Citation Nr: 21025700 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-12 124 DATE: April 28, 2021 ORDER Prior to May 7, 2019, an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. As of May 7, 2019, a rating in excess of 70 percent for PTSD is denied. As of April 6, 2017, a total disability rating based on individual unemployability due to service-connected disabilities (hereinafter, TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. For the entire appeal period stemming from the Veteran’s April 6, 2017, claim, his PTSD was manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. Resolving all doubt in the Veteran’s favor, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of April 6, 2017. CONCLUSIONS OF LAW 1. Prior to May 7, 2019, the criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. As of May 7, 2019, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. As of April 6, 2017, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision issued in May 2017 by a Department of Veterans Affairs (VA) Regional Office. In December 2019, the Board denied entitlement to an increased disability rating in excess of 70 percent for PTSD and entitlement to a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and in December 2020, the Court granted a Joint Motion for Remand (JMR) that vacated the December 2019 Board decision. The case now returns for further appellate review. VA received the Veteran’s VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, on October 2, 2019, and a rating decision issued in November 2019 awarded a TDIU effective May 7, 2019. However, as the issue of entitlement to a TDIU is part and parcel of the Veteran’s appeal for an increased rating for PTSD, the question of entitlement to a TDIU for the period prior to May 7, 2019, remains on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). Increased Evaluation for PTSD The Veteran asserts the severity of his PTSD warrants ratings in excess of those currently assigned. 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 veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s PTSD is evaluated as 50 percent disabling as of April 6, 2017, the date of service connection, and 70 percent disabling as of May 7, 2019, pursuant to Diagnostic Code 9411, which provides that such disability is rated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. In pertinent part, the General Rating Formula provides a 50 percent rating 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. A 70 percent rating is warranted when 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a). Upon review, the Board finds the Veteran’s PTSD was manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas throughout the pendency of the appeal. Although an April 2017 VA examiner found the Veteran’s PTSD resulted in no more than occupational and social impairment due to mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, the Board finds pertinent that the associated examination report reflects symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and intermittent inability to perform activities of daily living. Additionally, the VA examiner specifically noted that the Veteran’s mood presented as highly anxious, with congruent affect, and his speech was rambling and required redirecting at times. Moreover, the report shows the VA examiner determined that based on the examination, the Veteran needed to seek follow-up treatment and would require weekly individual psychotherapy, ongoing medication management, and group therapy. Additionally, the Veteran submitted a January 2018 private psychological evaluation, wherein Dr. J.W., the Veteran’s treating psychologist, reported that the Veteran’s condition “clearly entails significant occupational and social impairment with deficiencies in work, family relations, judgment, thinking, and mood”. Dr. J.W. based the opinion on the Veteran’s specific symptoms of continuous depression affecting his ability to function independently, appropriately, and effectively at work, suicidal ideation, obsessional rituals with interfere with routine activities, difficulty in adapting to stressful circumstances, impaired impulse control, and inability to establish and maintain effective relationships. With respect to social impairment, the evaluation shows the Veteran had minimal contact with his daughter and sister and that his marriage was a struggle. As for occupational impairment, Dr. J.W. reported that the Veteran’s work performance had begun to deteriorate following his prostate surgery in 2010 and that, according to the Veteran, his company was sold in 2016 after failing under his management. Thereafter, he reported ensuing depression that worsened his PTSD symptoms and that he had not held a consistent job since his company was sold. Moreover, following psychological examination of the Veteran in October 2019, the VA examiner opined the Veteran’s PTSD was manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas. The examination report indicates the Veteran experienced symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, speech intermittently illogical, obscure, or irrelevant, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, and obsessional rituals which interfere with routine activities. Notably, the Veteran reported no improvement in his social functioning since the previous VA examination in April 2017. He was estranged from his daughter, his marriage had been negatively impacted by his anger, and he described his relationship with his live-in son as only “fair”. With regard to occupational impairment in particular, the VA examiner found the Veteran would have great difficulty working in coordination with others without being distracted by them and that he could easily experience reduced reliability and productivity primarily due to depressed mood, poor concentration, decision-making difficulties, intrusive thoughts, and flashbacks. In addition, his inability to tolerate being around people would prevent him from working. Here, the Board affords significant probative value to the opinions provided by Dr. J.W. and the October 2019 VA examiner as such were based on psychological evaluations of the Veteran during the appeal period, consideration of his own statements of his symptoms in light of the rating criteria, and are rather consistent when reviewed together. Such evidence, with consideration of the totality of the nature, frequency, severity, and duration of the Veteran’s psychiatric symptomatology as demonstrated by the contemporaneous medical evidence of record, indicates the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. Thus, an initial rating of 70 percent, but no higher, for PTSD is warranted throughout the pendency of the appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. However, the Board finds the nature, frequency, duration, and severity of the Veteran’s psychiatric symptomatology did not more nearly approximate total occupational and social impairment at any time during the