Citation Nr: 21029601 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 20-09 072 DATE: May 14, 2021 ORDER An increased rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) from February 19, 2018 to January 4, 2021 is denied. An increased rating in excess of 70 percent for the service-connected PTSD from January 4, 2021 is denied. A total disability rating based upon individual unemployability (TDIU) due to the service-connected PTSD from November 2, 2016 is granted. FINDINGS OF FACT 1. From February 19, 2018 to January 4, 2021, the service-connected PTSD disability manifested in occupational and social impairment with reduced reliability and productivity due to such symptoms as: depressed mood, anxiety, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), difficulty in establishing and maintaining work and social relationships, diminished interest in activities, exaggerated startle response, problems with concentration, isolation and withdrawal, and survivor's guilt, without evidence of audio or visual hallucinations, suicidal thoughts, or homicidal thoughts. 2. From January 4, 2021, the service-connected PTSD disability manifested in occupational and social impairment, with deficiencies in most areas, due to such symptoms as: suicidal ideation without a plan, social withdrawal, neglectful of his own basic activities of daily living, flashbacks, nightmares, intrusive thoughts, avoidance, depression, anxiety, neglectful of personal hygiene, impaired impulse control, unprovoked irritability with periods of explosive anger, inability to establish and maintain effective social relationships, difficulty in adapting to stressful circumstances, and poor concentration. 3. The Veteran was unable to maintain substantially gainful employment as a result of service-connected PTSD disability from November 2, 2016. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 50 percent for the service-connected PTSD from February 19, 2018 to January 4, 2021 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for an increased rating in excess of 70 percent for the service-connected PTSD from January 4, 2021 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met from November 2, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to November 1970. This matter is on appeal from an April 2018 rating decision issued by the Regional Office (RO). The Veteran filed a notice of disagreement in October 2018 and a statement of the case (SOC) was issued in January 2020. The Veteran filed a substantive appeal (VA Form 9) in February 2020. These matters were previously before the Board in February 2021. The Board remanded in order to obtain Social Security Administration (SSA) records and to give the Veteran the opportunity to submit information about his medical care providers so VA could collect any outstanding, relevant records. In February 2021, the SSA National Records Center explained that the requested medical records do not exist. To date, the Veteran has not completed and submitted an "Authorization to Disclose Information to the Department of Veterans Affairs" form (VA Form 21-4142). A March 2021 rating decision granted an increased rating of 70 percent for the PTSD from January 4, 2021. A March 2021 supplemental statement of the case denied an increased rating in excess of 50 percent for the PTSD from February 19, 2018 to January 4, 2021, an increased rating in excess of 70 percent for the service-connected PTSD from January 4, 2021, and entitlement to TDIU. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Pertinent in this case, the General Rating Formula provides that a 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating will be assigned 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); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular rating contemplates 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. 38 C.F.R. § 4.130. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disability, and the effect of those symptoms on his/her social and work situation. 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 was in receipt of a 50 percent rating for the PSTD from November 2, 2016, which was increased to 70 percent from January 4, 2021. The Veteran contends generally that the service-connected PTSD has been manifested by more severe symptoms and occupational and social impairment than the ratings reflect. 1. Rating PTSD from February 19, 2018 to January 4, 2021 After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal from February 19, 2018 to January 4, 2021, the service-connected PTSD disability manifested in occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining work and social relationships, diminished interest in activities, exaggerated startle response, problems with concentration, isolation and withdrawal, and survivor's guilt, without evidence of audio or visual hallucinations, suicidal thoughts, or homicidal thoughts. The Veteran submitted to a VA examination in March 2018. The Veteran reported that he has been married to his spouse for 47 years with two adult children. The Veteran also reported that he has shared common interests with his family and some personal hobbies, although he claimed that his interest in these activities were diminishing. He last worked in May 2008 as a maintenance supervisor. The VA examiner noted the following symptoms: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining work and social relationships, diminished interest in activities, feelings of worthlessness, and excessive or inappropriate guilt. The VA examiner found that the Veteran did not have auditory or visual hallucinations, and the Veteran denied thoughts of harm to self or others. According to June 2018 private treatment records, the Veteran was experiencing survivor's guilt, depression, anxiety, anger/rage, exaggerated startle response, nightmares, sleep difficulties, flattened mood, an inability to trust, as well as isolation and withdrawal. The private examiner also noted that the Veteran had normal memory and some insight into his emotions. During this private examination, the Veteran denied delusional thoughts, auditory and visual hallucinations, and suicidal and homicidal thoughts. The Veteran submitted to a VA examination in July 2018. The VA examiner noted the following symptoms: intrusive thoughts, nightmares, psychological and physiological reactivity, persistent negative state, avoidance behaviors, irritability, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining work and social relationships. The VA examiner also noted that the Veteran was not experiencing hallucinations and was not a harm to himself or others. The evidence of record demonstrates that, throughout the rating period on appeal from February 19, 2018 to January 4, 2021, the Veteran was consistently observed to be alert and oriented, to be appropriate in appearance and behavior, to have logical thought content and normal speech, without severe symptoms such as obsessive rituals which interfere with routine activities, illogical speech, suicidal and homicidal ideation, spatial disorientation, panic attacks, or any audio or visual hallucinations. The Board further finds that, for the rating period on appeal from February 19, 2018 to January 4, 2021, the lay and medical evidence of record does not demonstrate that the service-connected PTSD has manifested in occupational and social impairment, with deficiencies in most areas, to warrant an increased 70 percent disability rating under Diagnostic Code 9411. During this period on appeal the Veteran maintained healthy relationships with family members, including a 47 year long marriage, enjoys hobbies by himself and with others such as golf and woodworking, exhibited no deficiencies of judgment, experienced no audio or visual hallucinations, and is not a danger to himself or others. Based on the foregoing, the Board finds that for the rating period on appeal from February 19, 2018 to January 4, 2021, the weight of the evidence is against an increased (70 percent) disability rating under Diagnostic Code 9411. