Citation Nr: 21023374 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-61 207 DATE: April 20, 2021 ORDER Entitlement to an initial 70 percent rating, but not higher, for service-connected posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. The Veteran’s service connected disabilities do not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, diagnostic code (DC) 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1992 to March 2001, and May 2001 to October 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, granted service connection for PTSD, evaluating it as 30 percent disabling. In October 2014, the Veteran filed his notice of disagreement with, among other things, the 30 percent rating assigned for PTSD, was issued a statement of the case in October 2016, and in December 2016, perfected his appeal to the Board, raising the issue of entitlement to TDIU. In a December 2018 decision, the Board, among other things, denied the Veteran’s claim for a higher initial rating for PTSD, and denied entitlement to a TDIU. The Veteran appealed the Board decision to the Court of Appeals for Veteran’s Claims (Court) which in September 2019 granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating and remanding part of the Board’s December 2018 decision finding that the Board failed to address all arguments presented by the Veteran and his representative regarding the adequacy of the VA examinations. The parties to the JMPR also agreed that TDIU was inextricably intertwined with the remanded issues. In a March 2020 rating decision, the RO granted a 50 percent rating for PTSD effective October 28, 2019, creating a staged rating, and denied entitlement to a TDIU. In May 2020, the Board, among one other thing, remanded the Veteran’s claim for a higher initial rating for PTSD and entitlement to a TDIU for a new examination to determine the severity of his PTSD during flare-ups. For the reasons indicated in the discussion below, the opinions that the Board instructed the agency of original jurisdiction (AOJ) to obtain were in fact obtained and are adequate to decide the claims on appeal. Thus, the AOJ complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2020, the RO denied the Veteran’s claims for a higher initial rating for PTSD, and entitlement to a TDIU, notifying the Veteran in a supplemental statement of the case. 1. PTSD In a March 2020 letter, the Veteran stated that he believed a 70 percent disability rating was warranted for his service connected PTSD considering that he was out of work from 2012 to 2017, and had issues with his temper and with establishing relationships, but in a March 2021 brief, the Veteran’s representative stated he Veteran’s PTSD symptomatology more closely approximated the 100 percent evaluation. 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The criteria for rating PTSD are found at 38 C.F.R. § 4.130, DC 9411. PTSD is rated under the General Rating Formula for Mental Disorders. Under this formula, a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA’s General Rating Formula for Mental Disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.” Id. at 117. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.130. When evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely based on social impairment. See 38 C.F.R. § 4.126(b). December 2009 service treatment records reflect the Veteran reported experiencing increased irritability and anger for the past 5 years, and forgetfulness and difficulty concentrating for more than 1 year. He denied suicidal or homicidal ideation. In December 2009 service treatment records, the Veteran’s wife reported that the Veteran snaps (yells) over little things, and the family is worried his anger may cross the line to the point where he might become physical. April 2011 service treatment records indicate the Veteran suffers from sleep difficulties, and the psychiatrist noted that the Veteran has intrusive memories, avoidance, and anger. He also reported that the Veteran is “always on alert” and very “short fused”. March 2012 service treatment records reflect that the Veteran reported suffering from anxiety attacks at least once a day. In a March 2013 letter, the Veteran’s sister described her brother’s anger and temper issues. A May 2013 VA examination report indicated that the Veteran’s PTSD symptomatology caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examining psychologist noted symptoms of depressed mood, anxiety, and chronic sleep impairment. In his October 2014 notice of disagreement, the Veteran reported that he has a very difficult time making and establishing relationships, stating that he has no friends, and has been separated from his spouse since April. The Veteran stated his mood is intolerable, reported crying for no reason, an inability to focus on anything, and weekly panic attacks. He also stated that he is unable to find a job because of his issues, medications, and headaches. On his December 2016 Form 9, the Veteran reported spending his days in isolation, dreading having to leave the house. He indicated that he cannot communicate clearly or effectively, and sometimes feels people are trying to sneak up on him. He also reported