Citation Nr: 21025571 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-55 401 DATE: April 28, 2021 ORDER Entitlement to a rating in excess of 50 percent prior to September 5, 2019 for post-traumatic stress disorder (PTSD) is denied. Entitlement to a rating in excess of 70 percent from September 5, 2019 for PTSD is denied. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran’s depressive PTSD is manifested by symptoms productive, at worst, of functional impairment comparable to occupational and social impairment with reduced reliability and productivity during the period on appeal prior to September 5, 2019. 2. The probative evidence of record does not show that the Veteran’s PTSD manifests in worse than an occupational and social impairment with deficiencies in most areas for the period on appeal from September 5, 2019. 3. The most probative evidence of record does not reflect that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD prior to September 5, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD from September 5, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a TDIU, to include on an extraschedular basis, are not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1964 to January 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 Regional Office (RO) rating decision. The Veteran testified at a hearing before the undersigned in October 2019; a transcript of the hearing is associated with the record. The matters were previously remanded for additional development in February 2020 and December 2020. The issue of entitlement to a TDIU has been raised by the record as part and parcel to the Veteran’s claim for higher ratings pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a rating in excess of 50 percent prior to September 5, 2019 for post-traumatic stress disorder (PTSD) is denied. The Veteran contends that his PTSD symptomatology most closely approximate the severity contemplated by a higher rating. His PTSD is rating at 50 percent disabling prior to September 5, 2019 and 70 percent therefrom. The period for appellate consideration is from up to one year prior to November 5, 2015, the date the VA received the Veteran's claim for increase. The Board notes that the Veteran’s PTSD is rated at 30 percent disabling during the year prior to November 5, 2015, but the record does not contain sufficient evidence to evaluate the severity of his disability during that period. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), 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. 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. Consideration of the appropriateness of a staged rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. The Veteran’s PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9434-9411. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Pursuant Diagnostic Code 9411 for rating PTSD, a 50 percent evaluation is warranted when 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 (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 and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is for application when there is 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. Turning to the medical evidence of record, a December 2015 VA examination found that the Veteran’s PTSD manifest in an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran’s main symptoms were described as depressed mood, anxiety, and sleep impairment. The Veteran was married, which he described as being strained but also “okay.” He denied arguments with his wife but noted that he was a loner and did not have friends. However, he also indicated that he was active in a Veteran’s organization and had friends he spoke to there once a month. He indicated that he sees his sister monthly. He denied suicidal or homicidal ideations and hallucinations. He reported irritability and nightmares, but medications were helpful, and he did not have concentration problems. He had good grooming and hygiene. The Veteran attended another VA examination in April 2018. There, the examiner found that the Veteran’s PTSD manifest in an occupational and social impairment with reduced reliability and productivity. The Veteran did report intermittent passive suicidal ideation and reported attending therapy once a month. In addition to the findings of the December 2015 VA examination, the examiner found a working memory impairment and found that simple attention was somewhat impaired. He also had symptoms of panic attacks more than once a week and disturbances of motivation and mood. Medical treatment records from May 2018 showed the Veteran had reported his PTSD symptoms had improved. For the period on appeal prior to September 5, 2019, the record does not show that the Veteran’s psychiatric disability manifests in an occupational and social impairment with deficiencies in most areas. The VA examinations and medical treatment records do not show symptoms such as neglected hygiene, near continuous panic or depression, or speech impairment. While the Veteran reported some difficulty with friendships and relationships, he was still married and had some people he spoke to regularly, suggesting that he does not have an inability to establish and maintain relationships. The Board acknowledges the Veteran’s contentions that he has suicidal ideation at times. However, to the degree the Veteran contends his symptoms are more severe than shown in the medical records, the Board affords greater probative weight to the findings of the medical professionals, as they applied their medical expertise in determining the symptoms present on examination, and the Veteran has not been shown to possess such medical expertise. Given the above, the Board finds that the Veteran’s psychiatric disability most closely reflects an occupational and social impairment with reduced reliability and productivity during the period on appeal prior to September 5, 2019. Thus, the preponderance of the evidence is against a rating in excess of 50 percent, and the appeal is denied. 2. Entitlement to a rating in excess of 70 percent from September 5, 2019 for PTSD is denied. As discussed above, the Veteran’s PTSD is rated at 70 percent from September 5, 2019. On that date, he attended a VA psychiatric examination. The examiner opined that the Veteran’s PTSD manifest in an occupational and social impairment with deficiencies in most areas. The Veteran was still married to his wife of 49 years. He reported that he had nightmares multiple times a week, and also reported weekly fleeting suicidal thoughts. In addition to his symptoms found on prior VA examinations, the Veteran experienced difficulty adapting to stress, inability to establish relationships, and suicidal ideation. His thought processes were logical and linear, and he was appropriately groomed. There was no impairment in memory, thinking, or concentration. His judgment was considered fair. VA treatment records since that time do not show suicidal ideation. He continued to utilize support groups. It was noted that his grandson stayed with him for a month, and he had been losing weight due to healthy eating. The Board notes that at his hearing, he testified that he had short term memory loss, and contends that the September 2019 VA examiner didn’t ask him about whether he had impaired judgment or abstract thinking. He states that he was not asked about his relationships with family and friends. The Board notes that the Veteran’s testimony is not supported by the examination report, which makes specific note of his social activity and assesses his thought processes. The Board affords greater probative weight to the findings of the skilled medical professional who examined the Veteran and reported his findings. The examiner’s findings are consistent with the other medical evidence of record, which does not show that the Veteran has symptoms such as gross impairment in thought process, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Given the above, the Board finds that the probative evidence of record does not show that the Veteran’s PTSD manifests in worse than an occupational and social impairment with deficiencies in most areas for the period on appeal from September 5, 2019. Thus, the preponderance of the evidence is against a rating in excess of 70 percent, and the appeal is denied. 