Citation Nr: 21026235 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-60 757 DATE: April 30, 2021 ORDER Entitlement to an evaluation of 70 percent posttraumatic stress disorder (PTSD) is granted. Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the severity, frequency, and duration of the Veteran’s PTSD symptoms have most closely approximated occupational and social impairment with deficiencies in most areas. 2. The Veteran’s service-connected disability, when considered alone, does not render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 70 percent for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §1155, 5107; 38 C.F.R. §§3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1965 to April 1967. This matter comes to the Board of Veterans’ Appeals (Board) from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in which the Veteran was granted service connection for his PTSD with an evaluation of 50 percent. The Veteran appealed the evaluation to the Board. In December 2019, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board remanded the issue in an April 2020 decision for further development and a new VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). TDIU is part of an increased rating claim when such a claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As TDIU was raised by the record, the April 2020 Board decision also remanded the claim for TDIU. The Board is now satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an evaluation in excess of 50 percent for PTSD The Veteran is rated at 50 percent for his initial evaluation of service-connected PTSD and contends that his symptoms are more severe than they are currently rated. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.   Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999).   The Veteran’s PTSD is rated under Diagnostic Code 9411, which directs the condition be evaluated in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The General Rating Formula provides as follows: A 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130.   A 70 percent rating requires 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 50 percent rating requires 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; difficulty in establishing and maintaining effective work and social relationships. Id.  Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove references to the DSM-IV and replace them with references to the updated DSM, Fifth Edition (DSM-5). See 38 C.F.R. § 4.125. The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA has clarified that the provisions of the rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. Here, all VA examinations the Veteran received were conducted using the criteria from the DSM-5. 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, 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. 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 listed in the rating criteria, or symptoms of similar severity, frequency, and duration, 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; see also Vazquez-Claudio, 713 F.3d at 117. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Board shall consider all information and lay and medical evidence of record in a case before it, with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465 (1994).   In determining whether an increased disability rating 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 of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The Veteran underwent an initial VA examination in May 2014. The examiner found the Veteran to have chronic PTSD under the DSM-5 criteria with an adequate stressor and traumatic events from his active duty service described by the Veteran. The examiner found the Veteran’s PTSD symptomatology to cause occupational and social impairment with reduced reliability and productivity. The examiner also noted that the Veteran presents symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances in motivation and mood. The examiner noted that the Veteran was cooperative and reliable during the exam. He was also noted as giving very detailed responses. On examination, the Veteran reported being “happily married for 44 years” and having close relationships with his spouse, children, and grandchildren. He reported having multiple hobbies but stated that he had withdrawn from many social activities in recent years. The Veteran underwent a private examination in May 2015. The examiner noted the Veteran’s PTSD but found the Veteran to have total occupational and social impairment, although this assertion is not backed by any medical evidence or rationale on the record. The examiner used the DSM-5 to evaluate the Veteran. He stated that he prefers being alone and “does not leave the house unless he has to.” He reported intrusive memories and crying episodes. The examiner stated that the PTSD symptoms described cause clinically significant distress or impairment in social, occupational, or other important areas of function. The Veteran’s symptoms were reported as depressed mood, anxiety, chronic sleep impairment, flattened effect, disturbance of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. On appeal, the Veteran submitted records from the James J. Howard VA Community Based Outpatient Clinic in Brick, New Jersey. He also submitted lay statements from his wife. At the outpatient clinic, the Veteran attends one on one counseling with Dr. M.A. The records from the outpatient clinic also note the Veteran’s PTSD. In early September 2016 the Veteran reported having thoughts about taking his own life despite a negative screening for suicidal ideation. In a separate medical treatment note, the Veteran reports no suicidal ideation or attempts of self-harm. However, in December 2016, the Veteran again reported that he has had suicidal ideation on and off since his 20s and he stated that he was last suicidal a couple days ago. In March 2017, his wife wrote a letter, stating that the Veteran’s health has greatly improved since beginning to see counselors at the Brick outpatient clinic and at the Veteran Center in Lakewood. She notes that the prescription and therapy he receives has made a remarkable difference in his demeanor, stating that his emotional and mental health has been stable and agreeable. She also noted that he has been able to cope with various social settings and has even been able to manage some stressful situations as well. The Veteran then received a hearing before the undersigned VLJ in December 2019. During the hearing, the Veteran reported that he is having nightmares, flashbacks, and severe mood swings. He also reports having bouts of anger, road rage and some suicidal ideation. The Veteran also testified that he is hypervigilant and finds himself checking the perimeter of the house when he wakes at night. The Veteran also submitted another letter from his wife, a letter from the Director of the Lakewood Veteran Center, and additional medical records from the Brick outpatient clinic. The medical records from the outpatient clinic note that between 2017 and 2019, the Veteran’s PTSD symptoms have been improving and that his post-traumatic symptoms were found to be overall stable. The Veteran’s wife also noted in her December 2019 letter that the Veteran is experiencing a more stable quality of life and that the Veteran’s one on one counseling and group therapy has helped him manage his symptoms. The July 2019 letter from the Lakewood Veteran Center describes the Veteran’s PTSD symptoms as “significantly intense” and list his symptoms as angry outbursts, anxiety, depression, panic attacks, a need to isolate, combat