Citation Nr: 21022915 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-03 977 DATE: April 19, 2021 ORDER Entitlement to an initial increased disability rating in excess of 70 percent for unspecified trauma and stressor related disorder is denied. A total disability rating based on individual unemployability (TDIU) from April 14, 2015, is moot. A TDIU prior to April 14, 2015, is denied.   FINDINGS OF FACT 1. The Veteran’s unspecified trauma and stressor-related disorder symptomology is best characterized as causing social and occupational impairment, with deficiencies in most areas; total occupational and social impairment has not been demonstrated. 2. From April 14, 2015, the issue of entitlement to a TDIU is moot in light of the 100 percent combined rating assigned for the service-connected disabilities and because there is no indication that any of his service disabilities alone renders him unemployable. 3. Prior to April 14, 2015, the Veteran was able to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for bipolar disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.10 4.130, Diagnostic Code 9411. 2. From April 14, 2015, the issue of entitlement to a TDIU is moot. 38 U.S.C. § 1114 (s); 38 C.F.R. § 4.16 (a). 3. Prior to April 14, 2015, the criteria for entitlement to TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to November 1994. This matter was previously remanded by the Board in December 2018 for additional development. Having reviewed the record, the Board finds there has been substantial compliance with its past remand directives. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Following additional evidentiary development, the RO issued a rating decision in August 2020, increasing the Veteran’s service-connected unspecified trauma and stressor related disorder from a 30 percent disability rating to 70 percent. However, given the potential for a higher rating, this increase is not a full grant of the benefit sought and the matter remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993) (“a claim for an original or an increased rating... remains in controversy when less than the maximum available benefit is awarded”). Entitlement to an initial increased disability rating in excess of 70 percent for unspecified trauma and stressor related disorder The Veteran’s service-connected unspecified trauma and stressor related disorder has been rated at 70 percent throughout the entire initial appeal period from April 2015, under 38 C.F.R. § 4.130, Diagnostic Code 9411. A. Applicable Law Evaluations of mental health disorders, such as the Veteran’s service-connected unspecified trauma and stressor related disorder, are assigned under the provisions of 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. General Rating Formula for Mental Disorders: 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 100 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 70 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 50 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) 30 Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 10 A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication 0 When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. B. Discussion The evidence of record reflects he has been diagnosed with PTSD. He was afforded a VA examination in September 2015 where his symptoms included anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. There was no evidence of hallucinations, homicidal or suicidal thoughts, delusions, or hallucinations. The Veteran’s impulse control was good, and he was oriented to person, place, and time. Following the Board remand, the Veteran was afforded a VA examination in September 2019 where the VA examiner determined the Veteran’s occupational and social impairment was best summarized as with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. His symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances in motivation and 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. The Veteran did not report or exhibit any symptoms of thought disorder, denied any suicidal ideation, intent, or plan, and did not present as a risk for self-harm. Medical records from his VA and private treatment providers are consistent with these VA examination findings in all material respects. For example, his private provider in December 2016 noted complaints of sleep and anxiety, but he still went to church. The Board finds that the preponderance of the evidence of record is against a rating in excess of 70 percent for the unspecified trauma and stressor related disorder. A 100 percent rating requires both a total social and total occupational impairment. Here, the Veteran stated he was employed until 2016 when he retired. The evidence also refers to an ongoing social relationship with his wife and their children, plus church attendance. Thus, the evidence does not support a finding that the Veteran’s unspecified trauma and stressor related disorder, has resulted in total social and total occupational impairment. Accordingly, the preponderance of the evidence is against a rating in excess of 70 percent for the service-connected unspecified trauma and stressor related disorder, and the claim is denied. TDIU According to the Veteran’s Application for Increased Compensation Based on Unemployability, submitted to the VA in January 2017, the Veteran stated he was last employed in February 2016 at the Goodyear Tire and Rubber Company, in Fayetteville, North Carolina. A. Applicable Law A TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16 (a). In calculating whether a Veteran