Citation Nr: 21027328 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-31 263 DATE: May 5, 2021 ORDER An initial disability rating in excess of 70 percent for PTSD is denied. For the period prior to October 10, 2018, a total disability rating based upon individual unemployability (TDIU) due to the Veteran's service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran's PTSD was not productive of a disability picture that resulted in total occupational and social impairment. 2. Prior to October 10, 2018, the Veteran was unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 70 percent for the Veteran's PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. Prior to October 10, 2018, the criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1981 to October 1985. This matter comes before the Board of Veterans' Appeals (Board), on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this appeal in August 2017 and remanded this issue for further development including scheduling a VA examination. The case returned to the Board for further appellate review. After the Veteran filed his substantive appeal (VA Form 9), his appeal of entitlement to service connection for tinnitus and bilateral hearing loss was granted in a July 2020 rating decision. Because that decision represents a full grant of the benefits sought, those issues are not before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In a December 2018 rating decision, the RO granted the Veteran a TDIU, effective October 10, 2018. A partial grant of TDIU does not bifurcate an appeal for TDIU. Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Payne v. Wilkie, 31 Vet. App. 373 (2019). Thus, the issue remains before the Board. The issue has been recharacterized as entitlement to a TDIU prior to October 10, 2018. 1. Entitlement to an initial disability rating in excess of 70 percent for PTSD The Veteran is currently rated at 70 percent for his service-connected PTSD and contends that his symptoms are more severe than they are currently rated. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400 (o)(2). PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. 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 79 Fed. Reg. 149, 45094; 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. The instant appeal was originally certified to the Board in September 2016. Therefore, the new version of the Schedule for Rating Disabilities is applicable. In the June 2014 VA examination, and subsequent examinations, the examiner specifically references the diagnostic criteria from the DSM-5, therefore the VA is in full compliance. The list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Veteran provided a January 2012 private DBQ for PTSD. The examiner diagnosed the Veteran with PTSD, under DSM-IV criteria. The examiner also diagnosed the Veteran with mood D/O, OSA and cannabis use. The examiner noted that there was total occupational and social impairment. The examiner noted symptoms of anxiety, panic attacks more than once a week, near continuous panic or depression, chronic sleep impairment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work or social relationships, difficulty adapting to stressful circumstances including work or a work like setting, inability to establish and maintaining effective relationships, impaired impulse control, intermittent inability to perform activities of daily living. The Veteran underwent an initial VA examination in June 2014. The examiner found that the Veteran had a diagnosis of PTSD under DSM-5 criteria. The examiner also diagnosed the Veteran with major depressive disorder. The Veteran reported that he has been married 4 times and is separated from his present wife. He reported that his son is probably his closest friend and that he doesn't have any friends. He further reported been relatively socially isolated, withdrawn, and avoidant. He stated that he has been depressed because of the amount of stress he feels in relation to being unemployed and not being able to afford a place to stay, that he is highly irritable and that he has had some occasional outbursts of anger, though he denied being involved in any physical altercations. The examiner determined that there was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The examiner noted symptoms of depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was afforded another VA examination in January 2017. The examiner found that the Veteran had a diagnosis of PTSD. The examiner also diagnosed the Veteran with alcohol use disorder, in sustained remission and determined that it was possible to differentiate the symptoms of the Veteran's PTSD and the alcohol use disorder. The examiner noted that the Veteran's PTSD is solely characteristic of nightmares, flashbacks, recurring thoughts, and intense reactions to reminders of past traumas; avoidance symptoms, irritability and angry outbursts, hypervigilance, concentration problems, insomnia, loss of interests or pleasures, persistent negative emotional states, inability to experience positive emotions, negative beliefs about self, world, and others; tendency to illogically blame self for trauma, and feelings of detachment from others, trouble sleeping, trouble concentrating, and irritability. Alcohol abuse in remission merely suggests that the claimant used to drink alcohol too much, and now it is no longer a problem. The Veteran reported that he doesn't have any good friend as he doesn't go out and "no