Citation Nr: 21022445 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-35 275 DATE: April 15, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with persistent depressive disorder (PDD), formerly characterized as generalized anxiety disorder (GAD), is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability is granted from December 1, 2014, TDIU is denied prior to that date. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD with PDD, formerly characterized as GAD, manifestations do not more closely approximate total occupational and social impairment. 2. From December 1, 2014, the Veteran was unable to secure and follow a substantially gainful occupation as a result of service-connected disability, prior to that date he was not unable to secure and follow a substantially gainful occupation as a result of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD with PDD, formerly characterized as GAD, have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for TDIU are met as of December 1, 2014, the criteria are not met prior to that date. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1981 to October 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board remanded the matter to the RO for the fourth time. It has been returned to the Board. The mental health disorder claim has been re-characterized to accurately reflect the current diagnosis as will be addressed below. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 70 percent PTSD with PDD, formerly characterized as GAD, is denied. The Veteran seeks a rating in excess of 70 percent for this disability. He in essence urges that the disability is essentially productive of total impairment. The Veteran’s PTSD with PDD, formerly characterized as GAD, is assigned a rating of 70 percent under Diagnostic Code 9400. 38 C.F.R. § 4.130. The disability is rated using the General Rating Formula for Mental Disorders (General Formula). While there was substantial discussion in the most recent remand with regard to what the current diagnosis is and whether it is a progression of the earlier service-connected diagnosis of schizophrenia, the most recent examiner explains that the prior diagnosis was simply wrong and the correct diagnosis is PTSD with PDD as opposed to GAD as a progression of schizophrenia. See January 2021 VA examination report. The question for the Board is whether the Veteran’s disability meets or more nearly approximates the criteria for a higher rating. Specifically, a 100 percent rating 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, warrants the maximum, 100 percent disability rating. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The criteria for a rating in excess of 70 percent are not met or approximated at any time. The Board most recently remanded this matter in pertinent part to obtain an opinion on the functional limitations due to his service-connected mental health disorder. The Board found the prior examination record inadequate in this regard. The January 2021 VA PTSD examination report reflects that the Veteran was assessed as demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examining psychologist specifically did not find total occupational and social impairment. Symptoms included depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work like setting. Not present were inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene or disorientation to time or place. The examiner found it was not possible to differentiate what symptom(s) is/are attributable to each diagnosis without resorting to speculation, due to overlap in symptoms between diagnoses. At this in-person examination, he was wearing a mask, consistent with current COVID-19 requirements. Eye contact was good. Speech was well-formed and appropriate. His leg was in constant motion, and he seemed very restless. He was alert and oriented times three. He denied suicidal/homicidal ideation, as well as audio/visual hallucinations. He clarified that the only time he may have been psychotic was just after getting out of the Army when he had his nervous breakdown/break. He reported he has been married for 39 years, but separated for 16 years. He stated, “nobody wants to pay for the divorce.” He has not dated since about 2013. He noted that he lives with a roommate at this point. His parents are in their 80's, and “I'm worried about my parents.” He helps out his parents a lot, because of their age and infirmity. In addition to helping his parents, he also tries to help out at the karate school. After he got out of the service, he had a nervous breakdown, and then tried to do odd jobs for a while. After he got married, he moved to Florida, and worked in daycares, “trying to help kids” as a sports director. He “did that for a while.” He worked at a lot of call centers, for banks, and for research centers. His longest job, in that regard, was about 5 years. He noted that his most recent job was with a school, being a paraprofessional for an autistic child. He had been working with the last job for over 3 years, but he had issues due to his cancer treatment and due to his attitude, and he was eventually fired. When they fired him, they had a police officer on standby, and he was