nightmares, hyperarousal, hypervigilance, avoidance as a coping mechanism, and feelings of detachment. The Veteran received another VA examination in July 2020. The examiner conducting the examination reviewed the entire claims file and conducted an approved telehealth examination with the Veteran. The examiner reported that the Veteran’s PTSD continues to cause reduced reliability and impaired social functioning. The examiner also stated that the Veteran’s PTSD was a stable and permanent condition. The examiner found that the Veteran’s PTSD causes occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran continues to have interests, so long as they do not involve large social crowds. He has an interest in more isolating activities, such as reading about the Civil War, gardening, and fly fishing. The examiner noted that the Veteran presents symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner also noted that the Veteran’s attention and concentration was normal, his short- and long-term memory was intact, he did not present any evidence of tangential thoughts, loose associations or psychotic symptoms including auditory and visual hallucination. He also denied any suicidal or homicidal ideation including plan, intent, preparatory behavior, or attempt. The examiner characterized the overall level of the Veteran’s symptomatology as moderate, including in employment, social functioning, and concentration. After a full review of the Veteran’s medical records and lay testimony of the record, the Board determines that the Veteran is entitled to a rating of 70 percent for his PTSD. The evidence establishes that the Veteran’s PTSD more nearly approximates occupational and social impairment with deficiencies in most areas, which warrants a 70 percent rating under Diagnostic Code 9411. The Veteran is specifically reported throughout the record as having suicidal ideation. The Board further notes that the Veteran's history of suicidal ideations is a significant factor in granting a higher rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (holding that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas). Thus, entitlement to a 70 percent rating for the Veteran’s PTSD is granted. Although the Veteran has exhibited symptoms of a 70 percent rating for PTSD, the Board finds that the Veteran does not show symptoms sufficient to receive a 100 percent rating for the disability. See Mauherhan v. Principi, 16 Vet. App. 436 (2002) (stating that 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). Although the Veteran did report suicidal ideation in 2016 and in the hearing in 2019, he does not show any persistent or actual danger of hurting himself or others. In Bankhead, the Court held that there is a differentiation between thoughts of suicidal ideation and actual risk of self-harm which is referenced in the 100 percent rating criteria. Bankhead, supra at 11. The Veteran also was consistently noted by VA medical professionals to be capable of daily activities, personal hygiene, and handling his financial affairs. The Veteran maintained good relationships with his two sons and his grandchildren, as well as his wife. During the July 2020 examination he also reported having interests such as reading about the Civil War, gardening, and fly fishing. Accordingly, the Board does not find that the Veteran’s symptoms were of such frequency, severity, and duration that they resulted in total occupational and social impairment to warrant a higher 100 percent evaluation. The evidence leads to one conclusion: while the Veteran has significant symptoms and deserves a 70 percent rating for his service-connected PTSD, his symptoms and the severity, duration, and frequency of them, do not give rise to a 100 percent rating for his disability. 2. Entitlement to total disability based on individual unemployability (TDIU) The Board must also determine whether the Veteran is due a grant for TDIU. TDIU is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation”).VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the obtaining and maintaining of substantially gainful employment. Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must 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). In the case at hand, the Veteran has been granted an increase to 70 percent for his PTSD. Thus, the Veteran does meet the schedular criteria. However, the Board finds that the Veteran is deemed to be employable. The Veteran worked for more than three decades as a science teacher for the Ocean Township School District until his retirement in 2001. There is also no evidence of record that the Veteran was forced to leave his job solely due to any PTSD symptoms. Finally, as noted above, the Veteran received multiple medical examinations, none of which found the Veteran to have total occupational impairment. In the most recent examination conducted by the VA, the examiner found the Veteran to have occupational and social impairment with reduced reliability and productivity. The Board finds that the Veteran is still able to hold substantially gainful employment, despite his service-connected PTSD. The Board finds that entitlement to TDIU is not warranted. In so finding, the Board notes that the May 2015 private examiner found that the Veteran’s PTSD symptoms caused total occupational and social impairment. However, the examiner did not opine specifically concerning the impact of PTSD on the Veteran’s ability to work, noting only that he had retired in 2001. The Board finds the conclusion of this examiner that the Veteran’s PTSD caused total occupational impairment to be of little probative value, as the totality of the evidence of record does not support a finding that the Veteran has been totally occupationally impaired due to his PTSD. In that connection, the Board notes that the July 2020 VA examiner specifically found the Veteran’s PTSD to cause no more than moderate impact on his employability; neither VA examiner found the Veteran to experience total occupational impairment due to his PTSD. In finding that the Veteran’s service-connected PTSD has not caused him to be unemployable, the Board has considered the lay statements from the Veteran, indicating in pertinent part complaints of his inability to work due to PTSD. However, the Board has determined that the medical evidence is more probative on the issue, and that it outweighs these lay statements. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board’s authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence ). In addition, the Board finds the May 2014 and July 2020 VA examinations and opinions of record to be highly probative, as they are each shown to have been based on a review of the claims file and examination of the record and are each accompanied by a sufficient explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board finds the May 2015 private evaluation less probative, because that examiner gave no rationale for the opinion that the Veteran’s experienced total occupational impairment due to his PTSD. Although the Board finds that the Veteran does indeed have some impairment due to his service-connected PTSD, such a level of impairment is recognized by the rating assigned during the appeal period. Based on the above, the Board finds that the preponderance of the probative evidence indicates that the Veteran’s service connected PTSD does not render him incapable of employment. Thus, while the record shows some limitation of the Veteran’s ability to work due to PTSD, there is no showing of unemployability upon which a grant of TDIU can be based. Therefore, the claim is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.