Citation Nr: 21027357 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 12-05 086A DATE: May 5, 2021 ORDER For the appeal period between March 15, 2010 to October 1, 2012, entitlement to a rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD), is granted. Entitlement to a rating in excess of 70 percent for the appeal period from September 1, 2015 to November 25, 2017 is denied. Entitlement to total disability due to individual unemployability (TDIU) for the appeal period from September 1, 2015 to November 25, 2017, is denied. REMANDED Entitlement to a TDIU for the appeal period between March 15, 2010 to October 1, 2012, is remanded. FINDINGS OF FACT 1. For the appeal period between March 15, 2010 to October 1, 2012, the Veteran's service-connected PTSD manifested as no worse than occupational and social impairment with reduced reliability and productivity. 2. For the appeal period between September 1, 2015 to November 25, 2017, the Veteran's service-connected PTSD has not manifested as total occupational and social impairment. 3. Throughout the appeal period from September 1, 2015 to November 25, 2017, the Veteran was not precluded from obtaining or maintaining substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. For the appeal period between March 15, 2010 to October 1, 2012, the criteria for a rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411. 2. For the appeal period between September 1, 2015 to November 25, 2017, the criteria for a rating in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a TDIU from September 1, 2015 to November 25, 2017 are not 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 had active duty in the Army from September 1963 to September 1966 and September 1968 to September 1971. The issues are on appeal from an October 2010 rating decision and was last remanded by the Board of Veterans' Appeals (Board) for additional adjudication in January 2020. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations include: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate ratings can 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 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When determining the appropriate disability evaluation, the Board must consider a veteran's symptoms and how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to be an exhaustive list. Thus, the Board need not find the presence of all or most of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). However, a veteran only qualifies for a given disability rating by demonstrating the specific symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. All ratings in the General Rating Formula are associated with objectively observable symptoms, and the plain language of the regulation clearly requires a veteran's impairment to be "due to" those symptoms. Vazquez-Claudio, 713 F.3d at 118. Under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in her favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to an increased rating in excess of 30 percent for the appeal period between March 15, 2010 to October 1, 2012 and in excess of 70 percent between September 1, 2015 to November 25, 2017 for PTSD. The Veteran's PTSD is rated at 30 percent for the appeal period between March 15, 2010 to October 1, 2012 and at 70 percent for the appeal period between September 1, 2015 to November 25, 2017, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, an evaluation of 30 percent is granted whenever there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A higher evaluation of 50 percent is not warranted unless there is reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 that 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. 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; 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. Appeal period between March 15, 2010 to October 1, 2012 The Veteran seeks a rating in excess of 30 percent for the appeal period between March 15, 2010 to October 1, 2012. Turning to the evidence, VA medical records demonstrate complaints of chronic sleep impairment, anxious mood, and hypervigilance, particularly at nighttime. The Veteran lived with his wife, had good relationships with his children and grandchildren, and was active in his social club and the VFW. He and his wife enjoyed traveling around the country to veterans' conferences. In May 2010, the Veteran was afforded a VA examination to assess his service-connected PTSD. The examiner observed issues with chronic sleep impairment, anxiety, concentration and memory, hypervigilance, strong loss of interest in activities that he used to enjoy, moderate problems with anger and irritability, exaggerated startle responses, and daily consumption of alcoholic beverages. Notably, the Veteran reported that he had thought of suicide once in 2002 after his stroke, but that he had not had these thoughts otherwise. The examiner opined that the Veteran's symptoms had caused deficiencies in his family relations, judgment, thinking, and mood, and occasional problems at work related to interpersonal conflicts or distressing memory. Socially, the Veteran had been married to the same spouse for 43 years and spent time his children and four grandchildren. The Veteran reported experiencing distancing from other family members because of his anger flare-ups. He had one or two close friends and continued going to the VFW or a private social club about once or twice a week. The examiner noted that the Veteran's PTSD symptoms caused issues with his social functioning. Occupationally, he had worked for the New Jersey Turnpike Project from 1990 to 1997, and his work record reveals he had two altercations and two "shoving matches" on the job. He then transferred to another project in Hershey for another year or two until injuring his hand and receiving