Citation Nr: 21023764 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-15 892A DATE: April 21, 2021 ORDER A disability rating of 50 percent, but no more, for PTSD from April 16, 2009 to September 27, 2019 is granted. A disability rating in excess of 50 percent for PTSD from September 28, 2019 is denied. A total disability rating due to individual unemployability (TDIU) from August 12, 2016 is granted. REMANDED TDIU to include on an extraschedular basis prior to August 12, 2016 is remanded. FINDINGS OF FACT 1. From April 16, 2009 to September 27, 2019, the Veteran manifested occupational and social impairment with reduced reliability and productivity, but the Veteran did not manifest occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 2. From September 28, 2019, the Veteran did not manifest occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 3. The Veteran’s service-connected disabilities prevented the Veteran from securing and maintaining substantially gainful employment, and the Veteran met the schedular requirements for TDIU from August 12, 2016. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no more, for PTSD from April 16, 2009 to September 27, 2019 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 50 percent for PTSD from September 28, 2019 have not been met. 8 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for TDIU from August 12, 2016 have been met. 8 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from July 1965 to August 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran did not request a personal hearing before the Board. These matters were previously before the Board, and, in July 2018, the Board remanded this matter for further development. Further development in substantial compliance with the Board’s previous remand instructions has been completed. 1. A disability rating of 50 percent, but no more, for PTSD from April 16, 2009 to September 27, 2019 is granted. 2. A disability rating in excess of 50 percent for PTSD from September 28, 2019 is denied. At issue is whether the Veteran is entitled to an increased disability rating for PTSD. The weight of the evidence indicates that the Veteran is entitled to an earlier effective date for the assignment of 50 percent for PTSD, but the Veteran is not otherwise entitled to an increased disability rating. The Veteran first filed for service connection for PTSD in April 2009, and, in December 2009, the RO granted service connection and assigned a disability rating of 30 percent effective the date the claim was received. The Veteran appealed his initial disability rating. During the pendency of the appeal, the Veteran was assigned a disability rating of 50 percent effective September 28, 2019. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings for mental disorders are evaluated pursuant to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a disability rating of 30 percent is assigned when a mental disorder causes 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). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A disability rating of 50 percent is assigned when a mental disorder causes 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-term 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. Id. A disability rating of 70 percent is assigned when a mental disorder causes 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 total disability rating is assigned when a mental disorder causes 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, General Rating Formula for Mental Disorders. 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). The Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating, 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. See Mauerhan. 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. See Vazquez-Claudio. The Veteran’s treatment records indicate that the Veteran manifested psychiatric symptoms throughout the period on appeal. The Veteran underwent a VA examination in November 2009. The Veteran reported that he was not working, because he had retired in 2004 after working as a bus operator for 30 years. The Veteran indicated that he had a good relationship with his wife and adult children. The examiner identified a number of psychiatric symptoms including sleep impairment; impaired social relations; and flashbacks. The examiner indicated that the Veteran did not have any impaired thought processes, a depressed mood; an effect on either the Veteran’s family role or schooling; delusions, or hallucinations. Additionally, the examiner did not indicate that the Veteran had impaired judgement. The examiner opined that the Veteran’s symptoms were mild to moderate. The Veteran underwent another VA examination in October 2019. The Veteran reported that he had a supportive relationship with his wife. The Veteran indicated that he had not gotten work since his last examination, but the Veteran also indicated that the reason he retired early as a bus operator was that his psychological symptoms prevented the Veteran from being around large groups of people. The examiner noted that the Veteran’s symptoms including depressed mood; anxiety; suspiciousness; panic attacks; sleep impairment; memory loss; disturbances in mood; and difficulty in establishing effective work relationships. The examiner did not indicate that the Veteran manifested difficulty in school; impaired judgment; or impaired thinking. The examiner opined that the Veteran manifested occupational and social impairment with reduced reliability and productivity. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 50 percent throughout the period on appeal. In order to meet the criteria for a disability rating of 50 percent, the Veteran needed to manifest occupational and social impairment with reduced reliability and productivity. The Veteran underwent a VA examination in October 2019 which indicated that the Veteran manifested occupational and social impairment with reduced reliability and productivity. The Veteran also underwent a VA examination in November 2009 which indicates that the Veteran’s symptoms were mild to moderate, which is consistent with reduced reliability and productivity. Additionally, the record is silent for a medical opinion indicating that the Veteran’s occupational and social impairment is not severe enough to cause reduced reliability and productivity. Therefore, a disability rating of 50 percent throughout the period on appeal is granted. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 50 percent. In order to meet the criteria for a disability rating in excess of 50 percent, the Veteran needed to manifest either occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood or total occupational and social impairment. The Veteran underwent multiple examinations throughout the period on appeal. The Veteran consistently reported good relations with his wife. Additionally, the examinations of record do not indicate that the Veteran manifested problems with schooling. thinking, or judgment. The Board notes that the record does document problems with work, but this is consistent with a disability rating of 50 percent which also compensates for occupational impairment. Additionally, the Board notes that the record contains evidence of disturbances of mood. Nevertheless, the Board is unconvinced that disturbances in mood alone is sufficient to warrant an increased disability rating, and the Board finds that the Veteran’s disability picture more closely approximates reduced reliability and productivity rather than deficiencies in most areas, Finally, the Veteran ability to maintain a good and supportive relationship with his wife throughout the period on appeal indicates that the Veteran is not totally socially impaired; and necessarily is not totally occupationally and socially impaired. Therefore, a disability rating in excess of 70 percent is denied. Here, the weight of the probative evidence of record indicates that the Veteran manifested occupational and social impairment with reduced reliability and productivity throughout the period on appeal. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating of 50 throughout the period on appeal is granted. 3. TDIU from August 12, 2016 is granted. At issue is whether the Veteran is entitled to TDIU. The weight of the evidence indicates that the Veteran is entitled to TDIU from August 12, 2016. TDIU is assigned when previously service-connected disabilities prevent the Veteran from obtaining securing and maintaining substantially gainful employment. Additionally, TDIU typically requires the Board to meet either of the following schedular requirements: a single disability that is at least 60 percent disabling; or a single disability rating that is at least 40 percent disabling and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). As of this decision, the Veteran has been assigned a disability rating of 50 percent for PTSD effective April 16, 2009. Therefore, the Veteran has been assigned a disability rating that is at least 40 percent disabling from April 16, 2009. Additionally, the Veteran has also been assigned the following disability ratings: 30 percent for bilateral hearing loss effective August 12, 2016; zero percent for prostate cancer effective October 30, 2019 to June 24, 2020 and 20 percent thereafter; 10 percent for tinnitus effective March 19, 2018; and zero percent for erectile dysfunction effective June 25, 2020. See March 2021 Rating Decision Code Sheet. Therefore, the Veteran has been assigned a combined disability rating of 70 percent as early as August 12, 2016. 38 C.F.R. § 4.25. The weight of the evidence indicates that the Veteran has been unable to secure and maintain substantially gainful employment throughout the period on appeal. The Board is convinced that the Veteran’s level of occupational impairment from the Veteran’s PTSD (which is discussed in further detail above) was severe enough to prevent the Veteran from working throughout the period on appeal from August 12, 2016. This is not inconsistent with the denial of a disability rating in excess of 50 percent for PTSD, because TDIU is assigned based solely on occupational impairment; while disability ratings for mental disorders require the Board to consider both occupational and social impairment. Here, the weight of the probative evidence of record indicates that the Veteran met the schedular criteria from August 12, 2016 and was unable to secure and maintain substantially gainful employment throughout the period on appeal. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, TDIU effective August 12, 2016 is granted. REASONS FOR REMAND TDIU to include on an extraschedular basis prior to August 12, 2016 is remanded. At issue is whether the Veteran is entitled to TDIU prior to August 12, 2016. As discussed above, the Veteran’s PTSD prevented the Veteran from securing and maintaining substantially gainful employment throughout the period on appeal including prior to August 12, 2016. Nevertheless, the Veteran did not meet the schedular criteria typically required for the assignment of TDIU prior to August 12, 2016. TDIU may be assigned on an extraschedular basis, however, even if the Veteran does not meet the schedular criteria; so long as the Veteran’s previously service-connected disabilities prevent the Veteran from securing and maintaining substantially gainful employment. Unfortunately, the Board is prohibited from making such a finding in the first instance, and this matter must be remanded in order to refer it to Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the issue of TDIU prior to August 12, 2016 to Director, Compensation Service for extraschedular consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.