Citation Nr: 21032057 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 13-36 028 DATE: May 25, 2021 ORDER Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD has been manifested by impairment with deficiencies in most areas; total occupational and social impairment has not been shown. 2. The Veteran failed to return a VA Form 21-8940 (Application for Increased Compensation Based on Individual Unemployability) and he has not met his burden of establishing that he is unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1970 to July 1972, with service in the Republic of Vietnam. His awards and decorations include the Combat Action Medal, the Vietnam Service Medal with one Star, and the Vietnam Cross of Gallantry. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) (herein, Agency of Original Jurisdiction (AOJ)). This appeal was previously before the Board in July 2020. At that time, the appeal included the issues of entitlement to service connection for a respiratory disorder and hypertension. The Board remanded the appeal in its entirety for further evidentiary development. Upon remand, the AOJ granted service connection for asbestosis and hypertension. See February 2021 Rating Decision. As this decision represents a full grant of the benefits sought, the issues of entitlement to service connection for a respiratory disorder and hypertension are no longer before the Board for appellate adjudication. With regard to the issues of entitlement to a rating higher than 70 percent for PTSD and to TDIU, the Board finds that there has been substantial compliance with the remand directives from July 2020 regarding these claims. See Stegall v. West, 11 Vet. Appl 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). PTSD The Veteran's PTSD is currently rated as 70 percent disabling under Diagnostic Code 9411. All psychiatric disorders are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. Under the general rating formula, a 70 percent evaluation is warranted 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 situations (including work or a work-like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and "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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Further, "§ 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." Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted. Turning to the facts of the present case, the Veteran filed a service connection claim for PTSD in November 2010. In a contemporaneous private psychological evaluation, the Veteran reported experiencing recurrent nightmares of his combat experiences, along with sleep disturbances and night sweats. Socially, the Veteran avoided crowds and experienced feelings of detachment and estrangement from others. In addition to irritability and anger, the Veteran endorsed concentration issues and hypervigilance. He described experiencing "nervous mood" most of the day nearly every day along with fatigue and loss of energy. He had anxiety attacks approximately two to three times per week, lasting ten to 15 minutes at a time. His anxiety symptoms included heart palpitations and chest pain along with sweating, trembling, and shaking. Upon mental status examination, the Veteran's impulse control fell below normal limits and his thought content was consistent with the presence of passive suicidal and homicidal ideation. The Veteran remained oriented on all spheres and his memory was within normal limits. At a January 2011 private consultation and examination, the Veteran reported experiencing sleep disturbance, anxiety, anger, isolation, and memory loss, along with hypervigilance, depression, and rage. At the November 2011 VA examination, the Veteran reported continued nightmares, anger, and irritability. Periodically, he experienced depressed mood, anxiety, disturbances in motivation and mood, difficulty adapting to stressful circumstances and difficulty establishing and maintaining relationships. Ultimately, the examiner found that the Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, the Veteran was generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Based on the above evidence, the AOJ has granted service connection for PTSD and assigned a 70 percent initial disability rating. See November 2013 Rating Decision. At the October 2017 VA examination, the Veteran's symptoms included occasional depressed mood, sleep disturbance, nightmares, and insomnia. He was often hypervigilant and emotionally detached; he also avoided stimuli associated with his time in combat. He endorsed decreased concentration, occasional verbal outbursts, anger, and irritability, along with fatigue and anhedonia. Socially, the Veteran maintained a "good" relationship with his wife of 33 years. He had one friend that visited him weekly but no other friendships. He was not a member of any community organizations or clubs. His activities included yardwork and watching TV. Upon mental status examination, there was no evidence of mania, panic, or psychosis. The Veteran was oriented on all facets and there was no evidence of suicidal or homicidal ideation. The Veteran's memory, insight, judgment, and thought processes were all intact. Ultimately, the examiner found that the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity. Most recently, the Veteran was afforded a VA examination in January 2021 to determine the severity of his PTSD. At that time, the Veteran's symptoms included anxiety, chronic sleep impairment, and disturbances of motivation and mood. While he experienced restlessness in his sleep, he stated that his nightmares have lessened over time. He remained happily married to his wife of 36 years and described having supportive family. His hobbies included working on his vehicle, reading magazines, watching television, and keeping up on civic events. Upon mental status examination, the Veteran was alert and oriented on all facets. He denied past and present suicidal and homicidal ideation. Also of record are the Veteran's medical treatment records. Throughout the appeal period, the Veteran has reported nightmares, feelings of detachment, and hypervigilance. He denied experiencing suicidal ideation. Upon consideration of the record, a rating higher than 70 percent is not warranted for the Veteran's PTSD, as his disability picture does not meet or more nearly approximate total occupational and social impairment. Specifically, the evidence of record does not show that the Veteran has total social and occupational impairment. The clinical evidence of record does not establish, and the Veteran does not allege, either the presence of (or the functional equivalent thereto) gross impairment in thought processes or communication, delusions, hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living or disorientation to time or place. Although he does not have many close friends, the Veteran maintains a good relationship with his family and at times, he tries to keep busy with different activities. The Board acknowledges that the Veteran endorses depression, anxiety, chronic sleep impairment, and difficulty adapting to stressful circumstances. However, the Board finds that his symptoms adequately contemplated within the currently assigned 70 percent rating. Moreover, there is no evidence of delusions, hallucinations, or psychoses. Despite the presence of his symptoms, the Veteran remains capable of communicating appropriately and effectively with his examiners, with intact thought processes. The Board acknowledges that the Veteran endorsed passive suicidal and homicidal ideations early in the appeal period. However, when considering the Veteran's entire