meets that required schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16 (a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (citing 20 C.F.R. § 404.1567) B. Discussion From April 14, 2015 Here, the Board finds that any question of a TDIU rating has been rendered moot for the period from April 14, 2015 (when the 100 percent combined schedular disability rating began). A TDIU from April 14, 2015, would result in duplicate counting of disabilities. The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that TDIU is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). With respect to the remaining appeal period from April 14, 2015, this case is distinguishable from both Bradley and Buie exceptions to the rule that a 100 percent combined schedular disability rating moots a TDIU. Under the unique facts of Bradley, SMC was available where a veteran had been granted TDIU based on a “less than total” 70 percent rating for only one disability and had subsequently obtained service connection for multiple orthopedic disabilities that combined to 60 percent. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley at 293. This case is distinguishable from Bradley because, in this case, the Veteran is not in receipt of a less than 100 percent schedular disability rating for any one service-connected disability upon which a TDIU is granted. Rather, the 100 percent schedular disability rating assigned from April 14, 2015 is based on the combined ratings of multiple service-connected disabilities. Concerning both Bradley and Buie, in this case, the Veteran is currently service connected for multiple disabilities and has previously contended that the combination of these disabilities renders him unemployable. To award a TDIU rating for the period since April 14, 2015 (when the 100 percent combined schedular disability rating began) would result in duplicate counting of disabilities. 38 C.F.R. § 4.14. As neither Bradley nor Buie is applicable, the question of entitlement to a TDIU rating has been rendered moot by the 100 percent combined schedular disability rating for all service-connected disabilities that has been in effect from April 14, 2015. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). There is no indication that any of his service-connected disabilities alone renders him unemployable. In his TDIU application, he identified his service-connected psychiatric disability as causing his unemployability. As explained herein above, his service-connected psychiatric disability causes a 70 percent level of disability, which contemplates such symptoms as difficulty in adapting to stressful circumstances (including work or a worklike setting) and inability to establish and maintain effective relationships, with deficiencies in most areas, including work. However, as summarized by the most recent VA examination in September 2019, the Veteran's symptoms impaired his focus, concentration, attention, and recall. The examiner found him to also likely to have difficulty dealing with work related stress and demanding work tasks. His mood symptoms including depressed mood, irritability, and anger were likely to affect his ability to interact with others including customers, co-workers and supervisors that can cause him to experience significant anxiety. Finally, the examiner found that the Veteran's symptoms may also decrease the likelihood of him maintaining regular attendance due his avoidance. The VA examiner’s assessment shows that the Veteran’s psychiatric symptoms would significantly impact his ability to maintain a substantially gainful occupation, but would not preclude all types of such work. He had impairments with concentration, focus, attention, and recall, plus difficulties in dealing with others, handling workplace stress, and maintaining regular attendance. However, this does not indicate that he would preclude all types of substantially gainful occupation, such as one that had minimal interactions with others, allowed a flexible work schedule, and allowed for reasonable accommodations in terms of structuring the work environment to facilitate his limitations. See Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). Thus, the evidence does not support a TDIU based solely on the service-connected psychiatric disability. Hence, entitlement to TDIU is moot for the period beginning on April 14, 2015. See 38 U.S.C. § 1114 (s). Prior to April 14, 2015 After a review of the evidence of record, the Board finds that entitlement to TDIU is not warranted prior to April 14, 2015. Initially, prior to April 14, 2015, the Veteran received a total temporary rating for a service-connected right knee disability from October 16, 2007 to November 30, 2008, and two additional periods of a total temporary rating for his left knee disability from October 13, 2009, to November 30, 2008, and from November 13, 2014, to April 30, 2015. As such, TDIU will not be considered during those periods. In his February 2020 Application for Increased Compensation Based on Unemployment, the Veteran asserted he was last employed in February 2016 and was consistently employed full-time prior to that date. Therefore, TDIU is not warranted prior to that date. (Continued on the next page)   Therefore, overall, the Board concludes that the most probative evidence of record weighs against a finding that the Veteran’s service-connected disabilities prevented him from securing or following any substantially gainful employment prior to April 14, 2015. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the appeal is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.