being unable to deal with mundane stressors of life, having no friends or girlfriend, and engaging in inappropriate sexual behaviour without any emotional regard. He stated it was hard for him to understand difficult instructions and learn new things, and stated he obsessed about routines. In a January 2017 vocational counselor’s report, the Veteran described himself as very neat and organized, and indicated he works well under pressure. However, he reported that some of his PTSD symptoms could lead to issues in this regard. An October 2019 disability benefits questionnaire (DBQ) indicated that the Veteran’s PTSD symptomatology resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported 2 divorces and stated he has not had any serious or long lasting relationship since his second divorce, indicating that the lives alone. He also stated that he does not have any close friends, and does not engage in social gatherings. He did report getting together with his daughters. The DBQ indicated that the Veteran had a hard time controlling his temper, with the Veteran reporting outbursts and frequent verbal and physical altercations. The Veteran’s PTSD symptomatology included depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgement, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances including work or a work like setting. The examining psychologist noted that the Veteran was alert and oriented to person, place, situation, and time, and that the Veteran demonstrated fair attention and concentration. A March 2020 VA examination report indicated that the Veteran had a “good relationship” with his mother and father, and that he has been employed full time as a safety instructor at Siemens Gamesa since 2017. He denied any issues with chronic absences, tardiness, productivity, or significant conflicts with coworkers. The Veteran reported symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining work and social relationships. The psychologist noted that the Veteran’s ability to retain instructions, sustain concentration to perform simple tasks, and respond appropriately to coworkers, supervisors, or the general public is not impaired. However, his ability to respond appropriately to changes in work setting is considered mildly impaired, and his ability to sustain concentration to task persistence and pace is considered mild to moderately impaired. The Veteran reported feeling exhausted, but stated that he works to pay bills and take care of his responsibilities. He reported issues with waking up, getting motivated, and staying on task at work, stating that he feels physically fatigued, and reported resting in the bathroom for 10 minutes while at work. A September 2020 DBQ reflects that the Veteran’s PTSD symptomatology results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. His PTSD symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The psychologist noted that the Veteran’s memory was grossly intact, his speech was of normal rate and tone, thoughts were organized and coherent, and the Veteran denied hallucinations and delusions. The examining psychologist stated that the Veteran’s PTSD would have minimal to moderate impact upon his ability to secure and maintain employment as he may at times experience anxiety, especially in crowded situations or novel environments. He also noted that the Veteran may have difficulty with sleeping, amotivation, and anhedonia which would cause him to be tired during the day, but indicated that the Veteran would be able to engage in sedentary employment. The psychologist additionally addressed the concerns noted by the parties in the JMPR regarding periods of flare-ups of the Veteran’s PTSD, stating that during periods of increased symptoms of PTSD, he may experience acute episodes of anxiety which last for approximately an hour. He reported that these episodes occur intermittently several times a per week. In an undated letter, the Veteran’s son stated that the Veteran’s PTSD has made the Veteran unstable, aggressive, abusive, and emotionally distant, incapable of social interaction. In another undated letter, the Veteran’s daughter reported that her relationship with her father is not normal as she feels she has to be very careful dealing with him for fear of his temper. The Veteran’s ex-wife submitted an undated letter where she stated that she and the Veteran were back together because of their kids and due to the fact that they both need help in their lives. She discussed the Veteran’s violent temper and its impact on the family, including the fact that due to his temper, they do not have any social interaction with the Veteran’s extended family in Florida. The evidence of record indicates that during the entire period on appeal, the Veteran’s PTSD symptoms have included anxiety, chronic sleep impairment, suspiciousness, and hypervigilance. While the Veteran denied current suicidal or homicidal ideation, hallucinations, and delusions, he reported impaired impulse control, panic attacks more than once a week, a volatile temper, an inability to concentrate, and a lack of motivation. The Veteran has also indicated that he does not have any close friends, does not interact socially, and