Citation Nr: 21022688 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 09-31 528 DATE: April 19, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 2, 2016, and in excess of 70 percent from July 2, 2016 is denied. REMANDED Entitlement to total disability based on unemployability of the individual (TDIU) prior to July 2, 2016 is remanded. FINDING OF FACT The Veteran’s PTSD symptoms did not more nearly approximate a rating above 50 percent in his initial evaluation and the symptoms do not currently approximate a rating in excess of 70 percent. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 50 percent for PTSD, and in excess of 70 percent from July 2, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1967 to January 1969. The Veteran saw combat in Vietnam and is a highly decorated Veteran. Specifically, the Veteran has been awarded the Army Commendation Medal with Valor, the Combat Infantryman Badge, Vietnam Service Medal, and the Vietnam Campaign Medal with Device. The Board of Veterans’ Appeals (Board) recognizes the Veteran and thanks him for his service. This matter comes to the Board from an initial November 2008 rating decision, granting the Veteran service connection for PTSD with an evaluation of 30 percent. The Veteran appealed the evaluation and the Board remanded the issue in October 2015 to obtain a more recent examination and to further develop the claim. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). In March 2016, the Department of Veterans Affairs (VA) Regional Office (RO) issued a partial grant on the Veteran’s claim, increasing his evaluation for service-connected PTSD from 30 percent to 50 percent. The Board again remanded the issue in January 2017, stating that the VA must obtain any and all outstanding records related to the Veteran’s condition and schedule the Veteran for a new VA examination to determine the current severity of the service-connected PTSD. In June 2017, the RO issued another partial grant on his claim, increasing the rating from 50 percent to 70 percent, with an effective date of July 2, 2016. The Veteran received a supplemental statement of the case (SSOC) in July 2020, denying his claim to an initial evaluation in excess of 50 percent for PTSD, and in excess of 70 percent from July 2, 2016. The Board notes that in July 2020, the Veteran was officially assigned a grant for total disability based on individual unemployability (TDIU) due to his PTSD effective July 2, 2016. 38 C.F.R § 4.16. As such, the issue of TDIU for the period prior to July 2, 2016 remains before the Board. The claim for an increase in evaluation for the Veteran’s service-connected PTSD now returns to the Board. The Board is satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD), and in excess of 70 percent from July 2, 2016 The Veteran is rated at 50 percent for his initial evaluation of service-connected PTSD and 70 percent for his PTSD since July 2016. The Veteran contends that his symptoms are more severe than they are currently rated. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999).  The rating criteria for rating mental disorders reads as follows:  A 100 percent rating requires 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.  A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 50 percent rating requires 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. Id. A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove references to the DSM-IV and replace them with references to the updated DSM, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094; 38 C.F.R. § 4.125. The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA has clarified that the provisions of the rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117.  Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Board shall consider all information and lay and medical evidence of record in a case before it, with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465 (1994).  In determining whether an increased disability rating is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran underwent an initial VA examination in September 2008. The examiner detailed the Veteran’s military service, his medical history, his military information, familial history, and multiple stressors and traumatic events that the Veteran described. The examiner diagnosed the Veteran with PTSD, stating that the psychiatric symptoms cause occupational and social impairment with occasional decreased work efficiency and intermittent ability to provide occupational tasks. The examiner continued by noting that generally the Veteran functions satisfactorily with routine behavior, self-care, and normal conversation. The examiner also noted in the conclusions of the exam that the Veteran may suffer from depressed mood, anxiety, panic attacks, chronic sleep impairment, and disturbances in motivation and mood. The examiner noted that the Veteran does not have trouble understanding commands and does not pose an imminent threat of danger to himself or others. At the September 2008 VA examination the Veteran noted that his current symptoms of PTSD included thinking about Vietnam a lot, significant conflict with his religious beliefs, low energy, low motivation, anger, avoidance of crowds, difficulty in relationships, sleep disturbance with nightmares, and irritability. The Veteran also reported his military stressor information as being due to his time in the infantry as well as the time he spent working in the mortuary services. On appeal, the Veteran submitted records and a letter from his clinical psychologist at the Escanaba Vet Center, where the Veteran attended group therapy, as well as individual therapy. Dr. TLD stated that the Veteran’s PTSD symptoms were found to be moderately disabling. Furthermore, the Veteran’s symptoms were found to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of