Citation Nr: 21023359 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-22 146 DATE: April 20, 2021 ORDER Entitlement to an initial increased rating from 50 percent to 70 percent for posttraumatic stress disorder (PTSD) from June 21, 2013, to June 7, 2019, is granted. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from June 8, 2019, to October 26, 2020, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to June 21, 2013, is denied. FINDINGS OF FACT 1. Throughout the period from June 21, 2013, to June 7, 2019, the severity, frequency, and duration of the Veteran’s symptoms more closely approximated occupational and social impairment with deficiencies in most areas. 2. Throughout the period from June 8, 2019, to October 26, 2020, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. 3. The preponderance of the evidence is against a finding that the Veteran was unable to secure or follow any form of substantially gainful employment due to his service-connected disabilities prior to June 21, 2013. CONCLUSIONS OF LAW 1. During the period from June 21, 2013, to June 7, 2019, the criteria for a disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. During the period from June 8, 2019, to October 26, 2020, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. During the period prior to June 21, 2013, the criteria for an extraschedular TDIU rating were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to October 1971. These matters come to the Board of Veterans’ Appeals (Board) on appeal from February 2011 and May 2014 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in October 2016. A transcript of the hearing is associated with the Veteran’s claims folder. This case was previously before the Board in June 2018 and April 2020, on which occasions the claims were remanded. 1. Entitlement to an initial increased rating from 50 percent to 70 percent for posttraumatic stress disorder (PTSD) from June 21, 2013, to June 7, 2019. 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from June 8, 2019, to October 26, 2020. The Veteran asserts that he is entitled to a rating in excess of 50 percent for service-connected PTSD during the period of June 21, 2013, to June 7, 2019, and a rating in excess of 70 percent during the period of June 8, 2019, to October 26, 2020. The Board notes that the Veteran was granted a 100 percent rating for PTSD effective October 27, 2020, in a February 2021 rating decision. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating in excess of 50 percent for PTSD during the period of June 21, 2013, to June 7, 2019, and a rating in excess of 70 percent during the period of June 8, 2019, to October 26, 2020. The Board concludes that his symptoms more closely approximated the symptoms associated with a 70 percent rating throughout the period on appeal. In this regard, the Veteran was afforded a March 2014 PTSD examination. Symptoms at the time of the examination included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. In discussing his social history, the Veteran indicated that he has been married for 43 years and described his wife as his “best friend.” While he has a positive relationship with his wife, he indicated that he avoids other people and group activities because he becomes “irritable, snappy, angry and throw[s] things . . ..” In discussing his occupational history, he indicated that he was a commercial truck driver for 37 years prior to his retirement in 2009. The examiner opined that the Veteran’s symptoms caused occupational and social impairment with reduced reliability and productivity. (3/25/2014, C&P Exam, p. 2-5). In June 2019 the Veteran was afforded another PTSD examination. Symptoms at the time of the examination included depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty adapting to stressful circumstances, suicidal ideation, and impaired impulse control. In discussing his social history, the Veteran indicated that he was still married, and had been married for 48 years. He described his relationship with his wife as “good.” He reported no new occupational information during the examination, indicating that he last worked in 2009. The examiner opined that his symptoms caused occupational and social impairment with deficiencies in most areas. (06/20/2019, C&P Exam, p. 2-5). VA treatment records show that the Veteran’s PTSD was manifested by anger management issues that resulted in a fear that he might hurt someone. (5/5/2014, CAPRI, p. 59). In June 2013 he reported frustration with the VA call center and threatened that he “may have to come down [] and do something to get listened to.” In July 2013 he reported an “outburst” while camping with his wife. (5/5/2014, CAPRI, p. 59, 70). In May 2016 the Veteran got into an argument with his VA treatment providers which resulted in him “walk[ing] out of the room . . ..” (10/24/2018, CAPRI, p. 225). After a review of the evidence, the Board finds that the Veteran’s reported symptoms are consistent with a finding of occupational and social impairment with deficiencies in most areas throughout the period on appeal. While the March 2014 VA examiner opined that the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity, the Board finds that the examiner did not consider the functional impact of the Veteran’s reports of impaired impulse control and anger management issues. The Board thus affords the June 2019 examination greater probative value. A higher disability rating of 100 percent is not warranted during the period in question, as evidence does not demonstrate that the Veteran has total occupational and social impairment. In this regard, the Veteran has been married throughout the period on appeal and described his relationship as good. He also had visits with children and grandchildren monthly. While there is evidence of arguments with his wife and other family members, his ability to maintain a relationship with his spouse indicates that his symptoms do not rise to the level of total social impairment. Therefore, the Board finds that a higher rating of 100 percent is not warranted.  