Citation Nr: 21026302 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 19-12 412A DATE: April 30, 2021 ORDER Entitlement to a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, effective August 17, 2017. Entitlement to a total disability rating based on individual unemployment (TDIU) is granted, effective August 17, 2017. FINDINGS OF FACT 1. Throughout the appeal, the preponderance of the evidence reveals that the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas. 2. The preponderance of the evidence indicates that the Veteran’s service-connected disabilities render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to January 1970. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating of 70 percent, but no higher, for PTSD A disability rating is 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. DC 9411, PTSD, is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. In relevant part, the rating criteria are as follows: A 70 percent rating is warranted where 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 a work like setting); inability to establish and maintain effective relationships. A 100 percent rating 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 minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board finds that based on the review of the lay and medical evidence regarding the Veteran’s occupational and social impairment that the disability picture presented by the Veteran’s PTSD warrants a 70 percent disability rating throughout the appellate period. A November 2017 VA treatment record noted adequate interest and motivation. He worked 15-18 hours weekly. He was responsible for preparing and taking his grandson to school. He interacted with a group of friends once per week. He reported good relationships with his children. The clinician noted that he was oriented, properly attired, cooperative, and well groomed. Speech was normal. No psychomotor agitation was noted. His mood was mildly depressed. His affect was full. His thought process was linear and goal directed. He denied suicidal or homicidal ideation. No delusions were present. Attention and concentration were intact. His insight and judgment were fair. The Veteran underwent a VA examination in December 2017. The Veteran was noted to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He was noted to be divorced and living with his adult daughter’s family. He socialized with two childhood best friends. He had part-time employment as of six months prior. He reported symptoms of dysphoric mood, anhedonia, isolation, withdrawal and low self-esteem. He also reported excessive worry, some concentration difficulties, short-term memory deficits, occasional flashbacks to Vietnam, hypervigilance, intrusive memories, and avoiding large crowds. He denied feeling worthless, hopeless, or manifesting suicidal ideation. He also denied nightmares, night terrors, a hyper-startle response, panic attacks, manic symptoms or thought disorder symptoms. He reported mostly intact sleep. A January 2018 VA treatment record noted that he was staying active and had a fair mood. A September 2018 VA treatment record noted that he denied suicidal or homicidal ideation. He was noted to be alert, oriented, well-groomed and displayed normal speech, no psychomotor agitation, a full affect, and linear thought process. No delusions were evident. Attention and concentration were intact. His insight and judgment were fair. In a December 2018 VA treatment note, the Veteran reported a variable mood and a commitment to staying active, including joining a bowling league. A VA treatment record from March 2019 noted that the Veteran was oriented, well-groomed, displayed normal speech, no psychomotor agitation, and a linear thought process. The Veteran denied suicidal or homicidal ideation. No delusions were evident. Attention and concentration were grossly intact. Insight and judgment were fair. A VA treatment record from June 2019 noted that the Veteran’s behavior was cooperative, his speech was normal, his thought process was goal-directed, and he denied suicidal or homicidal ideation as well as hallucinations. Insight and judgment were unimpaired. A September 2019 VA treatment record noted that the Veteran reported enjoying spending time with friends and family. His interest and motivation were noted as positive. He reported several physical activities. A February 2020 VA treatment record noted that the Veteran’s behavior was cooperative, his speech was normal, his thought process was goal-oriented, and he denied suicidal or homicidal ideation as well as hallucinations. Insight and judgment were fair. The Veteran underwent a VA examination in May 2020. He reported chronic intrusive daytime ideations related to service, distressing dreams and occasional severe nightmares of military trauma events, avoidance of stimuli associated with service, negative changes in mood (including irritability and isolation), and chronic significant emotional arousal/hyperarousal. He reported that he was let go from his employment due to increasing anxiety and keeping to himself. He reported a mild level of impairment in his overall social functioning. He reported a close relationship with his children and that he can be outgoing. He reports being easily distracted and disconnected, which is due to a racing mind and hypervigilance. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work-like setting. He was well-groomed, oriented, did not display abnormal behavior. His speech was normal, and his thought process was reality-based. No evidence of a formal thought disorder or frank psychotic thinking was observed. His insight and judgment were intact. His concentration and memory were found to be mildly impaired. He denied a history of experiencing active suicidal or homicidal ideation. The Veteran submitted correspondence from a private medical provider, J.B., LMFT, dated September 2020. J.B. stated that the Veteran’s symptoms include depression, hopelessness, low mood, difficulty finding joy, detachment from others, feeling out of place socially, poor concentration and memory, hypervigilance, impaired judgment and decision-making, and obsessional rituals that interfere with his daily life. J.B. states that the Veteran’s finances, occupational advancement, social functioning and self-image are significantly impaired due to the Veteran’s PTSD and prior history of self-medicating with alcohol. The Board finds that the record does not establish that, at any point throughout the appellate period, the Veteran’s disability manifested by symptoms such 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. Further, the record does not establish that the Veteran has total occupational and social impairment. To this end, the Board notes that multiple VA treatment records indicate the Veteran manifested normal speech, thought process, insight, and judgment, as well as a lack of delusions or hallucinations. See VA treatment records or examination reports dated September 2018, March 2019, June 2019, February 2020, and May 2020, cited above. Thus, the preponderance of the evidence weighs against the award of the maximum rating under DC 9411. In assessing the severity of the Veteran’s PTSD, the Board has considered the Veteran’s assertions regarding his symptoms, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137138 (1994). As such, the Veteran’s lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of the maximum schedular rating for the Veteran’s PTSD at any point pertinent to this appeal. The Board finds that the appellate period here begins on August 17, 2017, the date of receipt of the claim by VA, and it is not factually ascertainable that an increase in severity occurred within the year preceding receipt of the claim. The Board notes the Veteran’s representative’s correspondence indicating that the claim filed on August 17, 2017, was intended to be and/or could be construed as a substantive appeal of the July 2015 Statement of the Case (SOC) issued in the initial service connection claim. See August 2017 correspondence (stating that the submission is meant to either continue the appeal or request an increased rating). However, a substantive appeal must be filed within 60 days from the date of mailing of an SOC, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105(b)(2); 38 C.F.R. § 20.302(b). In the absence of a properly perfected appeal, the RO may close the appeal and the decision becomes final. 38 U.S.C. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The RO did so in this case, as evidenced by the fact that it did not certify the issue to the Board following the July 2015 SOC. In conclusion, the Board has carefully considered the frequency, severity, and duration of the Veteran’s reported symptoms as well as the level of impairment contemplated by the various levels delineated in the rating schedule and finds that the disability picture presented by the Veteran’s PTSD warrants a 70 percent disability rating, but no higher. Accordingly, the Board concludes that the preponderance of the evidence indicates that the Veteran is entitled to a disability rating of 70 percent. Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to TDIU To establish entitlement to TDIU, there must be impairment so severe that it is impossible for the Veteran to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). A veteran is eligible for a schedular rating of TDIU if either one service-connected disability is rated at least 60 percent or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (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 disabilities incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran’s PTSD is rated as 70 percent disabling effective August 17, 2017. Thus, the Veteran meets the criteria for a schedular rating of TDIU. On review of the evidence, the Board finds that the evidence is at least evenly balanced for and against finding that the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected PTSD. The Veteran’s representative stated in an August 2020 correspondence that the Veteran is presently not working due to a diagnosis of COVID-19; however, it is unclear whether this is merely temporary leave from work. The Veteran filed an Application for Increased Compensation Based on Unemployability in October 2018. He reported that since 2016, he had part-time employment in sales. At his most recent position, he works 15-20 hours per week, in sales, earning a maximum of $900 per month. At his prior positions, also in sales, as of 2016, he also earned a maximum of $900 per month. The Board notes that, even if the Veteran were to earn that much for 12 months, these earnings would fall below the poverty threshold throughout the appellate period. The Board finds that the Veteran did not have substantially gainful employment during the appellate period. The Veteran also stated in his Application that he was unable to concentrate at work and struggled with symptoms to include anxiety, hypervigilance, survivor’s guilt and nightmares that affected his sleep. His symptoms were so debilitating that they affected his duties and prevented him from reaching sales quotas. See also September 2018 notice of disagreement (NOD). The Veteran also stated that he was essentially made to retire from his full-time employment of 30 years as a sales associate in 2014, despite wanting to continue working, because of his PTSD. Moreover, the Veteran reported that he was reprimanded on occasion during his full-time employment for anger, stress, and anxiety. He had to force himself to deal with customers and supervisors. See January 2016 private treatment note from K.L., Ed. D., NCC.; October 2018 Application for Increased Compensation Based on Unemployability. Furthermore, the September 2020 correspondence from J.B. states that the Veteran’s finances, occupational advancement, social functioning and self-image are significantly impaired due to the Veteran’s PTSD. Overall, the weight of the evidence supports a finding that Veteran has been unable to obtain and maintain substantially gainful employment, and TDIU is warranted. Under the facts and procedural history of the appeal, the RO will assign the effective date in the first instance, as an appealable issue. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.