3. Entitlement to a TDIU is denied. The issue of entitlement to a TDIU is raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran contends that his psychiatric disability prevented him from working in his November 2015 VA examination. The RO also denied entitlement to a TDIU in a March 2021 rating decision. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F. 3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. §§ 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). When the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a Veteran may be entitled to a TDIU on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The issue of entitlement to a TDIU arose as part and parcel to the Veteran’s appeal of the ratings assigned for his PTSD. As such, the relevant rating period for consideration for a TDIU is from up to one year prior to November 5, 2015. As mentioned above, the record does not contain sufficient evidence to evaluate the year prior to November 5, 2015, for which the Veteran has a combined disability rating of 30 percent and does not meet the schedular criteria for a TDIU. From November 5, 2015, the Veteran is service connected for PTSD, rated at 50 percent disabling, tinnitus, rated at 10 percent disabling, and skin cancer, rated at 10 percent. The Veteran does not meet the schedular criteria for a TDIU for that period. The Veteran was service connected for a left knee disability from October 3, 2018, rated at 10 percent. That did not impact the Veteran’s combined rating and he continued to not meet the schedular TDIU requirements. The Veteran’s PTSD was increased to 70 percent from September 5, 2019. His combined rating increased to 80 percent and the Veteran has met the schedular requirements since that time. The Veteran was service connected for right knee instability, rated at 10 percent from November 23, 2020, and a separate rating for right knee arthritis, also rated at 10 percent from the same date. Regardless of whether the Veteran met the schedular criteria during a particular period, the crucial question before the Board is whether the Veteran’s service-connected disabilities prevent him to securing or maintaining a substantially gainful occupation, taking into consideration his past work and education. The Veteran was sent a VA Form 21-8940 Veterans Application for Increased Compensation Based on Individual Unemployability, as well as a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefit in February 2021. The forms sought to obtain information about the Veteran’s prior work and education, as no formal claim for a TDIU was filed. However, the Veteran did not complete the forms as requested. While failure to complete the forms is not fatal to the claim in and of itself, his failure to do so deprives the Board of information as to his employment history, educational history and training, and income information necessary to address a claim for TDIU. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran’s hearing testimony suggests that he worked in automotive repair and that he bounced around jobs frequently. He testified that he had not worked in 10 years (since around 2009) after being fired. A 2008 VA psychiatric examination indicates that the Veteran completed 3 years of college. With regard to the impact of the Veteran’s PTSD on work, the Veteran has stated that he was fired after having trouble getting along with people. The record reflects that the Veteran worked for 20 years at a Ford bodyshop, but the Veteran indicated that his boss was a former Veteran and very understanding. As noted above, the December 2015 VA examiner found that the Veteran had an occupational and social impairment manifest by an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks and the April 2018 VA examiner found that the Veteran’s occupational and social impairment manifest in reduced reliability and probability. The September 2019 VA examiner found that the Veteran was deficient in most areas, including work. At that examination, and consistently throughout the VA examinations, the Veteran reported enjoying working in his mechanical shop that he had at home. He stated that he had seven jobs in one year due to his inability to get along with others. (Continued on the next page)   With regard to the Veteran’s other service-connected disabilities, the Veteran indicated that he had difficulty understanding speech with background noise from tinnitus at a 2011 VA examination. A January 2019 VA knee examination found that the Veteran was limited in standing more than walking due to his knee pain, and he avoids yard work, kneeling, and squatting. A December 2020 examination noted an inability to do prolonged standing, and an inability to do yardwork. The examiner noted that his knee arthritis limited strenuous physical labor. The Veteran does not assert any functional limitations from skin cancer. After thorough consideration of the evidence of record, the Board concludes that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s service-connected disabilities would preclude him from securing or following substantially gainful employment consistent with his education levels and work history at any time during the period on appeal. While the Veteran would have limitations with regard to his ability to do physically strenuous activities, as well as those that require a lot of public interaction or direct supervision, the Veteran would not be precluded from participating in work activities such as having his own repair shop, such as those performed in his prior employment. While the Veteran’s knees may preclude some movements such as squatting or prolonged standing, the Veteran indicated that he still enjoys working in his shop. While the Veteran states that he has difficulty with relationships, he has been married for 50 years and has interactions with family and occasionally with friends. The Board notes that age is not a consideration in evaluating a TDIU. The Board has considered the Veteran’s lay statements as to his limitations. However, it relies more heavily on the medical evidence of record to evaluate the effect of his service-connected disabilities on his employment. In light of the above, Board finds that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s service-connected disabilities have prevented him from securing or maintaining substantially gainful employment. Therefore, the preponderance of the evidence is against entitlement to a TDIU, to include on an extra-schedular basis. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.