disability picture, the Board finds that the frequency, duration, and severity of the ideations do not more nearly approximate that which is contemplated by the 100 percent disability rating. Notably, more recent evaluations reflect the absence of such ideations. As such, the homicidal and suicidal ideations early in the appeal period are not sufficient to support a higher 100 percent disability rating. See Vazquez-Claudio, 713 F.3d at 116-17. In conclusion, the Veteran does not manifest either the symptomatology or the impairment required for a 100 percent rating for the service-connected PTSD at any time during the appeal period. In so concluding, the Board finds that the Veteran's report of symptomatology to be credible, and the Board has resolved any inconsistencies in his favor. However, when it comes to the overall impact of his occupational and social functioning, the Board places greater probative weight to the lay and medical evidence, including expert examiner opinions as to occupational and social impact, which reflects that the overall frequency, severity, and duration of the Veteran's symptoms does not meet or more nearly approximate the criteria for a 100 percent schedular rating. As such, an initial rating in excess of 70 percent is not warranted. The claim is denied. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extra-schedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Here, the Veteran's service-connected disabilities are as follows: renal disease, rated 80 percent disabling; PTSD, rated 70 percent disabling; asbestosis with bronchial asthma, rated 60 percent disabling; peripheral vascular disease of the bilateral lower extremities, rated 40 percent disabling; diabetic bladder dysfunction, rated 20 percent disabling, and tinnitus, diabetes, and neuropathy of the bilateral lower extremities, each rated 10 percent disabling. He is in receipt of a combined 80 percent evaluation from November 17, 2010, and a 100 percent rating from January 7, 2020. 38 C.F.R. § 4.16(a). Accordingly, he meets the schedular criteria for a TDIU from November 17, 2010, to January 7, 2020. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). 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). 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 v. Brown, 4 Vet. App. 361, 363 (1993). The term substantially gainful employment refers to, at the minimum, the ability to earn a living wage, and is not engaged in substantially gainful employment if annual income below the poverty threshold for one person). See Bowling v. Principi, 15 Vet. App. 1, 7 (2001). In Faust v. West, 13 Vet. App. 342, 356 (2000), the Court held actual employability is shown as a matter of law by substantially gainful employment. This means employment that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works. Id. There is an exception to this rule for sheltered employment. Cantrell v. Shulkin, 28 Vet. App. 382 (2017). This matter was previously before the Board in July 2015, at which time the Board remanded the issue in order to provide the AOJ, with the help of the Veteran, the opportunity to further develop the claim for a TDIU. Specifically, the Board instructed the AOJ to obtain the Veteran's SSA records relevant to the claim. Upon remand, the AOJ obtained the Veteran's SSA records; the AOJ also requested the Veteran complete and submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. A review of the claims file reveals the Form was included in a December 2018 correspondence letter informing the Veteran of the action required in developing his claim. The Veteran failed to return the Form to VA. The appeal came back before the Board in July 2020, at which time the Board remanded the claim for entitlement to TDIU for further evidentiary development. The Board acknowledged the January 2018 request that the Veteran complete and return a VA Form 21-8940. Upon consideration of the evidence, the Board remanded the claim to give the Veteran another opportunity to complete the required form. The Board reminded the Veteran that failure to cooperate could result in a negative determination pursuant to Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Upon remand, in July 2020, the AOJ sent the Veteran additional correspondence along with a blank VA Form 21-8940. To date, the Veteran has not returned the Form to the VA. As such, the Board finds that the AOJ substantially complied with the July 2020 remand directives. Stegall, 11 Vet. App. at 268. The record establishes that the Veteran worked as a heavy equipment operator until 2012, at which time he states he retired. The Veteran filed for SSA benefits in October 2012 based on his lung nodules, high blood pressure, chronic leg pain, hip pain, right knee pain, and right ankle pain. At that time, the Veteran indicated that he previously worked as a heavy equipment operator and a sales associate. In a contemporaneous physical functional capacity assessment, the physician noted that the Veteran's disabilities caused some impairment, but such impairment did not prevent the Veteran from performing past relevant work. The examiner also noted that the Veteran was able to stand, walk, and sit for a six to eight-hour workday with normal breaks. During the appeal period, the Veteran was afforded VA examinations to assess the functional impairment of his service-connected disabilities. The Veteran described difficulty with standing and walking for prolonged periods of time. At the October 2017 VA examination, the Veteran indicated the he was laid off from his full time job as a heavy equipment operator; however, he was actively looking to secure subsequent employment. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. After a review of the record, the Board finds that the Veteran has not met the burden of establishing that he is unable to gain or maintain substantially gainful employment as a result of his service-connected disabilities. While the Veteran reports that he stopped working in 2012, he also stated that he was still looking for gainful employment after he stopped working in 2012. It is unclear from the record whether the Veteran was able to satisfactorily obtain employment, and if not, whether his service-connected disabilities prevented him from securing and/or maintaining gainful employment. In this case, potentially relevant evidence such as the Veteran's employment history and subsequent training and education (both referenced tangentially in his SSA reports and VA treatment records), is not available to the Board due to the Veteran's own inaction. As noted by the United States Court of Appeals for Veterans Claims, the duty to assist is not a one-way street or a blind alley; a claimant cannot remain passive when he has relevant information solely within his control. See Wamhoff v. Brown, 8 Vet. App. 517 (1996). Without the Veteran's provision of additional information, the Board is unable to determine whether he has met the criteria for entitlement to a TDIU, which requires more than a generalized statement of unemployment for some period of time. The Board is not denying the claim for mere failure to file a form. Rather, there was additional information that was needed in order to fully adjudicate the claim. The Board cannot assign a TDIU without specific information such as the month and year the Veteran last worked substantially gainful employment and his training and education. This information is not available within the claims folder, and is solely within the Veteran's control. Without this information, entitlement to a TDIU must be denied. 38 C.F.R. § 3.158. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.