The Board notes that the Veteran expressed suicidal ideations, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating, as there is no showing that this symptom, while serious, has resulted in total social or occupational impairment. While not occurring during the period on appeal, the Board notes that the Veteran underwent a VA PTSD examination in October 2020, wherein symptoms contemplated by a 100 percent rating, including intermittent inability to perform activities of daily living and disorientation to time or place, were noted. However, mental status examinations throughout the period on appeal have consistently found the Veteran to be alert and oriented to time, place, and person with no reported hygiene issues. (10/24/2018, CAPRI, p. 146, 191); (7/22/2015, CAPRI, p. 35); (5/5/2014, CAPRI, p. 18). In short, the Board finds that the totality of the evidence demonstrates that the disability picture for the Veteran’s PTSD warrants an initial 70 percent rating from June 21, 2013, to October 26, 2020. The Board additionally finds that the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. Therefore, the criteria for a 100 percent rating from June 21, 2013, to October 26, 2020, is not met. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to June 21, 2013. The Veteran asserts that he is entitled to an TDIU on an extraschedular basis prior to June 21, 2013. The Board notes that the Veteran was granted a TDIU on a schedular basis effective June 21, 2013. A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25.     Generally, to be eligible for a TDIU, a schedular percentage threshold must be met.  If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling.  If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a); in such cases, the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000).  The question is whether the Veteran is capable of performing the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).  The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU.  Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001).    The Veteran was last employed in 2009 as a truck driver.  (1/21/2011, VA 21-8940, p. 1). Prior to June 21, 2013, service connection was in effect for the following disabilities: bilateral flat feet, degenerative arthritis of the right knee, and degenerative spurring of the left knee. His combined rating was 50 percent from January 8, 2010, to June 20, 2013. For the period on appeal, the percentage ratings for the service-connected disabilities did not meet the minimum combined rating criteria under 38 C.F.R. § 4.16(a) for eligibility for TDIU. In January 2021 the Director of Compensation Services (Director) provided an advisory opinion on the Veteran's claim for extraschedular TDIU, wherein the Director determined that evidence failed to demonstrate that “any of the service-connected disabilities or a combination of the effects of those disabilities prevent employment.” In rendering an opinion, the Director noted a July 2010 VA examination which concluded that the Veteran is limited to walking up to one-quarter mile and standing to 20 minutes due to bilateral foot and knee disabilities. However, while conceding that these disabilities cause some physical limitations, the Director ultimately concluded that the disabilities did not preclude all forms of substantially gainful activity. (01/06/2021, VA Memo, p. 1). During a September 2010 VA examination a VA examiner indicated that the Veteran was able to walk two blocks, stand for 15-20 minutes, climb one flight of stairs, lift and carry 50 pounds, sit and drive for a maximum of 30 minutes, and lift half a gallon of water over his head. In a January 2011 addendum opinion, the examiner indicated that functional limitations due to his service-connected disabilities are walking two blocks, standing for 15 minutes, and climbing one flight of stairs. The other listed impairments, to include sitting and driving for a maximum of 30 minutes, were not related to his service-connected disabilities. (1/20/2011, VA Examination, p. 9). In January 2011 the Veteran was afforded a general medical evaluation during which a VA examiner opined that the Veteran is permanently unemployable. However, the examiner did not limit their opinion to the Veteran’ service-connected disabilities. Indeed, the examiner specifically considered the effects of the Veteran’s non-service-connected diabetes and diabetic neuropathy, concluding that the Veteran’s inability to continue working as a truck driver was due to “major sensory losses,” particularly in the lower extremities. (1/19/2011, VA Examination, p. 9-10). VA and private treatment records indicate that on several occasions the Veteran attributed his inability to continue working as a truck driver to his diabetes. A July 2009 report indicates that the Veteran realized “he is not likely ever to be gainfully employed in his area of expertise due to his [diabetes] on insulin.” (01/20/2011, Medical Treatment Records, p. 15). An August 2009 report indicates that his diabetes is “now a liability” and suggests that the Veteran is no longer employable. (01/20/2011, Medical Treatment Records, p. 10). During a December 2009 non-VA internal medicine consult, the Veteran indicated that he “left his job due to ‘control of diabetes.’” (01/20/2011, Medical Treatment Records, p. 139). Similarly, during an October 2016 Board hearing he indicated that he stopped working due to his age and diabetes. (10/6/2016, Hearing Transcript, p. 23). Based on a review of the evidence, the Board finds that the Veteran was not unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. His service-connected bilateral feet and knee disabilities would not have prevented him from continuing to work as a commercial truck driver; instead, his unemployability as a commercial truck driver is related to diabetes, diabetic neuropathy, and anger management issues. The Veteran is not service connected for diabetes or diabetic neuropathy and was not service connected for PTSD during the period of time under consideration by the Board. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU were not met prior to June 21, 2013. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.