one comes over", he avoids crowds, can't go to movie theaters, has been married for 17 years, his relationship with his wife is "better than it has been in a long time" The examiner determined that there was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. Once again, the examiner did not find the Veteran to be exhibiting enough symptoms to find him totally occupational and socially impaired. VA treatment records show that in June 2015, the Veteran was very upset during a visit to the hospital and left the visit saying, "I am going to kill someone." The record noted that "when he said he wanted to kill someone he stated, "I was just very upset, I don't really want to kill or hurt anyone else." He states the statement was about the VA in general and he has no plans or intent to kill or harm another person or institution. He denies having any guns. He also denies any suicidal thoughts. He does report ongoing poor sleep, anhedonia, poor appetite, hopelessness at times. He denies any suicidality stating he is living for his granddaughter. He denies any prior suicide attempts." In September 2015, the Veteran reported feeling emotional and hypervigilant; that he does not sleep very well, has a service dog that helps him to calm down, and communicates with his father almost every day via email. In March 2016, the Veteran expressed frustration over his homeless status and of powerlessness in regaining his previous life. The Veteran submitted an October 2018 letter from his Veteran's VA clinical psychologist. Dr. A.J.D. stated that the Veteran has been receiving treatment from the VAMC Behavioral Health Service since 2013 and his PTSD symptoms include intrusive thoughts, anxiety, hypervigilance, exaggerated startle response, flashbacks nightmares, sleep disturbance, irritability, emotional detachment and numbing, concentration deficits, avoidance behaviors, difficulties with anger management, loss of interest in previously-enjoyed activities, and depression. Dr. A.J.D. further added that these symptoms tend to adversely affect many areas of an individual's life, including the ability to sustain interpersonal relationships and maintain employment. He recommended that the Veteran refrain from attempting to return to work at this time and instead focus on his recovery. In the December 2018, the Veteran was afforded another VA examination. The Veteran was diagnosed with PTSD. The examiner noted that the Veteran reported that, since his last examination, he has continued to experience difficulties in his relationships. The patient reported that he is currently married, and that he is "back together with his wife after we were separated for a couple of years". The Veteran reported that he gets angry a lot for no reason. The patient reported that he does not spend time with friends and stated, "I haven't had a friend in 30 years. I spend most of my time with my wife and dog." The Veteran further reported that he talks to his father about 1-2 times each month, and that he also talks to his son occasionally, but that aside from this and his contact with his wife, he does not interact with others. He reported that he avoids crowds and "any situations where there is noise", as such situations cause him to experience anxiety and some symptoms of panic. He remains relatively socially isolated, withdrawn, and avoidant. With regard to motivation, he stated, "I don't really have a lot to be motivated for. I concentrate a lot on my health and try to help my wife around the house, but outside of that, I don't have much to be motivated for." The patient reported that he rarely engages in activities or leisure pursuits, but that he enjoys "playing games on my phone or reading". He also reported that he has continued to experience significant PTSD and depressive symptoms since his last examination. The VA examiner determined that there was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and neglect of personal appearance and hygiene. The Board finds that the Veteran's symptoms are not of such frequency and severity to result in total occupational and a social impairment to warrant a 100 percent rating under Diagnostic Code 9411. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). For the 100 percent rating, there is a requirement of symptoms causing total social and occupational impairment. The Veteran maintained a relationship with his wife, son and father. Further, the Veteran has not had symptoms such as gross impairment in his thought processes or communication, delusions, or grossly inappropriate behavior. The Veteran has reported suicidal ideation once in 1984 but denied current suicidal or homicidal ideation. There were no reports of 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 name. No other symptoms of alike severity causing total social and occupational impairment are shown to exist. While the January 2012 private examiner noted that there was total occupational and social impairment, three VA examiners in June 2014, January 2017 and December 2018 have consistently determined that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. Further, while the Veteran had a period of homelessness, he reported several times that it was voluntary and eventually was able to procure a home for him and his family. This supports the conclusion that the Veteran is not 100 percent disabled according to the relevant criteria. There is no question the Veteran has severe symptoms; however, these symptoms have never been shown to be so frequent or disabling to rise to the level of total occupational or social impairment, which is a level of severity so disabling that some of the examples of symptoms include not knowing one's own name or posing a persistent threat of danger to self or others. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria 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."). The records reflect that the Veteran retained some social functioning as he was still married, has a good relationship with his wife, son and father. Thus, in consideration of the evidence above, the Board finds that, for the initial rating period, the weight of the evidence is against finding that the service-connected PTSD resulted in total occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Because the preponderance of the evidence is against the appeal for a higher initial rating in excess of 70 percent for PTSD for the initial rating period, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU, prior to October 10, 2018. A total disability evaluation based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Generally, a total rating for compensation 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 a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" 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. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability 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, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran's service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Moore, supra. The Veteran contends that his service-connected disabilities render him unable to secure and follow substantial and gainful employment. Initially, the Board notes that although the Veteran filed a formal application for entitlement to TDIU in January 2014, his claim for TDIU is part and parcel of his September 2013 increased rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of his appeal, the Veteran alleged being unemployable since March 2012. See January 2014 and October 2018 VA 21-8940. For the period on appeal, the Veteran was service connected for PTSD at 70 percent, tinnitus at 10 percent and bilateral hearing loss with a non compensable disability rating until October 18, 2019 and 10 percent, thereafter, for a combined disability rating of 80 percent. Thus, the only remaining question is whether the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. The record shows that the Veteran has worked as water treatment. On his application for TDIU, he reported a two years of college degree with no other education or training. The record shows that the Veteran has reported having completed three associate degrees. VA treatment records show that in October 2011, the Veteran reported "I am collecting SS disability for my tinnitus. The buzzing is so loud I can no longer focus. I cannot work because of this and my inability to hear. I no longer drive for lack of focus from my tinnitus and hearing loss..." As above mentioned, during the period prior to October 10, 2018, the Veteran has been afforded two VA examinations in June 2014 and January 2017. Both VA examiners noted diagnoses of posttraumatic stress disorder that contribute to an inability to function well on any job. The examiners further noted that the Veteran's level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran's mental disorders causes symptoms of depressed mood, suspiciousness, chronic sleep impairment, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationship, difficulty in adapting to stressful circumstances, including work or a work like setting and inability to establish and maintain effective relationships. In an October 2018 letter from the Veteran's VA clinical psychologist. Dr. A.J.D. stated that the Veteran's PTSD symptoms of intrusive thoughts, anxiety, hypervigilance, exaggerated startle response, flashbacks nightmares, sleep disturbance, irritability, emotional detachment and numbing, concentration deficits, avoidance behaviors, difficulties with anger management, loss of interest in previously-enjoyed activities, and depression tend to adversely affect many areas of an individual's life, including the ability to sustain interpersonal relationships and maintain employment; and he recommended that the Veteran refrain from attempting to return to work at this time and instead focus on his recovery. The VA treatment notes, and lay testimony provided by the Veteran is consistent with the private and VA examinations of record. After reviewing all the evidence of record, to include VA treatment records, VA examination reports, and lay statements, the lay and medical evidence is at least in equipoise on the question of whether the Veteran's combined service-connected disabilities have rendered him totally unemployable for purposes of individual unemployability benefits during the entire period on appeal. The record as a whole reflects that his service-connected disabilities, and specifically his psychiatric condition, have rendered him unable to secure and follow gainful employment. VA treatment records and his lay statements further report that he has mild memory loss, difficulty dealing with stress and other people making his ability to work with public less likely. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the service-connected disabilities are of sufficient severity to render the Veteran unable to follow or maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.