Citation Nr: 21027755 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-03 803 DATE: May 6, 2021 ORDER The appeal regarding entitlement to a left knee condition is dismissed. The appeal regarding entitlement to a right knee condition is dismissed. Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. In July 2017 correspondence, the Veteran indicated that he wished to withdraw his appeals regarding his left and right knee conditions. 2. For the entire period on appeal, the Veteran's PTSD was manifested by occupational and social impairment, with deficiencies in most areas. It was not manifested by total social and occupational impairment. 3. For the entire period on appeal, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to service connection for a left knee condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal regarding entitlement to service connection for a right knee condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2006 to October 2008. The Veteran appeals June 2013, October 2016, and May 2017 rating decisions by the Agency of Original Jurisdiction (AOJ). Dismissal The Veteran withdrew his appeals regarding service connection for left and right knee conditions. See July 2017 correspondence. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board of Veterans' Appeals (Board) promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.205. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In the present case, the Veteran specifically withdrew his appeals regarding service connection for left and right knee conditions in July 2017 correspondence. A withdrawal is effective when received. See 38 C.F.R. § 19.55. Since there remain no allegations of error of fact or law for appellate consideration as to these issues, the Board does not have jurisdiction to review the appeals regarding service connection for left and right knee conditions and they are dismissed. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The rating criteria provide that a 50 percent rating is warranted for occupational and social impairment with 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 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 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); 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Considering all relevant evidence, the Board finds that a disability rating of 70 percent, but no higher, for the Veteran's service-connected PTSD is warranted. The Veteran has exhibited occupational and social impairment in most areas. The June 2013 VA examination report noted the Veteran was put on suicide watch in 2014 and that he was treated for his substance induced mood disorder, polysubstance dependence. Psychologist D.B.'s November 2013 opinion noted suicidal ideation, depression, polysubstance dependence, intrusive thoughts, avoidance, severe social estrangement, increased irritability, nightmares, and concentration difficulties. In a September 2016 opinion, Dr. M.C. found the Veteran to have a severe, persistent and progressive mental illness that causes the loss of functionality, social isolation, altered thought processing, and loss of capacity to work. The April 2017 VA examination report noted the Veteran is socially withdrawn, rarely leaves home, has significant anxiety and irritability in social situations, that he is unable to keep employment due to anxiety, memory problems, and concentration problems, he has mild memory loss, disturbances in motivation and mood, and difficulty establishing relationships. A December 2019 opinion by Dr. M.C. found the Veteran's PTSD caused him to be socially isolated, irritable, angry, and incapable of appropriate communication. Dr. M.C. also noted suicidal ideation, that the Veteran is unable to engage in interpersonal interactions other than his immediate family, that he is able to obtain part-time work, but is never able to maintain these short-lived positions due to the severity of his symptoms, and that he has been unemployable since 2012. December 2019 correspondence noted the Veteran has suicidal thoughts and thoughts of violence towards others. The January 2020 VA examination report noted the Veteran is married, that he is employed part time at Home Depot for the past year, but predominantly unemployed prior to that, that he attended a Texas college and was studying carpentry before dropping out in 2017, that he drinks 6 beers daily, has recurrent intrusive memories and dreams, avoidance, persistent negative beliefs and emotional state, irritable behavior, hypervigilance, depressed mood, anxiety, chronic sleep impairment, and difficulty adapting to stressful circumstances as work. Overall, the evidence suggested the Veteran had suicidal ideation, social isolation and withdrawal, and difficulty with communication and establishing relationships with others. Such consistent and severe symptoms warrant a 70 percent rating. However, the Board finds the record demonstrates that the Veteran has not exhibited total occupational and social impairment. The Veteran has a good relationship with his spouse. The Veteran does not have gross impairment in thought process. The evidence of record also does not demonstrate frequent delusions or hallucinations. The Veteran The Veteran has not been found to be disorientated as to time or place. The Veteran also remembers his own name. While the Veteran did exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Hence, the criteria for a finding of a 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms have remained constant at 70 percent levels for his PTSD, staged ratings are not warranted. Thus, the evidence is in equipoise and the Board finds that the criteria for an initial rating of 70 percent, but no higher, for PTSD are met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. TDIU Total disability will be considered to exist where there is present any impairment of mind and 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 for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The evidence suggests the Veteran is currently employed part-time at Home Depot and held various jobs throughout the period on appeal. See December 2019 friend statement; August 2020 VA examination report. December 2019 correspondence noted social security earnings since 2018 that do not amount to more than the poverty threshold during the period on appeal. Although the Veteran may be currently employed, the Veteran only works part-time and December 2019 correspondence noted the Veteran works in a protected work environment given the understanding of his boss who leaves him alone. Overall, the Board finds the Veteran's variously held positions during the period on appeal amount only to marginal employment. The Veteran has a high school education. See November 2019 VA Form 21-8940. The Veteran has held positions in various low paying positions, to include food service, retail, and warehousing. Id. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis for the entire period on appeal. Pursuant to this decision, the Veteran has been rated at 70 percent disabling for his PTSD for the entire period on appeal. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. As noted above, medical evidence suggests the Veteran isolates himself, has avoidance, anxiety, irritability, issues establishing relationships, and has been unable to hold a job for a long period of time due to his PTSD symptoms. Dr. M.C. has submitted opinions noting the Veteran is unemployable since 2012 due to his service-connected PTSD. Dr. M.C. provided adequate detail and rationale. The Board finds Dr. M.C.'s opinion probative. Additionally, 2019 counseling records regarding vocational rehabilitation noted the Veteran is unemployable. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran's service-connected PTSD made him unable to function appropriately in a workplace setting and work well with other people. The Veteran has severe PTSD symptoms that causes him to socially isolate. The Veteran's employment history shows that he is unable to sustain a job and that he attributes this to his PTSD symptoms. Medical providers have found the Veteran unable to work due to his service-connected PTSD. Although the Veteran is able to work, it is only for brief periods, on a part-time basis, and with the understanding of his boss to allow him to work in isolation. Given the Veteran's symptoms of avoidance, irritability, anxiety, and not working well with others, the Veteran would be unable to work in any position that worked with others, as in a construction team, in retail, in customer service, or in food service. The Veteran does not have experience or education to work in another industry, to include in an office setting. Nevertheless, the Veteran has concentration and memory issues that would prevent satisfactory performance. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran's service-connected PTSD at least as likely as not prevented him from obtaining and maintaining substantially gainful employment. Accordingly, resolving all doubt in the Veteran's favor, the criteria for TDIU have been met, the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.