Citation Nr: 21026746 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 13-06 578A DATE: May 3, 2021 ORDER Entitlement to an increased evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD) prior to October 2, 2019, and in excess of 70 percent thereafter is denied. Entitlement to a total disability based on individual unemployability (TDIU) prior to October 2, 2019 is denied. FINDINGS OF FACT 1. The evidence supports a finding that prior to October 2, 2019, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. The evidence supports a finding that on/after October 2, 2019, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 3. The Board finds that the pertinent and more probative evidence of the record does not demonstrate that the Veteran's service connected disabilities alone were of sufficient severity to render him unable to secure and maintain substantially gainful employment, prior to October 2, 2019. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 30 percent for PTSD prior to October 2, 2019, and in excess of 70 percent thereafter are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a total disability based on individual unemployability prior to October 2, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.1, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1973. In April 2018, the Board remanded the Veteran's claims for additional development. The Board finds that there was substantial compliance with the remand directives for the issue on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In an August 2020 rating decision, the Regional Office (RO) assigned a temporary total evaluation effective March 7, 2011, a 30 percent evaluation effective April 1, 2011 and a 70 percent evaluation effective October 2, 2019 for the Veteran's PTSD. The RO also assigned a TDIU effective October 2, 2019. The earlier period is on appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. § Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. (2019). While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. PTSD Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Id. TDIU The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). This cannot be awarded by the Board in the first instance, but only considered after a preliminary referral to the Director of the Compensation service. That has been done in this case and the Board may proceed with its consideration. In reaching such a determination, 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, 529 (1993). Consideration may not be given to the impairment caused by nonservice connected disabilities. See 38 C.F.R. §§ 3.34, 4.16, 4.19. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Substantially gainful employment is 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 a Veteran actually works and without regard to a Veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). 1. Entitlement to an increased evaluation in excess of 30 percent for PTSD prior to October 2, 2019 and in excess of 70 percent thereafter The Veteran contends that he is entitled to an evaluation in excess of 30 percent for PTSD prior to October 2, 2019. The Board concludes that prior to October 2, 2019, the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. February 2011 VA outpatient treatment records reveal that the Veteran was diagnosed with major depressive disorder, anxiety disorder, and alcohol dependence. He was hospitalized and placed on a ninety-six hour hold. The Veteran was prescribed medication and therapy. The Veteran's discharge summary indicates a GAF score of 75. The Veteran was prescribed therapy and encouraged to seek treatment for his chronic alcoholism. February 2011 private treatment records reveal that the Veteran presented with symptoms of alcoholism, depression, and possible suicidal ideation. During the psychiatric examination, the Veteran denied feeling suicidal or homicidal. His thought process was noted as logical with normal speech and memory noted. The examiner noted that the Veteran's insight and judgment was impaired. The examiner diagnosed the Veteran with recurrent severe major depression, but non-psychotic. The examiner also diagnosed PTSD and alcohol dependence. April 2011 VA outpatient treatment records reveal that the Veteran was treated for depression, anxiety, and alcohol dependence. The Veteran reported that his nightmares have decreased and overall, he is doing well. In a May 2011 VA PTSD examination, the examiner diagnosed the Veteran with PTSD and was assigned a GAF score of 65. The examiner diagnosed pain and intrusive memories of the in-service stressor occurring two to three times a week. The Veteran reported a history of sleep disturbances and becoming increasingly agitated and distressed. The Veteran also reported alcohol abuse as a means of self-medication. The Veteran reported that he is currently married and enjoyed attending religious services or dining out with his wife and friends. During the examination, the Veteran presented well oriented, alert, and cooperative. His thoughts were clear and his cognitive abilities, including memory, judgment and abstraction was noted as normal. The Veteran's speech and hygiene was noted as appropriate with his speech and communication noted as normal. There was no evidence of paranoia, delusions, hallucinations, suicidal ideation, or obsessional rituals. Concerning functional and occupational limitations, the Veteran reported that he was self-employed fulltime as an electrician and heating and air conditioning technician. In a May 2013 VA outpatient psychiatric treatment note, the Veteran reported feelings of anxiety and hopelessness. The Veteran also reported a loss of sleep. December 4, 2014 to December 8, 2014 VA impatient treatment records reveal that the Veteran presented to the emergency room intoxicated after being found unconscious by his wife on the floor of their home bathroom, with a rope tied around his neck. The Veteran reported excessive consumption of alcohol and having symptoms of ongoing depression for the past two weeks. During his hospitalization, the Veteran underwent a mental health examination which revealed normal findings. At discharge the Veteran was prescribed outpatient therapy and alcoholism treatment. February 2019 VA outpatient psychiatric treatment records reveal that the Veteran reported that he was sober and not experiencing any psychotic or manic symptoms associated with his PTSD or depression. The Board also reviewed and carefully considered the Veteran's lay statements asserting that prior to October 2, 2019, the severity of his service-connected PTSD warranted an evaluation in excess of 30 percent. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to the severity of his PTSD as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran reports that prior to October 2, 2019, the severity of his PTSD has increased, the competent and credible evidence of record reveals that the Veteran does not have 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; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships which causes occupational and social impairment with reduced reliability and productivity. Further, while the May 2011 VA mental disorder examination records show that the Veteran reported complaints of becoming increasingly agitated and distressed, the examiner diagnosed the Veteran as negative for suicidal or homicidal ideation. The examiner also did not diagnose any findings of impaired judgment. Furthermore, the examiner did not diagnose any difficulty in establishing and maintaining effective work and social relationships which cause occupational and social impairment. Moreover, the Veteran reported during the examination that he was currently married and enjoyed attending religious services or dining out with his wife and friends. Importantly, the Veteran reported that he was currently self-employed fulltime as an electrician and heating and air conditioning technician. The examiner also recommended that the Veteran cease his chronic alcoholism to improve his PTSD symptomology and lower his risk of suicide. The Board does recognize that the Veteran was hospitalized during the period on appeal for psychiatric emergencies; however, as determined by the examiners above, the onset of the Veteran's psychiatric emergencies was primarily caused by his history of chronic alcoholism. As such, the Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. The Board finds that based on the evidence of the claims file, prior to October 2, 2019, the 30 percent evaluation currently assigned better approximates the trajectory of the Veteran's current PTSD symptoms. As the Board reviewed the Veteran's records and determined that they do not support an increased disability rating in excess of 30 percent for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102 (2020) Turning to the Veteran's contention that he is entitled to an evaluation in excess of 70 percent on/after October 2, 2019. In an October 2019 VA PTSD examination, the examiner diagnosed the Veteran with PTSD and major depressive disorder. Occupational and social impairment with reduced reliability and productivity was noted by the examiner. The Veteran reported that he is married and continues to attend church with his wife, but his social life has decreased. The Veteran also reported that he stopped driving to cope with the PTSD stressors he is feeling. The Veteran also reported that he no longer attended therapy, but has been sober from alcohol abuse since 2016. The Veteran also denied any present suicidal ideation. The examiner noted the following symptomology: depressed mood; anxiety; suspiciousness; weekly panic attacks; chronic sleep impairment; flattened affect; disturbances of motivation or mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in establishing and maintaining effective work relationships; and suicidal ideation. The examiner noted that the Veteran should not be a current imminent or increased risk. The examiner noted that the Veteran's PTSD hindered his ability to stay focused on work task and that he has attention issues causing him to make mistakes. The Board finds that on/after October 2, 2019 the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with deficiencies in most areas, such as work. Further, while the October 2019 mental disorder examination records show that the Veteran reported complaints of depression, increasing PTSD symptomology, a decreased social life, and suicidal ideation, the examiner determined that the severity, frequency, and duration of the Veteran's symptoms should not be a current, imminent, or increased suicide risk. The Board also reviewed and carefully considered the Veteran's lay statements asserting that on/after October 2, 2019, the severity of his service-connected PTSD has increased, and an increased evaluation is warranted. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to the severity of his PTSD as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran reports that the severity of his PTSD has increased on/after October 2, 2019, the competent and credible evidence of record reveals that the Veteran does not have 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; or memory loss for names of close relatives, own occupation or own name which causes total occupational and social impairment. In-fact, the Veteran reported in his most recent examination that he still regularly attends religious services with his wife weekly. He also denied any significant marital issues. Although the Veteran has been diagnosed off and on with periods of suicidal ideation, the most recent VA examiner determined that the Veteran's suicidal ideation symptoms should not be diagnosed as a current, imminent, or increased risk of suicide. Moreover, the Veteran reports no significant hospitalizations for his PTSD or any other mental disorders on/after October 2, 2019. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The Board finds that based on the evidence of the claims file, on/after October 2, 2019, the 70 percent evaluation currently assigned better approximates the trajectory of the Veteran's current PTD symptoms. As the Board reviewed the Veteran's records and determined that they do not support an increased disability rating in excess of 70 percent for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102 (2020) 2. Entitlement to a total disability based on individual unemployability prior to October 2, 2019 The Veteran essentially contends that he is entitled to a total disability based on individual unemployability prior to October 2, 2019. The Veteran was also assigned a total rating prior to October 2, 2019 for a period of hospitalization. The entire period is on appeal, except for the period where he was in receipt of a temporary total rating for a period of hospitalization. The Veteran submitted a February 2014 compensation claim based on individual unemployability. At the time, the Veteran reported that he was employed as a maintenance supervisor from February 2011 to March 2012. The Veteran also reported that his employment ended when his PTSD symptoms rendered him to disabled to maintain substantially gainful employment. Prior to October 2, 2019, the Veteran is service connected for the following: PTSD at 30 percent; tinnitus at 0 percent; and bilateral ear hearing loss at 0 percent. As the Veteran does not have a single service-connected disability ratable at 60 percent or more, or there are not more than two or more disabilities with one at least ratable at 40 percent or more, and a sufficient additional disability to bring the combined rating to 70 percent or more, the Veteran does not currently meet the schedular requirements for consideration of individual unemployability prior to October 2, 2019. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The record reveals that the claim for a TDIU prior to October 2, 2019 was forwarded to the Director of Compensation Service for extraschedular consideration. The opinion was that an extraschedular grant of TDIU was not in order. This opinion is not binding on the Board but is considered additional evidence on the claim. As set out above, the Veteran's service connected psychiatric impairment has caused some employment impairment. In general, however, when his alcohol consumption is controlled, overwhelming psychiatric symptoms were not shown. In fact there was significant improvement once he stopped drinking. While he has reported only marginal employment prior to the current effective date, Psychiatric examiners did not report significant employment impairment over that time due to psychiatric symptoms. As such, the Board concludes that an extraschedular grant of TDIU prior to October 2, 2019 is not warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harris, Michael E. 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.