Citation Nr: 21029708 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-46 979 DATE: May 14, 2021 ORDER An initial 70 percent disability rating for service-connected posttraumatic stress disorder (PTSD) for the period on appeal prior to February 6, 2018, is granted. A total disability rating based on individual unemployability due to service- connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether prior to February 6, 2018, the Veteran's PTSD symptoms and overall impairment more nearly approximated occupational and social impairment with deficiencies in most areas; however, they have not more nearly approximated total occupational and social impairment. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran's service-connected disabilities preclude his ability to secure and follow a substantially gainful occupation consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 70 percent disability rating for service-connected PTSD, for the period on appeal prior to February 6, 2018, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from July 1948 to July 1952. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that confirmed and continued a previously assigned 30 percent rating for the service-connected PTSD. The Veteran's notice of disagreement (NOD) was received in June 2014. The RO issued the statement of the case (SOC) on October 16, 2015, and the Veteran's VA Form 9, substantive appeal, which the RO considered timely, was received in December 2015. In December 2017 the Board remanded the case to the RO for further development and adjudicative action. In an August 2019 decision, the Board denied a rating in excess of 30 percent for PTSD prior to February 6, 2018, but granted an increased rating of 70 percent for PTSD from February 6, 2018. Also, in that decision, the Board determined that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was reasonably raised by the record; and, the Board remanded the TDIU claim for additional development of the record. See Rice v. Shinseki, 22Vet. App.447 (2009) (holding that a claim for a TDIU is part of a rating issue when unemployability is expressly raised by a veteran or reasonably raised by the record). The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In a June 2020 Order, the Court vacated the Board's August 2019 decision with respect to the denial of a rating in excess of 30 percent for PTSD prior to February 6, 2018 and remanded the matter pursuant to a June 2020 Joint Motion for Partial Remand (JMPR). As the Veteran did not appeal the Board's decision with respect to the 70 percent rating assigned for the PTSD from February 6, 2018, the Court dismissed that issue. Meanwhile, the RO confirmed and continued the denial of a TDIU, and that issue, along with the claim for a rating in excess of 30 percent prior to February 6, 2018 for the service-connected PTSD, have been returned to the Board on appeal. Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 1. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 6, 2018. The Veteran asserts that his service-connected PTSD is more disabling than is reflected by the current 30 percent disability rating currently assigned for the period on appeal prior to February 6, 2018. The Veteran's service-connected PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. This disability is rated under the General Rating Formula for Mental Disorders, which provides as follows: A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. A 70 percent disability rating is warranted when there is 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. A 50 percent disability 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 and maintaining effective work and social relationships. A 30 percent disability rating is assigned for 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). The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A September 2010 VA treatment note indicates that the Veteran reported that his mood remains "good most of the time" and stated that he gets a little depressed but not often. He stated that his main concern was in regards to movements and tremors that he has with his hands and face which have occurred for years. A VA Neurology note date in October 2010 indicates that the Veteran was described as having severe PTSD and was referred to the PTSD clinic. It was also noted that the Veteran has a history of dyskinesial restless movements of all limbs with lip smacking that were determined as likely related to his PTSD. The Veteran was afforded an initial VA examination in conjunction with his service connection claim for PTSD in January 2011. The Veteran was diagnosed with PTSD under the DSM IV. The Veteran reported that he has some difficulty sleeping and has intrusive memories and thoughts about his experiences in Korea. The examiner noted that the Veteran was emotionally distressed when speaking of his experiences in Korea. The Veteran stated that he worked as a pipeline driller and installer for many years, at different places around the country for about 25 to 30 years. He reported doing various kinds of work until he was about 65 and stated that he has been retired since that time. The Veteran reported that although his symptoms are still present, they are not as frequent or severe as they were many decades ago. The Veteran was currently divorced. The examiner noted that the Veteran had "jerky movements which appeared not to be under his control." On mental status examination, the Veteran was noted to be cooperative and pleasant, casually dressed and groomed, with good eye contact, logical and coherent speech with normal rate and rhythm, and appropriate affect. His thought processes were logical and tight. He was fully oriented. His memory was noted to be largely intact and quite good for a gentleman