Citation Nr: 21024916 Decision Date: 04/27/21 Archive Date: 04/26/21 DOCKET NO. 16-46 924 DATE: April 27, 2021 ORDER An initial evaluation in excess of 30 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), from January 23, 2006 to April 23, 2013, is denied. An evaluation in excess of 50 percent for an acquired psychiatric disability, to include PTSD, from April 23, 2013 to October 17, 2019, is denied. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) prior to October 27, 2019 is denied. FINDINGS OF FACT 1. From January 23, 2006 to April 23, 2013, the Veteran’s acquired psychiatric disability was not productive of total occupational and social impairment; of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or of occupational and social impairment with reduced reliability and productivity. 2. From April 23, 2013 to October 17, 2019, the Veteran’s acquired psychiatric disability was not productive of total occupational and social impairment or of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. 3. Prior to October 27, 2019, the Veteran’s acquired psychiatric disability did not render him unemployable or unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for an acquired psychiatric disability, to include PTSD, from January 23, 2006 to April 23, 2013, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 2. The criteria for an evaluation in excess of 50 percent for an acquired psychiatric disability, to include PTSD, from April 23, 2013 to October 27, 2019, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 3. The criteria for a TDIU prior to October 27, 2019 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to September 1971. This appeal is before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In September 2019, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. The issues on appeal were initially before the Board in October 2020, at which time they were remanded with instruction to assist the Veteran in obtaining private treatment records and the relevant information necessary to adjudicate a claim for TDIU. In November 2020, the specified private records were obtained, and the Veteran returned a formal application for a TDIU. A January 2021 rating decision granted him a 100 percent rating for PTSD effective October 17, 2019; this constitutes a full grant of the appeal for the period beginning that date. This period will therefore not be addressed in this decision. The Board is therefore satisfied that the instructions in its October 2020 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial evaluation in excess of 30 percent for an acquired psychiatric disability, to include PTSD, from January 23, 2006 to April 23, 2013 2. Entitlement to an evaluation in excess of 50 percent for an acquired psychiatric disability, to include PTSD, from April 23, 2013 to October 17, 2019 The Veteran claims an increase to his PTSD ratings. Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Diagnostic Code 9411 of 38 C.F.R. § 4.130 specifically addresses PTSD; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, the Veteran’s initial 30 percent rating is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 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, and 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 or effects 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. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In an April 2006 letter, the Veteran’s private primary care physician stated that since February 1987 he had exhibited PTSD and situational adjustment reaction of adulthood with periods of stress tied to transitional periods with job changes manifest with anxiety attacks, difficulty sleeping, chest pain, abdominal pain, and musculoskeletal pain. In a May 2006 statement, the Veteran reported that since returning from Vietnam he had held at least 26 jobs and been unemployed a good portion of the time. He stated that his employment had been affected by PTSD, which caused him to become increasingly alienated and rejected by society. He stated that his PTSD caused inappropriate reactions, panic attacks, and sleep disturbances, including cold sweats. In a June 2007 letter, the Veteran’s private psychologist found that he had symptoms of PTSD, including nightmares, startle response, anger, and anxiety. The psychologist stated that he has not been able to work for any longterm period and has had over thirty jobs, none lasting more than one year. VA treatment records reflect that in January 2008 the Veteran reported chronic insomnia, avoidant behaviors, anxiety from crowds, and a history of panic attacks and flashbacks. He stated that he wakes up short of breath, shaking, and sweaty but unable to recall a nightmare. He was diagnosed with depressive disorder, rule out PTSD. In February 2008 he reported that his marriage was good. He reported that he had trouble keeping jobs because he reacts inappropriately and started fights. He denied suicidal or homicidal ideation. His psychologist noted he was very high functioning with panic attacks 2 to 3 years prior. He was diagnosed with PTSD. In March 2008 he reported that he had been more belligerent. His social worker noted that he appeared to be subclinical for PTSD. His psychiatrist found that he did not meet the criteria for PTSD and diagnosed anxiety disorder. In December 2008 he reported flashbacks, insomnia, hypervigilance, and easy agitation. He was diagnosed with PTSD versus generalized anxiety disorder. In January 2009 he reported anxiety and a long history of symptoms consistent with PTSD, specifically flashbacks, intrusive memories, avoidance, irritability, hypervigilance, hyperarousal, and insomnia. He reported that he held more than 50 jobs in his life. He was given a provisional diagnosis of PTSD. After two group therapy sessions his social worker diagnosed chronic and severe PTSD. In October 2009 he reported he was unable to handle the stress of a new sales job and got into a panic mode. He reported a history of reexperiencing and avoidance symptoms, as well as some current difficulty sleeping. He was given a provisional PTSD diagnosis. He was prescribed medication, and in November 2009 he reported improved sleep. He reported less flashbacks and sweats at night. He reported that he had left a job selling cookware because of anger at a coworker who claimed to be a Vietnam veteran but was not one. He reported sporadic sleep, decreased appetite, decreased concentration, decreased energy, feelings of hopelessness, anhedonia, crying spells, depressed mood, emotional numbing, passive thoughts of death, nightmares, night sweats, flashbacks, intrusive memories, hypervigilance, startle response, anger, anxiety, isolation, avoidance, and survivor’s guilt. In a December 2011 letter, a car dealership employee stated that