full disability for the injury residuals. In between the occurrence of his hand injury and receipt of full disability, his employer tried to accommodate him and assigned the Veteran "paper duty." His stroke and hand injury forced him to stay at home, play computer games, and feel depressed. The Veteran reported that he was capable of doing some work around the house but became frustrated when his hand injury prevented him from doing tasks that he could previously perform, such as raking. The examiner remarked that the Veteran's PTSD symptoms mostly interfered with his ability to perform chores around the house. Based on the above, the Board finds that a rating of 50 percent, but no higher, is warranted for the period between March 15, 2010 to October 1, 2012. The evidence shows that the Veteran's service-connected PTSD has manifested as symptoms such as disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; anxiety; impaired concentration/focus; hypervigilance; and chronic sleep impairment. Moreover, the Board finds that these symptoms have resulted in occupational and social impairment with reduced reliability and productivity. Regarding social functioning, the evidence demonstrates that the Veteran has maintained a marriage for more than four decades to the same spouse, was close to his children, and had good relations with his four grandchildren. He belonged to a private social club and was active with the VFW, traveling with his wife to various veterans' conferences around the country. However, he also reported instances that exemplify a relatively moderate degree of social impairment due to his PTSD symptoms. For example, other family members have distanced themselves away from him due to his anger flare-ups. And despite regular attendance at his private social club and with VFW, he stated that he only had one or two close friends. Finally, the Veteran's work history showed that despite having worked as a project manager for almost a decade with the New Jersey Turnpike project, he also was involved in four altercations including two that became physical. As for occupational functioning, the evidence shows a relatively moderate degree of impairment due to his PTSD disorder symptoms. The Veteran displayed memory impairment, issues with concentration and focus, and chronic sleep problems. Although the Veteran was forced to retire due to a physical disability, the May 2010 VA examiner noted that the Veteran's PTSD symptoms mostly interfered with his ability to perform tasks around the house. The Board recognizes that the May 2010 VA examiner found the Veteran's PTSD symptoms have resulted in deficiencies in his family relations, judgment, thinking, and mood, and occasional problems at work related to interpersonal conflicts or distressing memory. However, the Board finds that, on balance, the competent and credible evidence summarized above shows that his PTSD symptoms have resulted more closely to occupational and social impairment with reduced reliability and productivity. Therefore, an increased rating of 50 percent disability, but no higher, is warranted. The Board has considered whether a higher rating of 70 percent is warranted at any point during the appeal period and finds that the weight of the evidence does not support such an increase. At no point has the Veteran's PTSD manifested as most of the symptoms contemplated by the 70 percent rating criteria or symptoms of comparable severity. Specifically, there was no evidence of the following psychiatric symptoms (or similarly severe symptoms): obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; spatial disorientation; neglect of personal appearance and hygiene; near-continuous depression affecting the ability to function independently, appropriately, and effectively; or an inability to establish and maintain effective relationships. The Board acknowledges that the Veteran's symptoms included one instance of suicidal thought in 2002 after his stroke. However, the Veteran denied experiencing any additional suicidal ideation, plan, or intent except for this one report. Therefore, the Board finds that this is an outlier experience, and as there is no evidence suggesting that this symptom was near-continuous or affected his ability to function independently, appropriately, and effectively, 70 percent criteria is not warranted. On balance, there is no point during the appeal period where the Veteran's psychiatric disorder symptoms, including those that can arguably resemble those listed in the 70 percent rating criteria, resulted in or approximated occupational and social impairment with deficiencies in most areas as described by the 70 percent rating criteria. Vazquez-Claudio, supra. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to rating of 50 percent, and no higher, for PTSD for the appeal period. As the evidence preponderates against the award of a rating in excess of 50 percent for PTSD for any portion of the appeal period, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Appeal period between September 1, 2015 to November 25, 2017 The Veteran seeks a rating in excess of 70 percent for his PTSD for the appeal period between September 1, 2015 to November 25, 2017. Turning to the evidence, VA medical records show that the Veteran reported feeling depressed, anxious, sad, and lonely as his wife had passed away. His children visited him often as they lived close by. Otherwise, the Veteran's social activities shifted from settling into a routine of seeing friends and leaving the house more often and was noted at one point to self-isolate. The Veteran also reported continued issues with sleep impairment, hypervigilance, and imbibing wine and vodka daily. Specifically, in January 2017, the Veteran suffered from more frequent and severe nightmares as the month of January was the