of his age. The Veteran denied hallucinations or delusions and denied suicidal or homicidal ideation. His insight and judgment were assessed as adequate. His moods were generally euthymic with sadness and crying when speaking about his experiences during service. The Veteran stated that for 20 year after service he had difficulty sleeping with frequent nightmares and intrusive thoughts. He stated that he also had problems with anxiety and irritability that lasted for quite a few years. The Veteran stated that in recent years these problems have been less frequent and severe but that he will still startle occasionally to loud noise and still has some difficulty sleeping. The examiner characterized the Veteran's PTSD symptoms as mild to moderate and stated that they would not prevent him from holding gainful employment. In correspondence received in April 2013, the Veteran stated that his PTSD is so severe that he constantly shakes. In June 2013, the Veteran received a VA examination. The examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The Veteran reported living with his girlfriend of 6 years. He also stated that he has a friend whom he regularly drinks coffee with, and he enjoys fishing. The Veteran suffered from difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and exaggerated startled response. The Veteran's PTSD symptoms also consisted of chronic sleep impairment. The Veteran was capable of handling his own financial affairs. In December 2015 and July 2016, the Veteran was seen for routine check-ups. The Veteran's mental status on both occasions was noted as alert and oriented to time, place, and person. His short term and long-term memory were intact. His mood and affect were appropriate. His thought processes were logical and goal-directed. He reported no suicidal or homicidal thoughts and no psychotic symptoms. His insight and judgment were adequate and intact. His appearance was also well nourished, well developed, and well hydrated. In February 2018, the Veteran received another VA examination. The examiner noted the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported he was currently married and had three children, two from which he is estranged. He also reported having one friend. The Veteran reported taking amitriptyline for his symptoms and not seeing a therapist for counseling. The Veteran suffered from irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The Veteran's overall symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, speech intermittently illogical or obscure, difficulty understanding complex commands, difficulty in establishing and maintaining effective relationships, obsessional rituals which interfere with routine activities, and spatial disorientation. The Veteran was orientated to person, place, and time. His facial and verbal tics were noticeable, and he moved his body and arms throughout the examination. The examiner noted the Veteran cried when describing his experiences during the war. The Veteran reported increased anxiety and depression when his medication was previously stopped. He also reported intrusive thoughts and difficulty sleeping that has been problematic since leaving service. He stated his irritability and difficulty interacting with people led to him to quit working. He further reported difficulty controlling his temper when others say things that upset him and limiting his social relationships because of his symptoms. The overall evidence of record has demonstrated that, prior to February 6, 2018, the Veteran consistently experienced depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, speech intermittently illogical or obscure, difficulty understanding complex commands, difficulty in establishing and maintaining effective relationships, obsessional rituals which interfere with routine activities, and spatial disorientation. In order to meet the criteria for a 70 percent disability rating, the Veteran's disability would have to be manifested primarily by occupational and social impairment, with deficiencies in most areas due to symptoms such as suicidal ideation; obsessional rituals; intermittently illogical speech; near-continuous panic or depression; 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; and an inability to establish and maintain effective relationships. In this regard, the Veteran has exhibited obsessional rituals, impaired impulse control, and spatial disorientation. Although he did not exhibit all of the symptomatology consistent with a 70 percent disability rating, resolving all doubt in favor of the Veteran, the Board finds that overall, his disability picture prior to February 6, 2018 more nearly approximates the criteria for a 70 percent disability rating and does not significantly differ from the symptomatology revealed during his February 2018 VA examination which formed the basis for his current 70 percent disability rating from February 6, 2018. See Mauerhan, 16 Vet. App. at 442. The Board has additionally reviewed the evidence to determine if a disability rating in excess of 70 percent may be assigned. A 100 percent disability rating for PTSD requires symptoms more nearly approximating total occupational and social impairment. The preponderance of the evidence of record demonstrates that the Veteran is not entitled to a 100 percent disability rating prior to February 6, 2018, as the evidence does not show symptoms and overall impairment more nearly approximating total occupational and social impairment. Specifically, the Veteran has not been shown to have total social impairment as he maintains a relationship with his wife and as mentioned above, regularly meets with a friend for coffee. Further, although the Veteran reported depression or feeling down during his February 2018 VA examination, the Veteran