preferred to spend his days in isolation. He also reported obsessing about routines. The evidence is thus at least evenly balanced as to whether the Veteran’s PTSD symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas contemplated by a 70 percent rating under DC 9411. Additionally, there is no indication in the evidence of record that the Veteran’s PTSD symptomatology suddenly worsened during any time during the period on appeal. Accordingly, entitlement to an initial rating of 70 percent for PTSD is warranted for the entire period on appeal. However, there is no evidence which suggests that the Veteran’s PTSD symptomatology and overall impairment more closely approximate total social impairment. While the evidence of record indicates that the Veteran’s PTSD symptomatology includes hypervigilance, a violent temper, and causes the Veteran to be emotionally distant, he reported a good relationship with his parents, and stated that he continues to have a relationship with his daughters. He also reported that he continues to work. Moreover, while the Veteran has reported forgetfulness and difficulty concentrating, the medical and lay evidence do not show gross impairment in thought process or communication, disorientation to time and place, persistent danger of hurting himself or others, memory loss of own name or occupation, or any other symptomatology resulting in total occupational and social impairment. While significant, the Veteran’s overall symptoms and impairment does not more nearly approximate total occupational or social impairment as contemplated by a 100 percent rating. As the preponderance of the evidence is against a 100 percent rating, the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s symptoms of PTSD more closely approximate occupational and social impairment with deficiencies in most areas. Accordingly, entitlement to a rating of 70 percent, but no higher, for PTSD is warranted for the entire period on appeal. 2. TDIU A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. In light of the decision herein, the Veteran is service connected for PTSD, rated as 70 percent disabling; headaches, rated as 50 percent disabling; right and left knee strain, each rated 10 percent disabling; metatarsalgia, rated 10 percent disabling; lumbar degenerative disc disease, rated 10 percent disabling; vitiligo, rated 10 percent disabling; right shoulder internal derangement, right volar wrist mass, right ankle sprain, left ankle sprain, right shin plint, left shin splint, gastroesophageal reflux disease, and pruritic eczema, each rated noncompensable. Therefore, as the Veteran has 2 or more disabilities with a combined rating of at least 70 percent with one rated 40 percent or more disabling, he is eligible for consideration for a TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). Nonetheless, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disability. The Veteran’s VA 21-8940 indicates that his service connected PTSD, headaches, back and leg pain prevented him from securing or following any substantially gainful occupation. The Veteran reported that he last worked full time in March 2020, and became too disabled to work in February 2017, most recently working for Siemens Gamesa from February 2020 to March 2020. The Veteran indicated that he did not leave his last job due to his disability, and he reported completing 4 years of college. In an undated statement, the Veteran noted that his September 2020 psychologist reported that he can do “sedentary work”, but stated that because of his work experience, the only type of work he can find is related to heavy industry, and stated that his current work in wind turbine generators requires him to climb 300 ft towers and constantly travel throughout the United States. He stated that while he works, he has no quality of life after as it takes all his “energy, mental health, and physical disabilities.” For the following reasons, based on the above, the Board finds that the Veteran’s service connected disabilities do not preclude him from securing and following substantially gainful employment for which the Veteran would otherwise be qualified. While the Veteran indicated in his VA 21-8940 that he became too disabled to work in February 2017, he also reported working from February 2020 to March 2020, stating that he did not leave his job due to his disabilities. Additionally, the March 2020 VA examination report reflects that the Veteran has been employed full time as a safety instructor since 2017, and the Veteran has reported working in wind turbine generators as recently as September 2020. Although the Veteran stated that his work impacts his quality of life, the evidence indicates that he is nonetheless able to make the necessary adjustments and concessions to secure and follow substantially gainful employment despite his service connected disabilities. The Veteran does not contend, and the evidence of record does not otherwise suggest, that the Veteran’s employment is marginal as that term is defined in 38 C.F.R. § 4.16(a). As the Veteran is capable of maintaining substantially gainful employment, entitlement to a TDIU must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.