the Veteran was sometimes hired as an as-needed driver for local dealerships. The employee stated that he recently overreacted to a situation and avoided phone calls. He later explained to the employee that he had PTSD and recent event had triggered this, causing him to overreact. The employee stated that realizing this potential influenced his tendency to use the Veteran as a driver. In a January 2012 letter, the Veteran’s private psychiatrist stated that he began treatment in February 2007 for symptoms of PTSD and depression. He presented with longstanding intrusive thoughts, nightmares, arousal, insomnia, difficulty concentrating, and startle response. He had demonstrated persistent avoidance and feelings of isolation and helplessness. The psychiatrist stated that his symptoms did not appear to respond to any medication and were essentially unchanged since 2007. The psychiatrist opined that his symptoms made it impossible to hold any sort of gainful employment for an extended period of time. The Veteran underwent a VA examination in March 2012. He reported a great relationship with his wife. He reported pleasurable activities such has playing with his new puppies, birdwatching, reading old novels, and photography. He reported having few friends. He stated that he spoke on the phone rarely and only texted with his niece. He reported that he currently worked part-time, approximately twice a week, driving new and used cars from one dealership to another. His wife reported that he started projects without finishing them, needed to be reminded often of appointments and responsibilities, experienced sudden mood changes and rages, was easily distracted, and panicked when items were not in their place. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, and fatigue. He was given two psychological tests. One indicated truthful reporting of symptoms; the other indicated a propensity to exaggerate. He was diagnosed with PTSD and major depressive disorder, productive of occupational and social impairment due to symptoms that are controlled by medication or are mild or transient, decreasing work efficiency and ability to perform occupational tasks only during periods of significant stress. VA treatment records reflect that in April 2013 the Veteran reported nightmares, flashbacks, and hypervigilance. On April 23, 2013, VA received a claim in which the Veteran indicated that his PTSD symptoms had worsened. The Veteran underwent another VA examination in June 2013. He reported that he lives with his wife of 30 years. He stated that he spends his time doing yardwork, reading, and housework. He reported that he hopes to take up photography. He reported that he was fired from his last job driving cars for dealerships after he hit a raccoon and did not pay for it. He reported that he had a college degree and a business background. He reported that he had been fired from a pharmaceutical sales job which he held for two years due to insubordination. The examiner noted symptoms of anxiety, suspiciousness, memory impairment, and difficulty in establishing and maintaining work and social relationships. The examiner noted that he was vague and unable to give concrete details about his issues. He was diagnosed with PTSD and anxiety disorder productive of occupational and social impairment due to symptoms that are controlled by medication or are mild or transient, decreasing work efficiency and ability to perform occupational tasks only during periods of significant stress. In a September 2013 letter, the Veteran’s private psychiatrist reiterated the opinion that he was clearly totally and permanently disabled due to his current and past PTSD symptoms, functions, and poor response to treatment. The Veteran underwent another VA examination in October 2014. He reported that his temper was an issue in his marriage. He reported that socially he works in his yard but cannot start big projects because he cannot get them finished. He reported that he often lost jobs because he would lose his temper or act inappropriately. He reported night sweats and unexplained fear. The examiner noted symptoms of anxiety, inability to establish and maintain effective relationships, and difficulty adapting to stress. He did not make eye contact with the examiner and reported rote symptoms of PTSD from a paper. He was diagnosed with generalized anxiety disorder productive of occupational and social impairment due to symptoms that are controlled by medication or are mild or transient, decreasing work efficiency and ability to perform occupational tasks only during periods of significant stress. VA treatment records reflect that in January 2015 the Veteran reported flashbacks and nightmares. He reported that he is always on guard and that sometimes he gets nervous when he leaves his house. In his September 2016 substantive appeal, the Veteran’s former representative stated that he believed that a higher rating was warranted due to occupational and social impairment in most areas, such as work, family relations, judgment, thinking, or mood. The representative stated that the Veteran experiences suicidal ideation and a lack of personal hygiene. VA treatment records reflect that in December 2018 the Veteran reported that he enjoys working on and with classic cars. In May 2019 he reported nightmares, irritability, triggers, memories, and emotions connected to experiences. He reported that PTSD has affected his life, relationships, and difficulty holding down employment. In July 2019 he reported poor memory and concentration. He reported that he still had avoidance reminder, nightmares, and intrusions. He reported that though he had not noticed this his wife stated that he became more irritable after his group therapy sessions. At his September 2019 hearing, the Veteran stated his belief that a higher rating is warranted because he has had a lot of adaptation problems since separation from service. He reported that he had a lot of flashbacks and depression and that he was unable to hold a job. He reported severe nightmares. His spouse reported that it is difficult for them to maintain friendships because he gets into screaming matches with people. She reported that her father would no longer come to their home because of a fight they had in a restaurant. She reported that he is unable to hold a job because he gets angry at people. The Veteran’s rating for PTSD was increased to 100 percent based on a disability benefits questionnaire completed on October 27, 2019, by his private treating psychologist. For the period from January 23, 2006 to April 23, 2013, the Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran’s acquired psychiatric disability. Higher ratings are available for total occupational and social impairment; for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or