has at no time endorsed suicidal or homicidal ideation. The Veteran reports issues with irritability and anger; however, there has been no evidence of violent or irrational behavior at any time during the period on appeal, nor has the Veteran demonstrated that he was a persistent danger of hurting others, as he has never been noted as a risk to himself or others. In sum, considering all applicable rating criteria, as well as symptoms of similar severity and frequency, the level of impairment presented by the Veteran's service-connected PTSD during the period on appeal prior to February 6, 2018, warrants a 70 percent disability rating, and no higher. Accordingly, as the overall disability picture more nearly approximates the criteria for a 70 percent disability rating prior to February 6, 2018, the assignment of a 70 percent rating is warranted. Consideration has been given to additional staged ratings since the date of the Veteran's claim (i.e., different percentage ratings for different periods of time). See Fenderson, 12 Vet. App. at 119. There, however, appears to be no identifiable period of time since the date of claim during which a staged rating for the PTSD is applicable. 2. Entitlement to TDIU. The Veteran asserts that his service-connected disabilities prevent him from securing or following any substantially gainful employment. Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16(a) where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is rated at 40 percent or more and the combined disability rating is at least 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric; multiple injuries incurred in action; or, multiple disabilities incurred as a prisoner of war. Id. For the purposes of § 4.16(a), marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual 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, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. Consideration may be given to the veteran's education, special training, and previous work experience, but not to the veteran's age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16; see also Van Hoose, supra. Whether a TDIU is warranted is a legal and not a medical determination, and must take into account all of the medical and lay evidence. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner;" "neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). As a result of this decision, the Veteran's service-connected disabilities include PTSD, rated as 70 percent disabling effective from the date of the increased rating claim; cold injury residuals of the left foot rated as 20 percent disabling from May 24, 2002 and 30 percent disabling from January 3, 2020; cold injury residuals of the right foot rated as 20 percent disabling from May 24, 2002 and 30 percent disabling from January 3, 2020; cold injury residuals of the right hand rated as 10 percent disabling from May 24, 2002 and 30 percent disabling from January 3, 2020; and residuals of malaria rated as noncompensable from May 24, 2002. The Veteran's combined disability rating is 80 percent from the beginning of the appeal period, and 90 percent from January 3, 2020. As the Veteran has a single disability rated at 60 percent (or in the alternative he has a combined rating in excess of 70 percent with at least one disability rated at least 40 percent) the minimum percentage threshold requirements for consideration of a schedular TDIU are met. 38 C.F.R. § 4.16(a). In this case, the collective evidence shows that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation throughout the appeal period. On his April 2021 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported his highest level of education was tenth grade. He reported that his service-connected PTSD, cold injury residuals of the bilateral feet, cold injury residuals of the right hand and residuals of malaria prevent him from securing or following a substantially gainful occupation. The Veteran reported working full time as a heavy machinery operator for a pipeline construction company from approximately 1960 to 1990. He reported that he last worked full time in approximately 1990. The Veteran also reported that his disability affected his full-time employment and he became too disabled to work in approximately 1990. In a lay statement accompanying his application, the Veteran stated that he chose that job because it was the best way to avoid interacting with others on the job. He stated that he would get upset at any small thing and noticed that people irritated him. He stated that when he went back home he realized he could not continue to work due to his conditions. The Veteran stated that his conditions have continued to worsen since I stopped working. He reported experiencing nightmares at least once a week and having extremely interrupted sleep 5 times a month. He reported other PTSD symptoms including flashbacks, hypervigilance, irritability, depressed mood, self-isolating and thoughts of harming others. The Veteran also stated that he has issues driving due to his foot and hand disabilities. He also reported an inability to perform chores and stated that he is not comfortable using a computer. Regarding functional impairment due to the service-connected PTSD, the medical and lay evidence of record indicates that the Veteran's PTSD manifests in a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, speech intermittently illogical or obscure, difficulty understanding complex commands, difficulty in establishing and maintaining effective relationships, obsessional rituals which interfere with routine activities, and spatial disorientation. See February 2018 and December 2019 VA examinations. The December 2019 VA examiner opined that it is as likely as not that the Veteran could be employed in settings in which he was