anniversary of several traumatic events. In March 2017, a VA consult revealed the Veteran demonstrated difficulty understanding, retaining, and/or following directions. Notably, the Veteran admitted to a VA physician in November 2017 that he had attempted suicide in November 2016, and his son had luckily stopped in to pay him a visit and prevented him from doing so. He was intoxicated at the time of the attempt. His son took out all of the firearms from the Veteran's home. The Veteran reported that he continued to have fleeting thoughts of suicide and homicide but denied intention because of his religious beliefs. Based on the evidence, the Board finds that a disability rating in excess of 70 percent for the period from September 1, 2015 to November 25, 2017 is not warranted. To review, the next higher rating of 100 percent is warranted if the Veteran's PTSD symptoms manifested as 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. At no point during the period on appeal did the Veteran's PTSD symptoms indicate total occupational and social impairment. Socially, he maintained close relationships with his children. They stopped in regularly and often to see him as they lived close by. The Veteran also ranged from seeing friends and leaving the house more than needed, establishing a routine. The Board acknowledges the evidence demonstrated that he remained hypervigilant about intruders and sometimes chose to self-isolate. However, generally, he was capable of some social functioning. Occupationally, the Veteran lived alone and was able to maintain the daily tasks and assignments required of living by himself. Therefore, the Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent, not 100 percent, rating. The Veteran is clearly not totally socially impaired as evidenced by his excellent, strong family relationship. Thus, the evidence preponderates against the award of a rating in excess of 70 percent for psychiatric disorder at any portion of the appeal period, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to a TDIU between September 1, 2015 to November 24, 2017. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. Initially, the Board notes that the Veteran's service-connected disability ratings meet the percentage requirements for a TDIU for the appeal period between September 1, 2015 to November 25, 2017. For this appeal period, he had a total disability rating of 90 percent and was service-connected for PTSD; back degenerative joint disease; left ankle with degenerative arthritis, residuals of shell fragment wound; residuals of prostate cancer due to Agent Orange exposure; erectile dysfunction associated with residuals of prostate cancer; left wrist disability; right wrist disability; left knee, residuals of gunshot wound; left ear, residuals of gunshot wound; left ankle scar, painful and tender; right thumb degenerative joint disease; headaches; right hand laceration, residuals of shell fragment wound; right thigh, residuals of shell fragment wound; and right eyelid, residuals of shell fragment wound. Importantly, the Veteran is rated at 70 percent disabling for PTSD during this appeal period. The Board notes that that the Veteran is rated at 100 percent disabling for the appeal periods other than from March 15, 2010 to October 1, 2012 (which is remanded, as detailed below) and September 1, 2015 to November 25, 2017. Therefore, the issue of a TDIU for all other appeal periods is moot. According to his VA 21-8940, the Veteran last worked in 1986 as a security manager and stopped working because of his stroke and right thumb injury. His VA medical records show that he stopped working due to an on-site right thumb injury in the late 1990's, working as a project manager. For the appeal period between September 1, 2015 to November 25, 2017, VA medical records do not contain complaints or remarks stating from medical personnel that his service-connected disabilities prevent him from working. Rather, they show complaints of pain for musculoskeletal disabilities and are negative for headaches. The Board has considered the Veteran's lay statements explaining the impact of his service-connected disabilities on his ability for occupational function. The Board acknowledges that the Veteran has difficulty with difficulty understanding, retaining, or following directions, and sleep impairment due to his service-connected PTSD, as discussed in the increased rating portion of this decision. However, such does not demonstrate that he is precluded from substantially gainful employment, and the additional disability compensation he receives with regard to his service-connected disabilities is intended to compensate the Veteran, in part, for these lost opportunities resultant from his service-connected disabilities. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a TDIU for the appeal period between March 15, 2010 to October 1, 2012 is remanded. The Board notes that the Veteran is seeking entitlement to a TDIU between March 15, 2010 to October 1, 2012. A review of the record shows that for this appeal period, the Veteran did not previously meet the schedular criteria for assignment of a TDIU. However, in the decision above, the Board granted entitlement to an increased rating for the Veteran's service-connected PTSD from 30 to 50 percent disabling for this appeal period. Therefore, the Board finds that the issue of entitlement to a TDIU for the appeal period between March 15, 2010 to October 1, 2012 should be readjudicated following the implementation of the Board's decision above. The matters are REMANDED for the following action: Following implementation of the Board's decision above, readjudicate the claim for entitlement to a TDIU for the appeal period between March 15, 2010 to October 1, 2012. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.