banned from any of the campuses of the school grounds. This was noted in the report as being in March of 2015. He has not worked since then; “I can't seem to pull it together.” He had been there for about 5 years. He has been helping out advising a karate school on how to keep the school running. He reported sexual abuse as a child and in service. He reported that he went through anger management classes a few years ago, through the VA. He is currently prescribed Prazosin, Ariprazole and Paroxetine HCL. He reported regular therapy since about 2013 or 2014. As to the current mental health issue, the examiner stated as follows: The original diagnosis of Schizophrenia was simply wrong. It was based on him having a nervous breakdown, and the breakdown was likely due to his trauma and PTSD symptoms. Therefore, the original diagnosis should have been PTSD, rather than Schizophrenia. He was, instead, diagnosed with GAD, and it was described as a 'progression' of Schizophrenia, but there is no such thing as GAD being a progression of Schizophrenia...again, all along he had an anxiety disorder, so when he was diagnosed with GAD rather than Schizophrenia, that was closer to the correct conceptualization, but not because it was correct that he had Schizophrenia and then it switched to GAD. At any rate, the GAD was also not completely correct, because it did not account for his other trauma symptoms. So, the diagnosis, now, of PTSD and PDD is based on a complete conceptualization of his symptoms based on his history of trauma and his symptoms since then. So, essentially, the new diagnoses are a correction of past erroneous diagnoses. The Board finds that this examination reflects difficulties consistent with the 70 percent level, reflecting no delusions or hallucinations, or suicidal or homicidal ideation or any criteria in support of a 100 percent rating. It is thorough and well-supported and is judged to be the most comprehensive assessment of his level of impairment due to service-connected PTSD with PDD. VA and non-VA treatment records dated throughout the appeal period reflect no manifestations consistent with the 100 percent criteria. While severe impairment is indeed demonstrated, total occupational and social impairment due to PTSD with PDD has not been shown or approximated. The Board assigns significant probative weight to the January 2021 assessment of the well-informed VA examiner on this matter, as it was made by a trained professional and is supported by significant rationale. Simply put, none of the mental health medical records or opinions of record reflect that the Veteran has manifested the symptoms associated with total occupational and social impairment defined above. While the Veteran asserts vaguely that he does meet the criteria, and his statements have been weighted and appreciated, the issue of the degree of mental health impairment is medically complex. Because of this, the Board concludes that the opinion of the VA examiner in 2021 is more probative as to degree of impairment and symptoms. Based on a careful review of all the evidence, the Board finds that during the entirety of the pendency of the claim, an increased rating for PTSD with PDD is not warranted. The Board has considered all psychiatric symptoms in reaching the above conclusions. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence such claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his claim must be denied. 38 C.F.R. §§ 4.3, 4.7 TDIU 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. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. In determining whether unemployability exists, consideration may be given to the 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. 2. TDIU is granted from December 1, 2014, but denied prior to that date. The Veteran contends that manifestations of his service-connected PTSD with PDD, formerly characterized as GAD, realistically render him unemployable from December 1, 2014. The Board agrees. We note that his statements and the rest of the record overwhelmingly support a finding that functional impairment caused by his mental health disorder alone meets the criteria for TDIU from December 1, 2014. Thus, although there was some mention in the last remand about the potential impact of his service-connected noncompensably rated right thumb, referencing a 2012 statement from the Veteran, we find it unnecessary to discuss any such potential impact in order to reach a favorable determination on TDIU. Initially, the Board notes that the Veteran meets the basic schedular rating criteria to be considered for TDIU set forth at 38 C.F.R. § 4.16 (a) inasmuch as he is rated 70 percent for PTSD with PDD, formerly characterized as GAD, from July 24, 2013, and 10 percent each for multiple other disabilities to include right and left knee disabilities, low back disability and radiculopathy of the right and lower extremities from October 15, 2012. He is, again, rated noncompensable for the right thumb disability. The combined rating is 80 percent from July 24, 2013. While this TDIU claim is recognized as being part of the increased rating claim discussed above, which was filed July 24, 2013, the Veteran filed VA forms 