Citation Nr: 21027026 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-01 486 DATE: May 4, 2021 ORDER Entitlement to an increased initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period of appeal, the Veteran's PTSD was predominately manifested by a condition resulting in occupational and social impairment with deficiencies in most areas, due to symptoms such as anxiety, depression, isolation, chronic sleep impairment, mild memory loss, disturbances in motivation and/or mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances. 2. Throughout the relevant period of appeal, the Veteran's service-connected disabilities have not been shown to render the Veteran unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased initial evaluation in excess of 70 percent have not been met for the Veteran's service-connected PTSD. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2019). 2. The criteria for a TDIU due to service-connected disabilities have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. This case comes to the Board on appeal from a rating decision of the VA Regional Office (RO). In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. § Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1 (2019). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability 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. The Veteran's service-connected PTSD is rated as 70 percent. 38 C.F.R. § § 4.130, DC 9411. 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), and an inability to establish and maintain effective relationships. Id. 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, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Id. Additionally, the level of occupational and social impairment due to a psychiatric disorder is the primary consideration in determining the severity of a psychiatric disorder for VA purposes and not all the symptoms listed in the rating criteria must be present in order for a rating to be warranted. See Mauerhan v. Principi, 16 Vet. App. 436, 443-44 (2002) (finding that the psychiatric symptoms listed in the rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, and that a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). A review of the Veteran's outpatient treatment records shows that he has been treated for PTSD during the appeal period, commencing in December 2014. At this appointment, it was noted that the Veteran was suffering from nightmares twice per week, hypervigilance, and intrusive thoughts and images during the day prompted by triggers in media or society. In an August 2020 letter from the Veteran's private primary treating psychotherapist, it was indicated that he had been in treatment with her since December 2015 and has been seen on a weekly basis since that time. The Veteran further indicated at the September 2020 Board hearing that he had increased the frequency of appointments with her since the start of the Covid-19 pandemic. It was noted that the Veteran has continued to struggle with depression and insomnia, mainly characterized by recurrent apathy, lethargy, and abrupt early awakenings. He has not been prescribed medication due to a lack of effectiveness. The Veteran was noted as having the ability to amply conduct his own finances and activities of daily living in an independent manner. The Veteran was provided with a VA PTSD examination in June 2014. At the examination, the Veteran was found to have some symptoms of PTSD, but was not considered at that time to meet the required criterion threshold for a diagnosis. It was noted that the Veteran had just retired from a successful career, was in a long term supportive marriage, and had many close friends. He enjoys going for walks and fishing in his spare time. The Veteran reported symptoms of sleep impairment and avoidance behaviors of things reminiscent of his military service. The Veteran was also noted to have a depressed mood, but he had learned to live with his PTSD symptoms and that they did not appear to largely conflict with the conduct of his life. The Veteran provided the results of a private PTSD examination conducted by his private provider in December 2014. A diagnosis of PTSD was confirmed. He was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Symptoms included sleep disturbance, with nightmares 2 times per week, hypervigilance, and avoidance behaviors. Depressed mood and anxiety were also present. The Veteran was provided with an additional VA PTSD examination in March 2015. A diagnosis of PTSD was made and found to be of an overall moderate severity. He was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. It was noted that the Veteran had a long successful career until he retired by choice in February 2014 and it was indicated that the Veteran had no desire to go back to work. The Veteran was shown as engaged in outpatient therapy, but not taking medication. Symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation or mood, difficulty in establishing or maintaining effective work and social relationships, difficulty in reacting to stressful circumstances, obsessional rituals, and impaired impulse control. The Veteran was noted only to be visibly distressed when recounting combat experiences. The Veteran was provided with an additional VA examination in August 2015. A diagnosis of PTSD was confirmed and found to be of an overall moderate severity. He was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. He had a good relationship with his family and friends, including partaking in activities together such as parties and fishing. He worked around the house and collected stamps as a hobby, interacting with people from around the country. However, he reported that he had mild memory problems and a less willingness to learn new things. The Veteran reported enjoying retirement, with no plans to rejoin the workforce or participate in volunteer work. He was continuing therapy with no medication. Symptoms included depressed mood, anxiety, sleep disturbance, disturbances in motivation and mood, and difficulty in adapting to stressful circumstances. It was noted that his mild memory problems did not appear to significantly affect his social or occupational functioning. The Veteran provided the results of a private PTSD examination conducted by his private provider in October 2016. A diagnosis of PTSD was confirmed and found to have moderate severity. He was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Symptoms included depressed mood, anxiety, sleep disturbance, panic attacks, mild memory loss, flattened affect, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, obsessional rituals, impaired impulse control, spatial disorientation, neglect of appearance and personal hygiene, intermittent inability to perform activities of daily living, and disorientation to time or place. It was noted that this indicated a significant worsening of the Veteran's condition since his retirement. However, in regard to suicidal ideation, the Veteran later clarified at his September 2020 Board hearing that he had not experienced this since his retirement. The Veteran was provided with an additional VA PTSD examination in September 2020. The Veteran's diagnosis of PTSD was confirmed. It was noted that the Veteran had reported an exacerbation of his symptoms due to his non-Hodgkins lymphoma. The Veteran was found to have occupational and social impairment with deficiencies in most areas. The Veteran had limited his activities, although he was still going for walks and stamp collecting. He had regular social contact with his immediate family, brother, and those with whom he shared his stamp collecting hobby. He reported that his memory is not as sharp as it once was. He also drives regularly around areas with which he is familiar. He stated it would be difficult to transition to a new job at this point. