” The examiner determined that the Veteran’s service-connected acquired psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The VA examiner determined that it was not possible to differentiate which impairment was caused by each psychiatric disability. The VA examiner explained that there was overlap in the impact caused by both conditions. The examiner noted that the Veteran lived with his wife of 52 years and their 15-year-old granddaughter. The examiner also noted that the Veteran was retired. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene. The examiner noted that additional symptoms included sleep problems dating back to active duty service which the examiner said was likely due to obstructive sleep apnea related to his PTSD. The examiner also noted that the Veteran’s wife reported that the Veteran had mood swings, became angry about little things, and had poor sleep with combat nightmares. The Veteran did not have suicidal or homicidal ideations, plans, or intent. A February 2021 report of general information documents that during a conversation the Veteran again reiterated that a 70 percent evaluation for his psychiatric disability would be a full grant of his claim and that the period from October 7, 2020 was no longer on appeal. At the outset, the Board acknowledges the Veteran’s statement that he would consider a 70 percent rating for his service-connected acquired psychiatric disability a full grant of the benefit sought. As a result, the RO did not address in the February 2020 SSOC whether an increased rating was warranted for the Veteran’s service-connected acquired psychiatric disability, to include PTSD, for the period from October 7, 2020. However, the Board will adjudicate this period instead of relying solely on the February 2021 report of general information that documented the phone call with the Veteran, but which did not include any actual written statement from the Veteran or his representative. The Board finds, however, that for the period from October 7, 2020 a rating in excess of 70 percent for the Veteran’s service connected acquired psychiatric disability, to include PTSD, is not warranted based on a review of the evidence. To be entitled to a higher, 100 percent rating, the Veteran’s service-connected acquired psychiatric disability must be manifested by 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. 38 C.F.R. § 4.130, Diagnostic Codes 9411. Here, the evidence does not show that the Veteran had gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, was a persistent danger of hurting himself or others, or was disoriented to time or place. While the October 2020 VA examiner’s report noted that the veteran had memory loss, the report noted that the memory loss was mild and included examples such as forgetting names directions, or recent events. Nothing in the record indicates that the Veteran’s memory loss was more severe and manifested by memory loss for names of close relatives, own occupation, or own name as contemplated by the criteria for a 100 percent rating. The Board also notes that the October 2020 VA treatment record contained conflicting information regarding whether the Veteran had suicidal ideations stating in one section that the Veteran had passive ideations and stating in another section that the Veteran did not have any suicidal ideations, plans, or intents. Nonetheless, the Board finds that even in affording the Veteran the benefit of the doubt, passive suicidal ideations are a symptom contemplated by the criteria for a 70 percent rating and that the Veteran did not pose a persistent danger of hurting himself as contemplated by the criteria for a 100 percent rating. Lastly, the Board emphasizes that the Veteran has maintained family relationships including remaining married to his wife of over 50 years. The Board finds that the Veteran’s service-connected acquired psychiatric disability, to include PTSD, is not manifested by total occupational or social impairment. For the period from October 7, 2020, the criteria for a higher, 100 percent rating have not been met and the Veteran’s claim is denied. 3. From September 10, 2017 to September 9, 2018, entitlement to TDIU From September 10, 2017 to September 9, 2018, the Veteran was awarded service connection for a psychiatric disability, to include PTSD, at 50 percent; obstructive sleep apnea at 50 percent; residuals of prostate cancer at 20 percent; a left foot disability at 10 percent; tinnitus at 10 percent; a scar at non-compensable; and a right mandible fracture at non-compensable. From September 10, 2017 to September 9, 2018 the Veteran’s combined evaluation for compensation was 80 percent. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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 such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating may nonetheless be granted on an extraschedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). The Board notes that TDIU was granted in the prior June 2020 Board decision. The RO then issued an award of TDIU with an effective date of September 10, 2018, the date of the Veteran’s supplemental increased rating claim for his service-connected psychiatric disability. The Board notes, however, that a decision has not been rendered regarding whether TDIU is warranted for the period 1 year prior to the filing of the claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). A September 2017 VA treatment record notes a positive PTSD screen. However, the same VA treatment record noted that the Veteran did not have a mental health condition requiring further intervention after evaluation of the Veteran including inquiry about feelings of hopelessness, suicidal thoughts, suicide plan if thoughts are present, and prior suicide attempts. A November 2017 VA treatment record noted that the Veteran had mild to moderate obstructive sleep apnea that was severe during REM sleep. A January 2018 disability benefits questionnaire (DBQ) completed by a private physician noted that the Veteran’s obstructive sleep apnea did not impact his ability to work if the Veteran used his continuous positive airway pressure (CPAP) machine regularly. Despite meeting the schedular rating criteria, the Board finds that for the period one year prior to September 10, 2018, the evidence does not show that an award of TDIU is warranted. The Board notes that there is little medical evidence for this period. However, the September 2017 VA treatment record indicates that the Veteran’s service-connected PTSD was not severe enough to require further intervention based on the positive PTSD screen. Moreover, the January 2018 privately completed DBQ notes that the Veteran’s service-connected obstructive sleep apnea did not cause occupational impairment if the Veteran used his CPAP regularly. The evidence of record for the period from September 10, 2017 to September 9, 2018 is negative for any evidence of unemployability. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of schedular TDIU due to service-connected disabilities for the period from September 10, 2017 to September 9, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Because the record does not show that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, entitlement to TDIU one year prior to September 10, 2018 must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.