Citation Nr: 21027069 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-36 786 DATE: May 4, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) for the entire period on appeal is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the occupational and social impairment from the Veteran's PTSD has been manifested by deficiencies in most areas. 2. The preponderance of the evidence does not establish that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in an August 2015 rating decision, the Veteran was assigned a 70 percent rating for his PTSD, effective July 22, 2014. That does not constitute a full grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. This matter was previously before the Board in September 2018, at which time the issues on appeal were remanded to the agency of original jurisdiction (AOJ) for further development. These matters have now been returned to the Board for appellate review. Increased Rating PTSD The Veteran contends that his service-connected PTSD warrants higher ratings as his symptoms are worse than those contemplated by the currently assigned ratings. At a January 2014 VA examination, the examiner noted that the Veteran experienced the following symptoms related to the his diagnosed PTSD: depressed mood; anxiety; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. In addition, in assessing the diagnostic criteria for the disability, the examiner noted that the Veteran experienced the following pertinent symptoms (among others): recurrent, involuntary, and intrusive distressing memories of the traumatic event; recurrent distressing dreams; intense or prolonged psychological distress; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions. It was noted that the Veteran appeared anxious throughout the examination, but that his mental status was within normal limits. Overall, the examiner found that the effects of his disability resulted in occupational and social impairment, with reduced reliability and productivity. At a July 2015 VA examination, the examiner noted nearly identical findings to those noted in the January 2014 VA examination report, and the examiner again found that the Veteran's PTSD in occupational and social impairment, with reduced reliability and productivity. Varying from the January 2014 examination report, the July 2015 examiner noted negligence of personal hygiene and also reported the additional presentation of flattened affect. Another variation from the prior year's examination was the finding of the additional mental health disability of alcohol use disorder, and the Veteran's reporting of experiencing two altercations in the past year. The record demonstrates that the Veteran was also afforded VA examinations in December 2015, September 2017, and July 2020. The December 2015 VA examination report reflects that the Veteran experienced symptoms of: depressed mood; flattened affect; disturbances of motivation and mood; and inability to establish and maintain effective relationships; difficulty in establishing and maintaining effective work and social relationships. During the September 2017 VA examination, the Veteran reported playing cards every few months, going out for walks as much as possible, visiting his granddaughter, and enjoying watching boxing. He conveyed that he is able to enjoy public activities only when engaged in an activity that is meaningful to him. In addition to the symptoms reported above, the examiner noted that the Veteran experienced the following symptoms related to his PTSD: panic attacks that occur weekly or less often; suspiciousness; mild memory loss; intermittently illogical speech; impaired impulse control; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. During the July 2020 examination, the Veteran reported that his symptoms had remained about the same as they were at the time of his September 2017 VA examination. He reported not drinking as much or as frequently as in the past due to establishments being closed, but he also reported taking up gambling. The examiner diagnosed PTSD, alcohol use disorder, and gambling disorder, with differentiated symptoms for each. The Veteran was also diagnosed with tobacco use disorder and cannabis use disorder, both in sustained remission. The examiner did not find that the Veteran's symptoms include intermittently illogical speech, but did note difficulty in understanding complex commands. It was reported that the Veteran appeared alert, focused, and well-oriented during the interview, with thoughts presented in a logical manner and no signs of cognitive disorder. In each of the above noted examinations, the overall opinion was that the Veteran's PTSD symptoms result in occupational and social impairment with reduced reliability and productivity. Based upon the foregoing, the Board finds that the criteria for an initial rating of 70 percent for PTSD are met for the entire period on appeal. Here, the cumulative evidence demonstrates that the Veteran's symptoms have interfered with his relationships and have also caused deficiencies in the Veteran's judgment and mood, impaired impulse control, and mild memory loss. The Board acknowledges that the Veteran's symptoms also include weekly incidents of panic attacks and heightened anxiety, difficulty in maintaining effective work relationships, disturbed motivation and mood, emotional instability, and flattened affect, along with those outlined above. Additionally, the Board finds that there is reasonable doubt as to the date of onset of the increased symptomatology as the examination reports are otherwise markedly similar except for as outlined above. The Board is mindful that it cannot arbitrarily designate a rating and assign a date that is not factually supported. Accordingly, giving the Veteran the benefit of the doubt, the Board applies the collective findings from the July 2015 and January 2014 VA examinations to the initial rating period on appeal prior to July 22, 2014, and grants a 70 percent initial rating for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning a higher rating. However, there is no indication from the record that the Veteran has had total occupational and social impairment as a result of his PTSD. In this regard, the Veteran has been noted to maintain relationships with his son, brother, and other family members, including his granddaughter. He visits with friends and remains socially active. He does not present with persistent delusions or hallucinations, is not disoriented to time or place, and is not in persistent danger of hurting himself or others. Further, while the Veteran has been noted to experience mild memory loss, those symptoms have not been significant. As such, the Board finds that a rating in excess of 70 percent is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a TDIU The Veteran asserts that he is unable to obtain and maintain substantially gainful employment as a result of his combined service-connected disabilities, or alternatively, as a result of his PTSD symptoms alone. The Veteran is service connected for PTSD, evaluated at 70 percent throughout the period on appeal; diabetic neuropathy of the right upper and lower, and left lower extremities- each evaluated at 40 percent disabling as of June 23, 2017; diabetic neuropathy of the left upper extremity, evaluated at 30 percent disabling as of June 23, 2017; and diabetes mellitus, type II, evaluated at 20 percent as of April 27, 2011. Accordingly, throughout the period on appeal, the Veteran has met the schedular criteria for assignment of a TDIU. 38 C.F.R. § 4.16. Initially, the Board notes that despite an attempt to obtain the requested information from the Veteran, he has failed to submit a VA Form 21-8940 or otherwise provided any relevant employment related documentation to substantiate a claim of unemployability due to his service-connected disabilities. While the VA has a statutory duty to assist the Veteran in obtaining evidence to substantiate his claims, the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must also cooperate fully with VA's reasonable efforts to obtain relevant records. The January 2014 VA examination report details that the Veteran has a high school diploma, worked for the New York Telephone Company (referred to in the December 2015 examination report as Verizon) for twenty years, and at the date of examination, had retired approximately 15 years earlier and had not worked since. During the Veteran's September 2017 VA examination for PTSD cited above, the Veteran reported having been retired from a phone company for more than twenty years due to COPD limitations, claustrophobia, and a fear of strangers and enclosed places. The impact of the Veteran's PTSD is described in detail above. As to the remaining disabilities, VA examination reports do not reflect that they interfere with the Veteran's ability to work. Specifically, January 2020 VA examination reports for the Veteran's service-connected diabetes-mellitus, type II and diabetic neuropathy of the four extremities, convey definitive notations that the disabilities do not impact the Veteran's ability to work. The Veteran has not provided specific information regarding his employment, education, and training that would allow for further evaluation and consideration of whether the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment in light of his education and occupational experience. Under 38 U.S.C. § 5107(a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009). The Veteran has not done so in this case. (Continued on the next page) For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to a TDIU. The benefit of the doubt doctrine is therefore not for application in this instance, and the claim for a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.340. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.