Citation Nr: 21031161 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 05-35 890 DATE: May 20, 2021 ORDER From September 4, 2004 to September 2, 2006, a higher initial disability rating of 70 percent, but no higher, for the service-connected posttraumatic stress disorder (PTSD) is granted. From January 30, 2006 to September 22, 2006, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. From September 4, 2004 to September 22, 2006, the service-connected PTSD most nearly approximated occupational and social impairment with deficiencies in most areas; the service-connected PTSD did not more nearly approximate total occupational and social impairment. 2. From January 30, 2006 to September 22, 2006, the Veteran was unable to follow (maintain) substantially gainful employment due to the service-connected PTSD. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, from September 4, 2004 to September 22, 2006, the criteria for an increased disability rating of 70 percent, but no higher, have 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. Resolving reasonable doubt in favor of the Veteran, from January 30, 2006 to September 22, 2006, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 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, who is the appellant, had active duty service from July 1969 to July 1972, including service in the Republic of Vietnam from January 1970 to January 1971. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant case has been before the Board of Veterans' Appeals (Board) previously. In August 2017, the Board granted a 50 percent disability rating for PTSD for the relevant rating period from September 4, 2004 to September 22, 2006, and a rating of 70 percent from September 22, 2006. As pertains to the rating period from September 4, 2004 to September 22, 2006, the Veteran appealed the August 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In pertinent part, the Court vacated the denial of a rating in excess of 50 percent for PTSD for this period due to a failure to attempt to obtain certain treatment records and an improper reliance on Global Assessment of Functioning (GAF) scores. A May 2019 Board decision remanded the case to attempt to obtain certain records and to further develop the claim for TDIU. There has been substantial compliance with the requirements of the remand and the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's representative advised the Veteran is satisfied with the grant of TDIU from September 22, 2006 forward, so the PTSD rating for that period is no longer on appeal. Accordingly, the issues are higher rating than 50 percent for PTSD from September 4, 2004 to September 22, 2006, and entitlement to TDIU from January 30, 2006 to September 22, 2006. See February 2021 Correspondence. 1. A 70 Percent Rating for PTSD from September 4, 2004 to September 22, 2006 is Granted. PTSD Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. See Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the 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." See id. 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." See id. Under Diagnostic Code 9411, a 50 percent rating will be 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, disturbance 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. Id. 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. Id. Rating PTSD from September 4, 2004 to September 22, 2006 The Veteran contends that from September 4, 2004 to September 22, 2006 the criteria for a higher rating for the service-connected PTSD have been met. After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to whether a 70 percent rating is warranted based on occupational and social impairment with deficiencies in most areas. In the VA treatment records from October 2004 to September 2006, the Veteran presents with anxious mood and affect (like or similar to anxiety). In October 2004, the Veteran presented with sleep issues (like or similar to chronic sleep impairment) and the Veteran stated that he had to go to the bathroom to hide from his family with frequent crying episodes (like or similar to disturbances of motivation and mood). The Veteran was oriented in all spheres, with no evidence of delusions or hallucinations or harm ideas to self or others. In September 2005, the Veteran noted that he was continuing to experience depressed, anxious, forgetful, and irritable states (like or similar to disturbances of motivation and mood) and was sleeping only three hours per night. In September 2006, the symptoms included feeling melancholic, feelings of helplessness and hopelessness, daytime anxiety, difficulty initiating sleep, anergia, anhedonia, and flashbacks and nightmares related to wartime experiences. The statements by people in the Veteran's family reflect worsened symptomatology and occupational and social impairment. In March 2011, the Veteran's wife stated that she would describe the Veteran as an anxious, aggressive, impulsive, and violent person (like or similar to impaired impulse control (such as unprovoked irritability with periods of violence); that the Veteran is violent and aggressive and when something bothers him or they do not agree, he will get aggressive and hit the walls and doors; that she avoided contradicting him so he can calm down; and there were awful nightmares that would result in him screaming in his sleep and panic attacks that make him unable to go out to crowded places. The Veteran's daughter stated that the Veteran was a good father but that there were moments that scared her when she was a child, that he would have horrible nightmares that would wake everyone in the house, and had fits where he would "just snap" and start yelling and arguing with her mom. She stated that she also knew not to approach the Veteran from behind, as he would turn around and make a gesture as if he was going to punch her. The Veteran's son also stated that he knew not to approach the Veteran from behind because you were liable to get punched or elbowed in the face by accident. In short, the family members describe a volatile situation with someone who struggled with impaired impulse control and difficulty adapting to stressful circumstances. Given the volatility and unpredictability, and resolving reasonable doubt in the Veteran's favor, the Board finds that a higher 70 percent rating, but no higher, is warranted for the period from September 4, 2004 to September 22, 2006. 2. TDIU from January 30, 2006 to September 22, 2006 is Granted. TDIU Legal Authority As stated, disability ratings are determined by applying the criteria set forth in the Rating Schedule, which is based on the average impairment of earning capacity. 