Citation Nr: 21031048 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 20-07 673 DATE: May 20, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's PTSD is productive of no more than occupational and social impairment with deficiencies in most areas during the pendency of the appeal. 2. The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for the PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for establishing 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 in the United States Marine Corps from September 1966 to August 1970. He was awarded the Combat Action Ribbon and Purple Heart medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). An interim, January 2020 rating decision granted an increased, 70 percent rating for the PTSD from October 13, 2016. The Veteran testified at a hearing before the undersigned in April 2021. A transcript of the hearing is of record. Entitlement to a rating in excess of 70 percent for service-connected PTSD. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's PTSD is currently assigned a 70 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders (General Formula) and provides, in pertinent part, the following criteria for evaluating PTSD: A 70 percent rating is warranted for symptoms resulting in 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for symptoms resulting in 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 name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the 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. Based on a review of the record, the Board concludes that the Veteran's PTSD symptoms more closely approximate the symptoms associated with a 70 percent rating. Accordingly, the Board finds that the evidence shows that the criteria for a 100 percent schedular rating are not met at any time during the pendency of the appeal. The separate issue of entitlement to TDIU will be addressed below. In this regard, VA treatment records, a November 2017 VA examination report, and statements from the Veteran show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating: impaired impulse control; difficulty in adapting to stressful circumstances; avoidance behaviors; difficulty in trusting others; hypervigilance; a startled response to louds noises and helicopters; sleep problems; and irritability. However, despite the severity of the service-connected PTSD, he was able to enjoy hobbies, including golfing and motorcycle riding; participate in volunteer activities; maintain relationships with most family members, other veterans, and friends; and interact appropriately with VA treatment providers. He did not display gross impairment in thought processes or communication; peristent delusions or hallucinations; grossly inappropriate behavior; or memory loss for names of close relatives, own occupation, or his own name. The Board notes acknowledges a February 2018 VA treatment record notes the Veteran reported he hit another man during an argument. However, he denied a history of violence or fighting and reported the behavior was not like him. There is therefore no indication that he poses a persistent danger of hurting himself or others. Accordingly, the Board finds the evidence shows that the criteria for a 100 percent schedular rating are not met. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met, and the appeal must be denied. Entitlement to TDIU. The Veteran contends his service-connected disabilities warrant a TDIU rating because they have prevented him from being able to work since May 2014. A TDIU may be assigned when the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result a single service-connected disability ratable at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has the following service-connected disabilities: PTSD, rated 70 percent disabling; Residuals of prostate cancer, rated 20 percent disabling; Neck disability, rated 10 percent disabling; Tinnitus, rated 10 percent disabling; Diabetes mellitus, rated 10 percent disabling; Left knee disability, rated 0 percent disabling; Bilateral hearing loss, rated 0 percent disabling; and Erectile dysfunction, rated 0 percent disabling. The combined rating is 80 percent. Accordingly, the schedular rating requirements for a TDIU are met. Granting the Veteran the benefit of the doubt, the Board finds the service-connected disabilities prevent him from securing or following substantially gainful occupation. The Board acknowledges the medical evidence presents contrasting evidence regarding the severity of the Veteran's PTSD. However, while the November 2017 examiner opined the Veteran could carry out a job involving little interaction with others, the record shows that the Veteran's prior occupations, including commercial lending and owner of a printing business, all involved direct interactions with business clients and fellow employees. In addition, the AOJ acknowledged in the January 2020 rating decision that granted the increased, 70 percent schedular rating for PTSD that the Veteran's VA treatment records indicated he had minimized his symptoms during the VA examination. Notably, VA treatment records show the Veteran considered returning to part-time employment in 2017, but a May 2017 treatment record notes he chose not to pursue the opportunity because of his urge to self-isolate and difficulty in establishing relationships. He told the November 2017 examiner that he always had difficulty interacting with others while working. In addition, it appears the PTSD has recently increased in severity. A February 2019 VA treatment record notes the Veteran reported increasing anxiety and social isolation. In an August 2020 statement, he reported his PTSD symptoms had increased in severity due to COVID-19 and the inability to continue his weekly group sessions and biweekly sessions with a VA mental health counselor. He reported he is more irritable; more intolerable of others, including family members; and is experiencing increased sleep disruptions and hypervigilance. Significantly, at the April 2021 Board hearing, the Veteran reported he was accepted to be a 2020 Census worker, but had to stop after making four home visits because of the difficulties he had interacting with the interviewees. The ultimate determination of whether the Veteran is capable of maintaining substantially gainful employment is a factual question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Considering the severity of the Veteran's PTSD, along with his other service-connected disabilities and educational and occupational background, the Board finds is at least in equipoise as to whether the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. Notably, while the Veteran had a successful business career, it does not appear that he has undergone any training that would help him obtain a gainful occupation in a new area that would not require regular interaction with others. In addition, the medical evidence shows the severity of the PTSD combined with the other service-connected disabilities would make performing any occupational task difficult. The Board must therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Accordingly, entitlement to TDIU is warranted. The effective date of the TDIU grant is not before the Board at this time and will be assigned by the AOJ when it grants the benefit. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.