Citation Nr: 21039939 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 19-25 904 DATE: July 1, 2021 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Total occupational and social impairment is not demonstrated at any time. 2. The service-connected disabilities are not shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for assignment of a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to June 1969. These matters came before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by the RO. In March 2021, the Board remanded the appeal for further development. Specifically, the Board instructed the RO to contact the Veteran and request employment information. The RO contacted the Veteran in March 2021 and has received no response from the Veteran. Accordingly, the requested development has been completed and the case has been returned to the Board for appellate adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to a rating in excess of 70 percent PTSD Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall 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. See 38 C.F.R. § 4.7. The rating for the Veteran's PTSD has been assigned pursuant to Diagnostic Code 9411 under a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under the formula, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The examiner's assessment of the severity of a condition is not dispositive of the evaluation issue; rather, the examiner's assessment must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). During a March 2018 VA PTSD examination, the Veteran denied any childhood trauma and reported that he was raised by his mother and grandparents. During his period of service he was married. After service, his marriage ended in divorce. He remarried and had been married for 45 years. He reported that he worked out of town and having that distant work location was the only reason he has stayed married. He stated that he has friends. He worked in painting and construction and had done so since his discharge from service. He had worked for the same company for the past 29 years. Approximately three years earlier, he began drinking again to help with his sleep problems. However, his primary care physician had prescribed him sleeping medication and he quit drinking, apparently for a second time. Symptoms of his PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. He was casually dressed and was cooperative and engaged throughout the examination. His eye contact, psychomotor activity, and speech were within normal limits. He was fully oriented, and his mood and affect were congruent and dysthymic. The Veteran's PTSD produced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. During a December 2020 VA PTSD examination, the Veteran described emotional lability and became tearful at relatively benign triggers. He reported that he would become emotional and then leave the room and this behavior had put a strain on his marriage. Socially, he knew people but reported that family relationships were the most significant to him. He was close with his grandchildren. He remained employed with a construction company and told the examiner that his supervisor was understanding and allowed the Veteran to work alone. He had emotional reactions (mainly tearfulness) at work as well and would leave. He reported that he had the ability to walk off or leave a job site because he was a supervisor and did not work directly in construction. Rather, he had an office. He hypothesized that he would not have a job if he was not a supervisor because he would not have the authority to just leave a job site. Symptoms of his PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and suicidal ideation. He was casually dressed, and his mood appeared depressed and his affect was congruent. His eye contact was adequate, and he appeared fully oriented in all spheres. This examination indicates that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas. The Veteran has demonstrated manifestations and effects such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships contemplated by the 70 percent rating. His PTSD was productive of occupational and social impairment with deficiencies in most areas. The preponderance of the evidence is against the assignment of a rating higher than the already assigned 70 percent rating. As the U.S. Court of Appeals for the Federal Circuit explained, evaluation under § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed in DC 9411 are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." In the context of determining whether a higher 100 percent disability evaluation is warranted, the DC requires not only the presence of certain symptoms but also that those symptoms have caused total occupational and social impairmenti.e., "the regulation... requires an ultimate factual conclusion as to the veteran's level of impairment ..." Vazquez-Claudio, 713 F.3d at 11718; see 38 C.F.R. § 4.130, DC 9411. The preponderance of the evidence is against finding that the Veteran's PTSD caused total occupational and social impairment. At no time has the Veteran demonstrated gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, inability to perform activities of daily living, or disorientation. Though the December 2020 VA PTSD examination report reflects that the Veteran had suicidal ideation, he has not exhibited persistent danger of hurting himself or others. For these reasons, the preponderance of the evidence is against assignment of a rating in excess of 70 percent for the PTSD. The Veteran has not raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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 Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2016). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2016). For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2016). The sole fact that a Veteran happens to be unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16 (a). The fact that a Veteran is unemployed is generally insufficient to demonstrate that he is considered "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary in order to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service-connection is currently in effect for PTSD (70 percent disabling) and diabetes mellitus type II (20 percent disabling); the combined rating for these service-connected disabilities is 80 percent. The February 2018 VA diabetes mellitus examination reflects that the Veteran's diabetes mellitus had no impact on his ability to work. The March 2018 VA PTSD examination reflects that the Veteran's PTSD was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. He worked in painting and construction and had been employed at the same company for the past 29 years. The December 2020 VA PTSD examination reflects that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas. He remained employed with a construction company and his supervisor was understanding and allowed the Veteran to work alone. He reported that he had the ability to walk off or leave a job site because he was a supervisor and did not work directly in construction. He hypothesized that he would not have a job if he was not a supervisor because he would not have the authority to just leave a job site. In the December 2020 VA individual unemployability statement, the psychologist indicated that the Veteran had difficulty attending to or is easily distracted from the task at hand; had difficulty maintaining concentration and focus on work over a period of time and tends to skip from one task to another without completing the prior task; had intrusive thoughts which interfere with the ability to stay focused on the task at hand; had significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict); had significant difficulty remembering instructions and details of work assignments; had significant difficulty functioning around other people, had difficulty functioning as a team member and felt uncomfortable around others; had disrupted sleep and was usually fatigued at work making concentration and focus on work assignments difficult; and, was so depressed that he had difficulty sustaining energy and motivation to complete assignments at work. The psychologist indicated that the Veteran's work assignments must be altered due to his PTSD and the Veteran reported that his supervisor was accommodating and allowed him to primarily work alone. In the March 2021 remand, the Board instructed the RO to contact the Veteran and request employment information. The RO requested the information in March 2021, but the Veteran failed to provide any requested employment information. Given the Veteran's inability to cooperate with VA to obtain relevant employment information that might substantiate his claim, further efforts to assist the Veteran in this regard will not be expended. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The preponderance of the evidence of record weighs against finding that the Veteran's service-connected PTSD and diabetes mellitus preclude him from obtaining or engaging in any form of substantially gainful employment. In reaching this conclusion, the Board has considered the Veteran's lay assertions that if not for his supervisor's accommodations, he would not have a job. The Veteran is competent to report his observations as to his work arrangements. However, as noted the March 2018 VA examination showed that he worked in painting and construction and had been employed at the same company for the past 29 years. In addition, the December 2020 VA examination report reflects that he remained employed with that construction company. Though the December 2020 VA examination report and individual unemployability statement document the significant effects his PTSD has on his employment and that he is provided accommodations in his employment, the Board reiterates the Veteran is employed, has been employed with the same company for approximately the past 32 years, and has achieved success to the point that he is a supervisor and has the ability to leave a job site when he experiences emotional reactions to PTSD triggers. Finally, the February 2018 VA diabetes mellitus examination reflects that the Veteran's diabetes mellitus had no impact on his ability to work. The evidence of record does not indicate that the Veteran was incapable of performing the physical and mental acts required by employment due to his service-connected PTSD and diabetes mellitus disabilities. Thus, the evidence does not show that the Veteran is unemployable due solely to his service-connected disabilities. On the contrary, the evidence continues to show that he is gainfully employed and has been so for the past 32 years with the same company. The claim is therefore denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson 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.