for occupational and social impairment with reduced reliability and productivity. The evidence weighs against such manifestations. The Veteran has consistently reported symptoms of irritability, inability to interact with others, and sleep difficulties. He reported histories of panic attacks and flashbacks, though in February 2008 his treating psychologist noted that these symptoms had been absent for 2-3 years. These symptoms are those contemplated by the criteria for 30 percent rating. In February 2008 his VA treating psychologist characterized him as “very high functioning.” Though his private psychiatrist stated in January 2012 that he was unemployable, the symptoms described were no more severe than those noted at his treatment records or at his VA examinations: intrusive thoughts, nightmares, arousal, insomnia, difficulty concentrating, startle response, persistent avoidance, and feelings of isolation and helplessness. Moreover, despite these symptoms, he reported pleasurable activities such has playing with his new puppies, birdwatching, reading old novels, and photography. He had difficulty sticking with a job, yet he did not have difficulty obtaining one. He maintained a strong relationship with his spouse. For these reasons, the Board finds that an evaluation in excess of 30 percent is not warranted from January 23, 2006 to April 23, 2013. For the period from April 23, 2013 to October 27, 2019, the Board finds that an evaluation in excess of 50 percent is not warranted for the Veteran’s acquired psychiatric disability. Higher ratings are available for total occupational and social impairment or for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. The evidence weighs against such manifestations. As with the prior period, his reports of symptoms focus on his irritability and his temper problems, particularly at his September 2019 hearing. The Veteran and his spouse describe how his irritability makes it difficult to work with others. Such difficulty forming and maintaining work relationships is explicitly contemplated by the criteria for a 50 percent rating. Similarly, during this period he reported symptoms as anxiety, suspiciousness, memory impairment, poor concentration, nightmares, triggers, memories, and emotions connected to experiences. These symptoms are not as severe as those contemplated by a 70 percent rating (e.g. illogical and irrelevant speech, near continuous panic or depression, impaired impulse control with periods of violence, or spatial disorientation). While his former representative reported the existence of suicidal ideation and lack of hygiene in a September 2016 substantive appeal, this report lacked context or explanation. The evidence does not indicate when suicidal ideation occurred. It does not indicate whether it was active ideation with a plan or whether it was merely a continuation of the passive thoughts of death described in November 2009 treatment records. As such, his routine and explicit denials of suicidal and homicidal ideation throughout his treatment records are more probative than the single statement by his former representative without context or explanation. Similarly, the routine notations of appropriate hygiene by his VA social workers is more probative than the statement of his former representative. Moreover, despite his symptoms, he reported engaging in such activities as reading, yardwork, and housework. He maintained a strong relationship with his spouse. For these reasons, the Board finds that an evaluation in excess of 50 percent is not warranted from April 23, 2013 to October 27, 2019. 3. Entitlement to a TDIU prior to October 27, 2019 The Veteran seeks a TDIU. He contends that his service-connected disabilities, when considered in combination, render him unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service (“Director”) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The fact that a veteran is in receipt of a combined schedular rating of 100 percent does not preclude the availability of a TDIU. Although no additional disability compensation may be paid when a total schedular rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC, and thus must be considered by the Board. Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). In determining whether a TDIU 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, the benefit of the doubt is afforded the claimant. The Veteran is not service connected for any disabilities aside from PTSD, with assigned ratings as discussed above. As such, with a rating of 50 percent or less, he is ineligible for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to October 27, 2019. For this period, the Board may only determine if remand is necessary to refer his claim for consideration for an extraschedular TDIU under 38 C.F.R. § 4.16(b). Moreover, from October 27, 2019, the Veteran is already in receipt of a 100 percent rating for his single service-connected disability. A TDIU is thus unavailable for that period. In his November 2020 application for a TDIU, the Veteran reported that his PTSD had rendered him too disabled to work since 2000. He stated that a state employment counselor informed him that his employment history would make him impossible to place. He reported that he had a college degree. The Board finds that remand is not necessary to refer the Veteran’s claim for consideration for an extraschedular TDIU under 38 C.F.R. § 4.16(b). His symptoms, described above in denying higher ratings, were not significant enough to refer the matter to the Director of the Compensation Service for extra-schedular consideration. As discussed above, the evidence indicates that his disability affected his ability to work through a difficulty in establishing and maintaining effective work relationships. His private psychologist opined that his symptoms rendered him unemployable, but this opinion is conclusory and without any rationale. While the evidence establishes that his difficulty in working with other people contributed to his difficulty holding a job, as discussed above it was not productive of total occupational impairment during this period. The Veteran has a college degree, qualifying him for a broad range of employment options, despite what he may have been told by a state employment counselor. He described activities such as photography, yardwork, and housework, indicating that he is capable of various forms of labor. The evidence does not establish that during this period the Veteran was incapable of employment involving minimal interaction with others. For these reasons, the Board finds that the evidence weighs against referral for consideration for an extraschedular TDIU under 38 C.F.R. § 4.16(b). A TDIU is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.