28 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 (obtain) or follow (maintain) 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. 38 C.F.R. § 4.16(a), 4.16(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). For the 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; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, or neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 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 obtain and maintain 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, 363 (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 maintain employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts of 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, 356 (2000), the U.S. Court of Appeals for Veteran's 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, 3310332 (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 to be 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 United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. This includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop. Id. As such, "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). In this regard, work need not be on a less than full-time basis to be considered marginal. In Faust, 13 Vet. App. at 356, the Court affirmed the Board's denial of TDIU when the claimant had engaged in part-time work which, nevertheless, brought him earnings which exceeded the poverty threshold for one person. There are a variety of potentially relevant factors in order to determine whether a veteran can secure and follow a substantially gainful occupation under 38 C.F.R. § 4.16: (1) the veteran's history, education, skill, and training, (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue, including limitations in lifting, bending, sitting, and other similar activities, and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including difficulty concerning memory, concentration, ability to adapt to change, ability to handle work place stress, ability to get along with coworkers, and ability to demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). 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), 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. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (holding that 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). TDIU from January 30, 2006 to September 22, 2006 VA has already granted a TDIU from September 22, 2006. The Veteran contends that the TDIU should be effective from January 30, 2006, which is the date that the Veteran stopped working. With the grant of a 70 percent rating for the service-connected PTSD in this decision from September 4, 2004 to September 22, 2006, the threshold combined rating percentage requirement for a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met for this period. After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether, for the period from January 30, 2006 to September 22, 2006, the Veteran was unable to follow (maintain) substantially gainful employment due to the service-connected PTSD. In this case, the Veteran has a college education with no specialized training or education before or after stopping work. Per the VA Form 21-8940 (TDIU claim form) submitted in January 2018, the Veteran made the highest salary in 2002 as a security guard. The Veteran worked for two different security companies. He left his job because of disability. A prior Board decision noted that VA treatment records reflected that the Veteran served at times as a chaplain and asked for clarification as to whether that was employment. The Veteran replied, through his representative, that he intermittently volunteered for Veterans of Foreign Wars as a chaplain for approximately ten years, which involved reading prayers at the monthly meetings that could last one to two hours. That stated, the Veteran stopped volunteering "due [to] my long-term problems of PTSD and concentration problems." Regarding physical ability, the Veteran is not service connected for any physical disability. A May 2006 VA treatment record demonstrates that the Veteran had hypertension, bell's palsy, shoulder arthralgia, rotator cuff sprain or strain, an unspecified back disorder, intervertebral disc disorder with myelopathy, and osteoarthrosis. While it is important to note these physical limitations, the evidence demonstrates that the Veteran's psychiatric disability is the reason why he stopped working and became unable to work. Regarding the psychiatric disability, a private opinion provided by Dr. M.C. in January 2021 stated that the Veteran became a fire inspector upon returning from Vietnam but persistently felt paranoid and suspicious, often was aggressive, and had low frustration tolerance, volatility, unpredictability, and fear. The Veteran stated that he forced himself to work because he had several children from multiple marriages but was in constant fear and his coworkers made fun of him, making loud noises that caused him to dive to the ground. Work became too overwhelming by 2006 and he left the workforce feeling that he could hurt someone. Dr. M.C. stated that "out of sheer will and denial," the Veteran was able to maintain employment until January 30, 2006, but his trauma-based illness continued to progress over time and caused a profound impact on occupational and social functioning. Dr. M.C. stated that he would have recommended that the Veteran stopped working due to PTSD for years before he eventually left his job in January 2006. Dr. M.C. explained that the Veteran's severe psychiatric symptoms prevent him from engaging "in even the most fundamental aspects of societal interactions, let alone the complex environment of an occupational setting." After leaving one position, he was unable to return to the workforce because of his inability to manage the interpersonal interaction required for appropriate functioning in an occupational environment. "There is no question that by at least January 2006 the Veteran was completely unable to function appropriately in any modern occupational environment as a result of his severe and pervasive mental illness." (Continued on the next page) The Board finds Dr. M.C.'s statement to be highly probative, as he reviewed lay statements, VA examinations, progress notes, diagnostic assessments, and psychiatric evaluations. Additionally, Dr. M.C. provided a detailed rationale in support of the opinion that the PTSD caused the inability to maintain employment as of January 2006. Based on the entirety of the record and resolving reasonable doubt in favor of the Veteran, the Board finds that a TDIU from January 30, 2006 to September 22, 2006 is warranted. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.