mood and motivation, difficulty in establishing effective work and social relationships, and difficulty adapting to stressful situations. The Veteran was then afforded another VA examination in January 2016. The examiner noted that the Veteran stays in the house all day, stays by himself a lot, and doesn’t do much outside his relationship with his girlfriend. The Veteran also denied having any close friends and notes that he is estranged from his two adult children. The examiner diagnosed the Veteran with chronic, stable, moderately severe PTSD under the DSM 5 rating criteria. The January 2016 examination also noted that the Veteran experienced difficulty adapting to stressful circumstances, difficulty adapting to work, suspiciousness, depressed mood, disturbances in motivation and mood, difficulty adapting to a worklike setting, mild memory loss, anxiety, difficulty in maintaining effective work and social relationships, chronic sleep impairment, and occupational and social impairment with reduced reliability and productivity. On the July 2016 DBQ performed by Dr. DF, the Veteran was noted as having occupational and social impairment with deficiencies in most areas for the first time. Dr. DF also noted for the first time the Veteran showing impaired judgement, difficulty understanding complex commands, impaired abstract thinking, suicidal ideation, and impaired impulse control. Dr. DF also issued a statement that the Veteran was unable to be meaningfully employed due to these readjustment problems that were a result of his service. In May 2017, the Veteran also submitted a letter from the Dr. TLD at the Escanaba Vet Center, stating that over the past six months, the Veteran’s PTSD symptoms had significantly worsened after a series of serious triggers. The Veteran also received another VA examination in May 2017. The examiner noted that the Veteran reported excessive irritability, with strong outbursts of anger. The Veteran also stated that he has thrown and broken things during these outbursts. The examiner also noted that the Veteran had occasional thoughts about suicide, as well as feelings of worthlessness and hopelessness. In the exam the Veteran also reported episodes of sudden onset of intense fear accompanied by a sense of a racing heart, sweating, shortness of breath, feelings of choking, and fear of losing control. After a full review of the Veteran’s medical records and lay testimony, the Board determines that the Veteran’s claimed entitlement to an initial rating in excess of 50 percent for the period prior to July 2, 2016, and in excess of 70 percent thereafter is denied.  For the period prior to July 2, 2016, the evidence establishes that the PTSD does not more nearly approximate occupational and social impairment with deficiencies in most areas, which would warrant a 70 percent rating under Diagnostic Code 9411. The Veteran is not reported as showing occupational and social impairment with deficiencies in most areas. The Veteran is also not reported as showing suicidal ideation, obsessional rituals which interfere with routine activity, intermittently illogical speech, near-continuous panic attacks affecting the ability to function independently, impaired impulse control, or neglect of personal appearance and hygiene. The Board finds that the weight of the evidence shows that for this period of appeal, the Veteran’s PTSD manifested by moderate symptoms, including anxiety, sleep impairment, suspiciousness, mild memory loss and irritability. Moreover, the evidence of record also shows that the Veteran’s treating doctor at the Vet Center characterized the condition as moderate and the 2008 and January 2016 examiners concluded the symptoms that caused no greater than occupational and social impairment with reduced reliability and productivity (warranting a 50 percent rating). The evidence establishes that the PTSD symptoms did not more nearly approximate occupational and social impairment with deficiencies in most areas to warrant a 70 percent rating under Diagnostic Code 9411. The Veteran was not found to 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; or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Although the Veteran has exhibited several symptoms of PTSD, those symptoms are not of such frequency and severity to result in occupational and social impairment with deficiencies in most areas. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). He was consistently noted by VA medical professionals to be capable of daily activities and personal hygiene, and handling his financial affairs. The Veteran maintained relationships with his girlfriend. He also has been able to continue working although he noted procrastination in his self-employment business. During the January 2016 examination he reported having some interests such as golf. Accordingly, the Board does not find that the Veteran’s symptoms were of such frequency, severity, and duration that they resulted in occupational and social impairment with deficiencies in most areas to warrant a higher 70 percent evaluation during this period of appeal. For the period beginning July 2, 2016, the evidence does not more nearly approximate total occupational and social impairment to warrant an increased 100 percent rating. Taking all of the evidence from July 2016 on, the Veteran certainly exhibited symptoms that warranted a 70 percent rating. The Veteran’s increased rating was based on his unprovoked irritability, his occupational and social impairment with deficiencies in most areas, suspiciousness, depressed mood, anxiety, suicidal ideation, disturbances of motivation and mood, impaired impulse control, chronic sleep impairment, difficulty understanding complex commands, as well as his impaired abstract thinking. These symptoms are explicitly listed under the 70 percent rating criteria or are similar in frequency and severity. Taken altogether, the Veteran’s lay statements and medical records show his symptoms have not manifested to a level where a 100 percent rating would be appropriate.  