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and obsessional rituals. The Board finds that the evidence only supports a rating of 70 percent throughout the relevant appeal period. In this regard, it is noted that the predominate evidence of record appears to show that the Veteran's PTSD actually only resulted in moderate impairment, with occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, throughout most of the appeal period until around 2018 to 2019 with the onset of his non-Hodgkins lymphoma diagnosis. His symptoms were generally consistent, but moderate in presentation without much detrimental effect on his occupation, family, or friendships. During this time he appeared to be able to conduct himself in a productive and social manner without much interference. However, after his non-Hodgkins, lymphoma diagnosis, his psychiatric symptoms worsened and begin to cause a retraction in his social functioning, activities of daily living, and mental acuity. This resulted in an occupational and social impairment with deficiencies in most areas, particularly due to symptoms that were not initially present, but developed over time, such as obsessional rituals, panic attacks, grooming deficiencies, and intermittent inabilities to conduct activities of daily living. Such symptoms would certainly warrant an evaluation of 70 percent. The symptoms earlier in the appeal period did not appear to approximate a 70 percent evaluation, and as such would not support a rating in excess of 70 percent. A higher schedular evaluation is not warranted during this time period, as there is no indication that the Veteran had shown both total occupational and social impairment. Notably, he still appeared to be able to maintain a few relationships, despite relative bouts of isolation, with his wife, brother, and others with whom he engaged for stamp collecting, thereby indicating that he was not totally socially impaired. In conclusion, the evidence of record does not show that an increased evaluation in excess of 70 percent for the Veteran's service connected PTSD is warranted at any time during the period of appeals. 38 U.S.C. § 5110. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16 (a). The Veteran was service-connected for non-Hodgkins lymphoma at 100 percent from January 22, 2019; PTSD at 70 percent from February 12, 2014; a left leg disability at 0 percent from February 12, 2014 and 10 percent from July 30, 2020; and a noncompensable evaluation for left leg scars since September 26, 1968. Thus the Veteran's combined evaluations have been 0 percent from September 26, 1968, 70 percent from February 12, 2014, and 100 percent from January 22, 2019. The Veteran met the schedular requirements for TDIU benefits throughout the appeal period. From January 22, 2019 At the outset, in regard to the period after January 22, 2019, the Board notes that the Veteran is in receipt of a 100 percent schedular evaluation for non-Hodgkins lymphoma, effective from that date, together with a 70 percent evaluation for PTSD. Also effective from January 22, 2019, he has been awarded special monthly compensation pursuant to the provisions of 38 U.S.C. 1114(s). In these circumstances, the issue of entitlement to TDIU benefits after January 2019 is moot since an award of TDIU benefits could not result in any increased compensation. Prior to January 22, 2019 For this period, the Veteran does meet the schedular requirements as discussed above. As such, the inquiry turns to whether the Veteran's service-connected disabilities impaired the Veteran to such a degree that he was not able to engage in substantially gainful employment. The Veteran has been shown to have had a varied and well-educated background for his occupational standing. On his June 22, 2015 VA Form 21-8940 the Veteran indicated that he retired from his job as a stock broker with a New York City based financial firm after more than 34 years. He further indicated that he had up to 2 years of college education. At the Veteran's September 2020 Board hearing, the Veteran reiterated this information, further elaborating on the facts and circumstances leading to his retirement, namely that his PTSD symptoms led to great interference in attempting to adapt to stressful and changing circumstances when new management and protocols were introduced toward the end of his career. Nevertheless, as discussed above in the increased rating section for the Veteran's PTSD, VA examinations did not show that his condition rendered him unemployable. Rather there was some interference at times due to difficulties adapting to certain work environment changes and some mild memory difficulties, but taken as a whole, no indication his disabilities would have prevented all types of employment during this time period to which he was suited by education and experience. (It also should be stated there is no indication that the Veteran's left leg disability or scars caused any occupational functional impairment, let alone a condition leading to unemployability.) (Continued on the next page) The Veteran himself even indicated that, once he left his job, his symptoms appeared worse because he had more time to sit and think about them. However, there was no indication that, had the Veteran continued to work from February 2014 to January 2019, that he would have been unable to do so as a result of his PTSD. Rather it appears that the Veteran would have continued to be able to work though his symptoms, albeit with some moderate degree of interference at times, and that his PTSD symptoms were but one of many considerations for stopping work, including reported general unhappiness with his work overall and nearing retirement age as he indicated at the September 2020 Board hearing. As the evidence fails to establish that the Veteran's service-connected disabilities precluded substantially gainful employment prior to January 2019, the criteria for a TDIU are not met, and the claim must be denied. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.