21-8940, TDIU claims, on July 28, 2014 and July 19, 2019. He indicated that he stopped working at Reading School District in May 2014, where he had worked since January 2009. Statements from the Veteran and reports from the school district reflect he resigned from his job as a 1:1 educational assistant May 21, 2014 and was not eligible for rehire. He was barred from coming on school district property due to his “intemperate, inappropriate, and hostile” behavior. Had last chance agreement in place. Tardiness was noted in February 2014. In December 2012, he displayed unprofessional behavior such as tardiness and created an antagonistic environment based on disposition and avoidance suggesting hostility toward other females who work with him. In his 2014 VA form 21-8940, the Veteran wrote that he worked at the VA as a vocational rehabilitation counselor in July 2014. In his 2019 VA form 21-8940, he reported that he became too disabled to work as of December 1, 2014. He has a high school diploma and possibly a year of college. The Veteran’s history of work and education is fairly consistently reported, and we find the information as to occupation and functional impact to be sufficient in the current record. It appears to be substantially complete. In the most recent remand, the Board found a void of a sufficient medical opinion that described the impact, if any, of the Veteran’s service-connected disabilities, either singly or jointly, on his ability to perform occupational tasks. Such was obtained in January 2021. The examiner provided a pertinent summary on occupational impact: Individual has intrusive thoughts which interfere with the ability to stay focused on the task at hand. Individual has significant difficulty functioning around other people, has difficulty functioning as a team member, feels uncomfortable around others. Individual is so depressed that s/he has difficulty sustaining energy and motivation to complete assignments at work. Individual has other mental health problems or symptoms, e.g. panic attacks, irritability, suspiciousness, etc., that interfere significantly with the ability to work. We note that the Social Security Administration (SSA) has found the Veteran disabled from work due to the combined effects of his physical impairments and mental health disorder. He cited to employment that ended with his job as a paraeducator in May 2014. He also stated he was an advisor to a martial arts club. He does not provide full dates. This was completed in conjunction with a disability determination dated in March 2015. The Board finds the Veteran’s assertions as to the disabling impact of the service-connected mental health disability on his work ability to be reasonable and not inconsistent with the documented record. The January 2021 VA examiner’s opinion is thorough and well-supported. It is entitled to considerable probative weight. It is certainly not in dispute that this Veteran has an education and has some previous work experience into 2014. However, upon consideration of the statements of the Veteran and the actual findings in the VA and non-VA medical records, in conjunction with the employment records, the Board finds that the evidence is at least evenly balanced for and against this claim. The mental health disorder, variously labeled over the years as explained by the examiner in January 2021, when viewed in practical terms, renders him unemployable for many positions in this particular case, in the Board’s opinion. In addition, the physical disabilities impact more vigorous employment., We are presented with a Veteran with significant impairment who has not sustained work for years. The record is replete with reference to his anger issues, interpersonal difficulties and difficulty with a work setting due to his service-connected mental health disorder. The evidence in favor of TDIU based on service-connected disorders is compelling under the unique facts of this case. The Board finds that he indeed meets the criteria for TDIU as of December 1, 2014. Accordingly, TDIU is granted from December 1, 2014. While we note that the Veteran once reported the date that he stopped working as an educational assistant as in March 2015 rather than May 2014 (in January 2021), we find this likely to have been a mistake, as it is not in his favor and the record clearly shows he stopped working there in May 2014. We also note he reported he ‘helping out’ and trying to help out and advising at a karate school, but also note he reported in January 2021 that “I can’t seem to pull it together.” We do not find overall that this reference to the karate school suggests he is engaged in substantial gainful activity or that he is capable of such in view of the rest of the evidence that supports TDIU as of December 1, 2014.   As to the period on appeal prior to December 1, 2014, the Veteran by his own admission retains the ability to work despite his occupational difficulties. The Board can identify no basis to find that the criteria for TDIU are met prior to December 1, 2014 under these circumstances. The preponderance of the evidence is against the claim for TDIU prior to December 1, 2014. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.