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Rating PTSD from January 4, 2021 After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal from January 4, 2021, the service-connected PTSD manifested in occupational and social impairment with deficiencies in most areas, due to such symptoms as: suicidal ideation without a plan, social withdrawal, neglectful of basic activities of daily living, flashbacks, nightmares, intrusive thoughts, avoidance, depression, anxiety, neglectful of personal hygiene, impaired impulse control, unprovoked irritability with periods of explosive anger, inability to establish and maintain effective social relationships, difficulty in adapting to stressful circumstances, and poor concentration. See January 4, 2021 Private Examination. The Veteran submitted to a private examination on January 4, 2021. The private examiner opined that the Veteran experienced occupational and social impairment in most areas of his life, reporting the above listed symptoms. The Board further finds that, for the rating period on appeal from January 4, 2021, the lay and medical evidence of record does not demonstrate that the service-connected PTSD has manifested in total occupational and social impairment to warrant a maximum 100 percent disability rating under Diagnostic Code 9411. The evidence does not show total social impairment. Based on the foregoing, the Board finds that for the rating period on appeal from January 4, 2021, the weight of the evidence is against finding total social and occupational impairment; therefore, the weight of the competent and probative lay and medical evidence of record is against a rating in excess of 70 percent for the service-connected PTSD for the period from January 4, 2021. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Legal Authority for TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (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. 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 substantial 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. See 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). 3. TDIU from November 2, 2016 The Veteran is service connected for PTSD rated at 50 percent from November 2, 2016, which was increased to 70 percent from January 4, 2021, tinnitus rated at 10 percent from July 12, 2006, and bilateral hearing loss rated at 0 percent from May 19, 2011. The service-connected disabilities meet the threshold requirements for TDIU eligibility under 38 C.F.R. § 4.16. After reviewing all the evidence of record in this case, the Board finds that the evidence is at least in equipoise on the question of whether the service-connected PTSD disability prevented the Veteran from maintaining substantially gainful employment for the period from November 2, 2016. Per the February 2018 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran advanced becoming too disabled to work in May 2008. The Veteran reported that he was a maintenance supervisor at Citgo Petroleum from March 1975 to May 2008. The Veteran reported that he tried to obtain employment since he became too disabled to work as a maintenance planner. The Veteran completed high school and two years of college. The Veteran specifically claimed that he has anger issues that make it hard for him to work around other people, including difficulty with authority figures. During the July 2017 VA examination, the Veteran reported that he became irritable at work and was sent home. The Veteran also claimed that his work performance and evaluations were varied because of his attitude. The VA examiner noted that the Veteran had difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. During the March 2018 VA examination, the VA examiner assessed that the Veteran would be impaired in work environments that require: frequent interactions with people due to ongoing anxiety and irritability, moving machinery or equipment due to poor concentration, driving due to low frustration tolerance, and fast-paced or complex change due to anxiety and low frustration tolerance. In sum, the VA examiner assessed that it would be difficult for the Veteran to work around others but is able to work by himself. In the June 2018 private treatment records, the private examiner opined that the Veteran is unable to work. The private examiner reasoned that the Veteran's ability to understand and follow instructions, retain instructions as well as sustain concentration to perform simple tasks, sustain concentration to task persistence and pace, respond appropriately to coworkers, and respond appropriately to changed in a work setting are all significantly impaired. During the July 2018 VA examination, the VA examiner assessed that employment is moderately impaired because the Veteran has been able to maintain some productivity but has lower motivation than normal. According to a December 2020 private vocational assessment, the private examiner opined that the service-connected PTSD prevented the Veteran from obtaining and maintaining substantially gainful employment. The private examiner reviewed and summarized the Veteran's relevant medical records. The private examiner noted that the Veteran was easily frustrated, unsure of his ability to make decisions, and unable to deal with coworkers and supervisors as he became verbally combative. The private treatment records note that the Veteran was sent home on several occasions to "cool off" and his job performance declined as documented in his work evaluations. (Continued on the next page) As such, the Board will resolve reasonable doubt in favor of the Veteran to find that the Veteran's service-connected PTSD disability prevented the Veteran from maintaining substantially gainful employment from November 2, 2016. For the aforementioned reasons, resolving all reasonable doubt in favor of the Veteran, the Board finds that a TDIU is warranted from November 2, 2016. 38 C.F.R. §§ 3.340, 3.341, 4.16. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.