In the case at hand, after reviewing the record and examining the Veteran, the examiners all concluded that at worst, the Veteran was determined to have occupational and social impairment with deficiencies in most areas. The Veteran also had symptoms of suspiciousness, depressed mood, disturbances of motivation, mild memory loss, sleep impairment, difficulty in adapting to stressful circumstances, and anxiety. These symptoms are all either explicitly listed under the 70 percent rating or are similar in frequency and severity.  Unfortunately, while the Veteran does suffer significantly from his service-connected PTSD, the Board finds that the evidence on record does not show the Veteran’s symptoms more nearly approximate the criteria to receive a 100 percent rating. The Veteran does not show any signs of gross impairment in thought or communication, the Veteran has not reported any delusions or hallucinations, the Veteran has not exhibited any grossly inappropriate behavior, he has not created or imminently threatened any harm to himself or others, and there is no evidence in the record to show a lack of personal hygiene. Finally, there is no evidence to show the Veteran is disoriented to times or places, or that his memory loss is so significant to forget close relatives, his own name, or his occupation. The record reflects that he maintained some minimal contact with his sister, as well as his girlfriend. He was always alert and oriented, had some insight into his condition, and was noted as being well groomed in his medical records.  The evidence leads to one conclusion: while the Veteran has significant symptoms and deserves significant compensation for his service-connected PTSD and for his individual unemployability, his symptoms and the severity, duration, and frequency of them, do not give rise to a higher evaluation of his disability rating. REASONS FOR REMAND 1. Entitlement to total disability based on unemployability of the individual (TDIU) prior to July 2, 2016 is remanded. The Board must also determine whether the Veteran is due a grant for TDIU prior to the effective date of July 2, 2016. TDIU is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation”).VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the obtaining and maintaining of substantially gainful employment. Under 38 C.F.R. § 4.16 (a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). During the relevant time period prior to July 2016, the Veteran was rated 50 percent disabled due to PTSD from January 22, 2008, 60 percent disabled due to diabetic nephropathy with hypertension from August 15, 2014, 20 percent for diabetes mellitus from January 22, 2008, 10 percent for peripheral neuropathy of the right lower extremity from December 17, 2014, 10 percent for peripheral neuropathy of the left lower extremity from December 17, 2014, 10 percent for hypertension from January 22, 2008, and 0 percent for residuals of malaria. These service-connected disabilities combined to a disability rating of 60 percent, effective January 22, 2008 and 90 percent from August 15, 2014. Thus for the period from January 22, 2008 until August 14, 2014 the Veteran did not meet the schedular criteria. However, the relevant regulation provides that, if the required percentage requirements for TDIU are not met on a scheduler basis, but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disorders, then the Director, Compensation and Pension Service (C&P), should consider whether TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board may not award a TDIU on an extraschedular basis in the first instance. For extraschedular TDIU claims, a claimant’s case is eligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Director, Compensation Service, where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The pertinent inquiry here is whether there is “plausible” evidence of that the Veteran was unable to secure substantially gainful employment warranting consideration under 38 C.F.R. § 4.16(b) by referral to the Director, Compensation Service. After returning from service in Vietnam and being discharged from the Army, the Veteran worked for a funeral home from 1970 to 1972 before he quit. He bought his own funeral home and has been self-employed since 1972. In 2008, the Veteran specifically stated that he quit his job and bought his own funeral home because he could not get along with his boss. He also stated that his private funeral home business is marginally successful, but he stays with it because he does not have to deal with a lot of people. In 2014, the Veteran reported that he used to work about 35 days a year. In 2016, the Veteran reported that he worked 12 to 14 days a year. The January 2016 VA examiner opined that the Veteran’s PTSD results in reduced reliability and productivity at work. Finally, the Veteran’s tax returns from 2014 through 2018 show a negative income each year. The above evidence constitutes plausible evidence that the Veteran is unable to hold substantially gainful employed due to his service-connected disabilities (specifically PTSD). Therefore, the Board finds that referral to the Director, Compensation Service for consideration of entitlement to an extraschedular TDIU rating is warranted for the period prior to July 2, 2016. The matters are REMANDED for the following action: Refer the Veteran’s claim of entitlement for TDIU prior to July 2, 2016 to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). A copy of the Director’s decision on this claim must be included in this claims file. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, 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.