pendency of the appeal. Notably, none of the VA examiners found the Veteran’s symptomatology produced total occupational and social impairment. Additionally, although Dr. J.W. ultimately concluded a “100% disability rating is justified”, the Board finds more probative that the private psychologist’s determination regarding “significant occupational and social impairment with deficiencies in work, family relations, judgment, thinking, and mood” is in alignment with the award of only a 70 percent rating. Further, while the evidence may indicate the Veteran could not maintain employment as a result of his PTSD, as discussed in the Board’s award of a TDIU herein, the record indicates the Veteran maintained his marriage throughout the pendency of the appeal and had a fair relationship with his son. Moreover, the record does not reflect the Veteran’s PTSD was manifested by gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of closest relatives, own occupation, or own name during the pendency of the appeal. Consequently, a rating in excess of 70 percent for the Veteran’s PTSD is not warranted at any time during the pendency of the appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. In reaching its conclusions in the instant case, the Board acknowledges the Veteran’s belief that his PTSD is more severe than as reflected by the currently assigned disability ratings and, partially in consideration thereof, has awarded an initial rating of 70 percent for the entire appeal period. However, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule, and while the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, in denying a rating in excess of 70 percent, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disabilities. The Board has also considered whether additional staged ratings under Fenderson, supra, and Hart, supra, are appropriate for the Veteran’s service-connected PTSD; however, the Board finds that his symptomatology has been stable throughout the pendency of the appeal. Thus, assigning staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine, which has resulted in the partial award of an increased rating for the Veteran’s PTSD. However, insofar as the Board has denied a higher rating for the disability on appeal, the preponderance of the evidence is against such aspect of the Veteran’s claim. Thus, the benefit of the doubt doctrine is not applicable in such regard and his increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a TDIU prior to May 7, 2019. The Veteran contends his service-connected disabilities have rendered him unable to maintain substantially gainful employment since December 31, 2016. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides 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” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include 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 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. As noted above, the question before the Board is entitlement to a TDIU for the period from April 6, 2017, the date service connection for PTSD was established, to May 7, 2019, the date TDIU was awarded. During such period, the Veteran was service-connected for PTSD, now evaluated as 70 percent disabling; adenocarcinoma of the prostate, status post radical suprapubic prostatectomy and bilateral lymphadenectomy (hereinafter, prostate disability), evaluated as 40 percent disabling; emphysema, evaluated as noncompensably disabling; tinnitus, evaluated as 10 percent disabling; erectile dysfunction, evaluated as noncompensably disabling; and abdominal scar, evaluated as noncompensably disabling, with an overall combined rating of 70 percent. Accordingly, he meets the schedular criteria for a TDIU during the pertinent period. With respect to his education, the Veteran’s VA Form 21-8940 indicates he had one year of college; the record also reflects the Veteran’s reports that he failed to complete college due to difficulty with concentration in this regard. His work history includes working as a crew member on a boat, serving as a caretaker on a ranch, and acting as the managing director for Rainbow of California, a manufacturing company. With respect to the latter, the Veteran reportedly worked in such capacity for 22 years prior to the company’s dissolution in December 2016. In this regard, the record contains somewhat conflicting information, as a July 2018 VA treatment record reflects the Veteran’s reports that the company was sold due to foreign competition and rising costs. Conversely, a January 2018 psychological evaluation performed by a private physician, Dr. J.W., appears to indicate that the company was sold “after failing under his [Veteran] management”. In particular, the Veteran reported that after his prostate surgery in 2010, his work performance deteriorated, as he stopped traveling to trade shows, stopped meeting customers, lost his drive, and became fearful of making hard choices. In regard to the functional impairment associated with the Veteran’s service-connected disabilities, an April 2017 VA examiner found the Veteran’s PTSD resulted in no more than occupational and social impairment due to mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. Conversely, Dr. J.W. found the Veteran’s symptoms were severe and constant and would result in significant occupational impairment in January 2018. Moreover, in light of the stable rating now assigned to the Veteran’s PTSD throughout the pendency of the appeal, the Board finds the October 2019 VA examination report deserves some probative value despite being dated subsequent to the appeal period in question. Therein, the VA examiner specifically found the Veteran could easily experience reduced reliability and productivity primarily due to depressed mood, poor concentration, decision-making difficulties, intrusive thoughts, and flashbacks, and he would have great difficulty working in coordination with others without being distracted by them. Moreover, his inability to tolerate being around people would prevent him from working. Additionally, the Board is cognizant of the Veteran’s reports that his effectiveness and motivation at work declined precipitously after his prostatectomy in May 2010. In particular, he asserted the resulting erectile dysfunction and incontinence led to severe psychological consequences and that his symptoms of flashbacks and nightmares associated with his PTSD also worsened as a result of the surgery. Such symptomatology also resulted in increased exhaustion and depression. Based on the above, the Board finds the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of April 6, 2017. Thus, the Board resolves all doubt in his favor and finds that, as of such date, his service-connected disabilities resulted in significant impairment in his occupational functioning and rendered him unemployable. Thus, a TDIU as of April 6, 2017, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3., 4.7. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.