able to work alone, especially if he had a supportive supervisor. The examiner noted that the Veteran reported having a good relationship with his girlfriend and with a good friend but stated that his PTSD does remain severe. Regarding the Veteran's service-connected cold injury residuals of the bilateral feet and right hand, a January 2020 VA examination report indicates that the Veteran's cold injury residuals of the bilateral feet and the right hand include pain, stiffness, swelling, lack of warmth, intermittent episodes of loss of sensation in the hand, sensory disturbance, loss of sensation and thick toenails. With regard to functional impairment, the VA examiner stated that there are limited occupational settings and environments that the Veteran could effectively labor in. The examiner stated that, medically, cold injury residuals can create long-term neuropathic effects, or nerve damage which is often permanent. Additionally, extreme pain may be associated with the injured area and even when cold injuries heal, the damage persists. The examiner stated that, because weight-bearing joints (bilateral feet) are affected, the Veteran may not be able to stand or even sit for long periods without having to reposition. The examiner also stated that having the right hand involved can limit the ability to grasp, lift, carry, or reach. Additionally, the examiner noted that pain medications are often taken to treat the condition and some may cause drowsiness or dizziness. The examiner noted that cold exposure is substantial in industries such as agriculture, forestry, mining, factory work, construction work and related occupations but stated that cold injury residuals can make it difficult to return to any type of work including sedentary jobs because although sedentary jobs are less physical than other work situations, they often require a high degree of manual dexterity. The Veteran submitted a March 2021 private vocational assessment. The private vocational specialist, F.F., stated that the Veteran is unable to perform the full range of physical requirements of work at the sedentary physical demand level on a consistent and reliable basis due, in part, to his service-connected bilateral foot cold injury residuals. F.F. stated that the evidence of record indicates that the Veteran would at least as likely as not have difficulty performing the sitting and standing required of even sedentary employment due to his bilateral foot conditions. F.F. noted that the Veteran's physical limitations are inconsistent with the full range of physical requirements of the sedentary exertional level which requires prolonged sitting and standing and walking for up to one third the duration of a workday. F.F. further noted that the Veteran's cold injury residuals of the right hand would at least as likely as not preclude him from most sedentary jobs which require functional use of both upper extremities for repetitive tasks involving gross and fine manual dexterity. F.F. further stated that the Veteran's PTSD symptoms would at least as likely as not distract the Veteran to an extent that would preclude him from sustaining concentration on work tasks for two consecutive hours and require regular redirection and reminders to remain on task, repetition of instructions, assistance with job tasks, and encouragement from his supervisor. F.F. stated that these limitations are not conducive to competitive employment. F.F. concluded that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, since at least February 2013 to the present due to his service-connected PTSD and cold injury residuals of the dominant right hand and bilateral feet. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). However, a medical examiner is responsible for providing a full description of the functional effects of disability upon a person's ordinary activity (see 38 C.F.R. § 4.10), and such has been done here. The findings, comments and opinions of the VA examiners and private and VA physicians have appropriately been considered as pertinent evidence, along with the Veteran's competent assertions, in determining whether he is able to perform the acts required for substantially gainful employment. In light of the foregoing, the Veteran is found to be unable to maintain employment due to his service-connected disabilities. The available evidence indicates that the functional impairment associated with the Veteran's service-connected disabilities, particularly his PTSD and cold injury residuals affecting his feet and right hand, would preclude the Veteran from returning to his prior work as a heavy machinery operator. Moreover, given his lack of any significant experience outside of that occupation, as well as his limited education, it is unlikely that he would be able to obtain gainful employment in a different profession that would not similarly be precluded by the symptoms of his service-connected disabilities. (Continued on the next page) Taken together, the symptoms associated with all of the Veteran's service-connected disabilities would make it extremely difficult for him to maintain substantially gainful employment. The Veteran's service-connected disabilities would likely allow only marginal employment at best, given the excessive restrictions they would put on finding adequate employment. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal). Accordingly, the evidence is at least evenly balanced as to whether the Veteran is precluded by his service-connected disabilities from obtaining and maintaining substantially gainful employment in occupations related to his education, training, and work experience. Resolving any reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted for the entire appeal period. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.