Citation Nr: 21031852 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-04 493 DATE: May 24, 2021 ORDER Entitlement to a disability rating 70 percent, and no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for left ankle achilles tendonitis is remanded. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's PTSD was manifest by panic attacks, depression, irritability with angry outbursts, difficulty in establishing and maintaining effective work and social relationships and passive suicidal ideation. 2. As of December 21, 2011, the Veteran's service-connected disabilities were of such severity as to render him unemployable. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for TDIU have been met as of December 21, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1963 to May 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veteran Law Judge (VLJ) at a December 2020 virtual Board hearing. A transcript of that hearing has been associated with the claims file. These matters were last before the Board in September 2018, at which time they were remanded for further development. The Board finds that there has been substantial compliance with its remand directives the matter of PTSD, but not regarding the matter of the left ankle, and that matter will be remanded. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a disability rating in excess of 50 percent for PTSD. The Veteran contends that his PTSD is more severe than reflected by the current 50 percent rating. VA received the Veteran's informal claim for an increase on December 21, 2011. Under the General Formula for Mental Disorders (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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. In a December 10, 2011 letter, the Veteran stated that when he sees his psychiatrist and tells her that he at times has suicidal thoughts as well as thoughts of carrying it out, but thar she does not document this in the file. A November 16, 2012 VA treatment record notes the Veteran reported he had been neglecting his personal hygiene and has intermittent thoughts of suicide, though no real intent. He then reported hearing a "voice" for the prior 4 weeks that tells him to do innocuous things. It was noted that the Veteran was appropriately groomed and dressed. The Veteran was awarded a VA PTSD examination in January 2013. Occupational and social impairment with reduced reliability and productivity was noted. The Veteran reported that he has no friends and no social life, and that it is difficult for him to relate to his family, stating that he will become anxious and irritable with them. Symptoms of depressed mod, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting and suicidal ideation were noted. The examiner stated that the Veteran's PTSD symptoms have created moderate levels of impairment in his social and occupational functioning and that he would not be reliable in an employment setting. A March 26, 2013 VA treatment record notes the Veteran reported that the "voice was a little less bothersome" but that he remains depressed and very anxious. He further reported sometimes thing that he "might as well end it" but that he has no intent. A May 31, 2013 VA treatment record notes the Veteran reported that the "voice" has decreased in frequency and that he does not think about suicide, though he remains anxious. A March 23, 2015 private psychological assessment from Dr. H. Henderson-Galligan notes the Veteran is socially isolated and withdrawn, relying on his wife for assistance with activities of daily life. The Veteran reported that he has to be reminded to shave and does not "bathe as often as [he] should." Passive suicidal ideation was noted. He reported visual hallucinations of seeing people he knew or who were killed in Vietnam. He further endorsed insomnia, broken sleep, nightmares, disturbances with mood and motivation, exaggerated startle response, mild memory loss, restricted affect, panic attacks, anhedonia, difficulty establishing and maintaining relationships, difficulty concentrating, irritability, feeling detached from others and hypervigilance. The doctor stated that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD, noting the Veteran's "lack of motivation to get out of bed and go to work" and difficulty with concentration. A June 21, 2016 VA treatment record notes the Veteran reported that his irritability has improved, but endorsed fleeting suicidal ideation with no intent. Appropriate grooming was noted. A September 21, 2016 VA treatment record notes the Veteran reported that his irritability has improved. He denied suicidal ideation, but stated that he "has thoughts of what is the purpose." It was noted that the Veteran gardens, reads and teaches a class at his church. The Veteran was afforded a VA PTSD examination in January 2019. PTSD with occupational and social impairment with reduced reliability and productivity was noted. The Veteran reported working as a pharmaceutical salesman for 22 years, ending in 2001. He further reported that he used to volunteer at the Salvation Army 7 years prior. Symptoms of depressed mood, anxiety, suspiciousness, mild memory loss, flattened affect, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships were noted. The Veteran denied hallucinations and suicidal or homicidal ideation. In a July 2019 statement, [REDACTED], the Veteran's daughter, stated that the Veteran "as major anger issues" that have increased to the point where he "gets mad over petty things" and "is negative 90% of the time" and has been so for at least 8 years. She stated that since she was young, he does not interact well with others and does not want anyone at his house, including family, noting that one time he "jumped the fence" to get away from visitors. She described him as "very unhinged" and "argumentative", stating that he "gets loud" and "has no filter anymore." She stated that he neglects bathing and shaving. In a July 2019 statement, [REDACTED], the Veteran's wife, stated that over the years she has thought about leaving the Veteran "because he is so closed off and isolated". She stated that he has anxiety and "stresses out over everything". She then stated that he never goes to social functions and that for "[t]he last 18 years, he has basically sat in the room in the dark day and night." She stated that he only showers once per week, sleeps during the day and wakes up screaming, yelling, and fighting due to nightmares. She further stated that he no longer helps around the house, has panic attacks, is paranoid and that she has to go on vacations because she cannot handle him refusing to interact with others. She stated that he becomes easily frustrated and does not handle conflict well, elaborating that though he no longer throws things he still gets angry and yells. The Veteran testified at the December 2020 Board hearing that he has more suicidal thoughts than he used to and asserted that his medication "only sedates [him]". He stated that he gets easily agitated and that a lot of things irritate him. He stated that he has no interest in going out and only does so once or twice a month, and even then, it is usually just for grocery shopping. He stated that he has anxiety and gets panic attacks during the day, 4 to 5 times per week. Throughout the relevant appeal period, the evidence of record shows that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating irritability, angry outbursts, passive suicidal ideation, near constant panic and depression, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships). He also had symptoms that are not listed with a specific rating, such as social isolation. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records. 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. Resolving all reasonable doubt in the Veteran's favor, a disability rating of 70 percent, and no higher, at all times relevant to this appeal is warranted. The benefit-of-the-doubt doctrine is applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See, Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a TDIU. The Veteran asserts that his service-connected disabilities render him unemployable. A TDIU may be assigned, where the schedular rating is less than total, 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 provided that, if there is one such disability, it must be rated 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The 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. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110 (b) (2) (2012); 38 C.F.R. § 3.400 (o) (2) (2017). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See, Hurd v. West, 13 Vet. App. 449 (2000). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the issue of TDIU was raised in a January 2013 VA PTSD examination report. As of this decision, the Veteran's PTSD has been rated at 70 percent effective December 21, 2011, the date of his claim for increase for PTSD. As such, he has met the threshold requirement to TDIU as of that date. Turning to the next step, TDIU may be assigned where the schedular rating is less than total, when the disabled Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also, Van Hoose, 4 Vet. App. at 363. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See, Gary v. Brown, 7 Vet. App. 229 (1994). With the threshold requirement satisfied, the Board finds that the Veteran has shown that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities as of December 21, 2011. The evidence of record shows that the Veteran has 4 years of college and worked in pharmaceutical sales, last working in 2001. In the December 2018 VA Form 21-8940, the Veteran stated that he became too depressed to work a sales territory as there were times he could not get out of bed whereas other times he would go on sales calls but would just sit in his car all day. He then stated that due to this he was made to resign. As noted above, the January 2013 VA PTSD examiner stated that the Veteran's PTSD symptoms have created moderate levels of impairment in his social and occupational functioning and that he would not be reliable in an employment setting. In the March 23, 2015 private psychological assessment from Dr. H. Henderson-Galligan, it was noted that Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD, noting his "lack of motivation to get out of bed and go to work" and difficulty with concentration. Finally, in her July 2019 statement, the Veteran's wife refuses to interact with others, becomes easily frustrated and does not handle conflict well. Based on the above, the Board finds that throughout the relevant period of appeal, the Veteran's service-connected PTSD has rendered him unable to obtain or maintain significantly gainful employment and that a grant of TDIU is warranted. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for left ankle achilles tendonitis is remanded. The Veteran was afforded a VA ankle conditions examination in January 2019. A diagnosis of left ankle Achille's tendonitis was noted. The Veteran reported an increase in pain in the back of his left heel in the prior 18 months. He stated that the pain is to the point where he can no longer use the riding lawn mower due to positional pain. He additionally reported progressively increasing instability and stated he has fallen due to the left ankle giving out in the past year. He reported having more pain when rising from sitting. He described his ankle pain as throbbing and achy in the back of the heel, occurring on a daily basis and triggered by weight bearing for more than 5 to 10 minutes, ambulation or rising from a seated position to standing. Rest and ibuprofen were noted as relieving factors. Occasional swelling and tingling in the back of the heel were noted. He reported flare-ups 2 to 3 times per month of increased pain and swelling that last 2 to 7 days before returning to baseline. These flare-ups were noted as being triggered by walking too far, walking uphill, or climbing stairs. He further reported having to stop walking after 50 feet to rest and having to use a cane due to the pain, as well as being unable to stand longer than 10 minutes before needing to sit down. He also stated that he is unable to fully bend or flex his left ankle due to pain. Upon examination, initial range of motion was measured as 10 degrees dorsiflexion and 20 degrees plantar flexion. Pain was noted as contributing to a functional loss with both measurements. Localized tenderness to palpation of the left Achille's tendon was noted. Pain on weight bearing was noted. No additional loss of function or range of motion was noted after repetitive use testing. The examiner would not speculate regarding the effects of repeated use over time or during flare-ups. Left ankle instability was suspected. While the record contains a contemporaneous VA examination regarding the Veteran's left ankle Achille's tendonitis, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion regarding flare-ups could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Further, the Veteran testified at the December 2020 Board hearing that his left ankle is "substantially worse" and that sometimes when he is walking, he has a "misstep". The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle Achille's tendonitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brian P. Keeley 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.