Citation Nr: 21040056 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-46 394 DATE: July 2, 2021 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder from December 7, 2009 to March 9, 2012 and a rating in excess of 50 percent from March 9, 2012 to June 25, 2019 is denied. Entitlement to a rating in excess of 10 percent for status post bullet wound of chest with myofascial pain and right anterior chest defect traumatic prior to July 8, 2019 is denied. Entitlement to total disability due to individual unemployability prior to June 25, 2019 is denied. FINDINGS OF FACT 1. For the period from December 7, 2009 to March 9, 2012 the Veteran's posttraumatic stress disorder was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the period from March 9, 2012 to June 25, 2019, the Veteran's posttraumatic stress disorder was manifested by no more than occupational and social impairment with reduced reliability and productivity. 3. For the period prior to July 8, 2019, the Veteran's status post bullet wound of chest with myofascial pain, right anterior chest defect traumatic was manifested by no more than moderate impairment. 4. For the period prior to June 25, 2019, the preponderance of the evidence is against finding that the Veteran's service connected disabilities preclude him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for posttraumatic stress disorder from December 7, 2009 to March 9, 2012 and a rating in excess of 50 percent from March 9, 2012 to June 25, 2019 have not 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 entitlement to a rating in excess of 10 percent for status post bullet wound of chest with pain, right anterior chest defect traumatic prior to July 8, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.73, Diagnostic Code 5321. 3. The criteria for service connection for TDIU prior to June 25, 2019 have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to September 1979. These matters before the Board of Veterans' Appeals (Board) on appeal from April 2010 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2020 statement, the Veteran's representative indicated that he wished to withdraw appeals for a rating in excess of 70 percent from June 25, 2019 for PTSD and a rating in excess of 20 percent from July 8, 2019 for gunshot wound residuals as the Veteran had been granted TDIU from June 25, 2019. These matters were previously remanded in October 2018 for further development. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Upon review, the Board finds that the remand directives have been complied with. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles: Posttraumatic Stress Disorder The Veteran is service connected for posttraumatic stress disorder with a rating of 30 percent beginning December 7, 2009 through March 9, 2012, a rating of 50 percent beginning March 9, 2012 to June 25, 2019 and a rating of 70 percent beginning March 25, 2019 and thereafter. Posttraumatic stress disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, under the General Rating Formula for Mental Disorder. The criteria for a 30 percent rating are occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), or chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The criteria for a 50 percent rating, are 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; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are 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 the inability to establish and maintain effective relationships. The criteria for a 100 percent rating are 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. The Board notes that the Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Id. Rating Principles: Chest wound with myofascial pain and chest defect. The Veteran is currently service connected for status post bullet wound of the chest with myofascial pain syndrome and right anterior chest defect with a rating of 10 percent from September 1979 to July 8, 2019 under diagnostic code 5321-6843 and a rating of 20 percent beginning July 8, 2019 and thereafter under diagnostic code 6843-5321. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Diagnostic code 6843 is rated based on the general rating formula for restrictive lung disease. Under the general rating formula for restrictive lung disease, a rating of 10 percent is warranted for FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent or; DLCO (SB) 66 to 80 percent predicted. A rating of 30 percent is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted. A rating of 60 percent is warranted for FEV-1 of 40 to 55 percent predicted, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A rating of 100 percent is warranted for FVC less than 50-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. Under diagnostic code 5321 a noncompensable rating is warranted for slight impairment of the thoracic muscle group; a rating 10 percent is warranted for moderate impairment of the thoracic muscle group and a rating of 20 percent is warranted for severe or moderately severe impairment of the thoracic muscle group. Pursuant to 38 C.F.R. § 4.56 Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe as follows: (1) Slight disability of muscles shall include simple wound of muscle without debridement or infection with service department record of superficial wound with brief treatment and return to duty. Healing with good functional results and no cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. Objectively, slight disability is manifested by minimal scar with no evidence of fascial defect, atrophy, or impaired tonus and no impairment of function or metallic fragments retained in muscle tissue. (2) Moderate disability of muscles includes and injury with through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Service department record or other evidence of in-service treatment for the wound, record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, a moderate disability of the muscles is manifested by entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. (3) Moderately severe disability of muscles(i) Type of injury is defined as a muscle injury with evidence of through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Moderately severe muscle disabilities are evidenced by service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability and, if present, evidence of inability to keep up with work requirements. Objectively, moderately severe muscle injuries are manifested by entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. (4) Severe disability of muscles are defined as through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Severe muscle disabilities are evidenced by service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objectively, severe muscle disabilities are manifested by ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle and induration or atrophy of an entire muscle following simple piercing by a projectile. 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder from December 7, 2009 to March 9, 2012 and a rating in excess of 50 percent from March 9, 2012 to June 25, 2019. Procedural History The Veteran's posttraumatic stress disorder (PTSD) was initially service connected in a November 2001 rating decision, with a rating of 10 percent, effective March 16, 2001. In December 2009, the Veteran filed a claim for an increased rating for PTSD, noting that his PTSD was getting worse and limited his ability to work. Following an April 2010 rating decision that continued a 10 percent rating for the Veteran's PTSD, the Veteran filed a notice of disagreement in October 2010. A November 2011 rating decision increased the Veteran's rating for PTSD to 30 percent, effective December 7, 2009. Subsequently, an October 2015 decision by a Decision Review Officer (DRO) increased the Veteran's rating for PTSD to 50 percent, effective March 9, 2012. Although the April 2010 rating decision and October 2015 DRO decision increased the Veteran's rating for PTSD, because the rating decisions did not grant a 100 percent disability rating, these ratings do not constitute a full grant of the benefit on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (in all claims for increased rating, the Veteran is presumed to be seeking the maximum possible evaluation). Therefore, the Veteran's claim remained pending until the issuance of a statement of the case. 38 C.F.R. § 19.26 (Following a notice of disagreement, the agency of original jurisdiction (AOJ) is required to prepare a statement of the case unless the disagreement is resolved by a grant of the benefit(s) sought on appeal, or the NOD is withdrawn by the claimant.). A statement of the case was issued in October 2015 denying entitlement to a rating in excess of 30 percent prior to March 9, 2012 and entitlement to a rating in excess of 50 percent beginning March 9, 2012 and thereafter. The Veteran perfected his appeal with a timely filed Form 9 in November 2015. Subsequently, a June 2020 rating decision increased the Veteran's rating to 70 percent for PTSD, effective June 25, 2019. In an October 2020 brief, the Veteran's representative asserted that the Veteran continues to disagree with the denial of a rating in excess of 50 percent for PTSD prior to June 25, 2019, but does not wish to appeal the denial of a rating in excess of 70 percent beginning June 25, 2019 and thereafter for PTSD. As such, the issue before the Board is entitlement to a rating in excess of 30 percent for the period from December 7, 2009 to March 9, 2012 and entitlement to a rating in excess of 50 percent for the period from March 9, 2012 to June 25, 2019. Analysis Entitlement to a rating in excess of 30 percent for the period from December 7, 2009 to March 9, 2012 for PTSD. Notwithstanding the Veteran's contentions of entitlement to a rating in excess of 30 percent for the period from December 7, 2009 to March 9, 2012, the preponderance of the evidence of record, as discussed below, establishes that during the period at issue, the Veteran's PTSD was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Entitlement to a rating in excess of 30 percent is not warranted. July 2009 VA treatment records note that the Veteran endorsed symptoms of some auditory hallucinations but denied suicidal and homicidal ideation. Further the Veteran was noted to have a neutral mood, appropriate affect, normal recent and remote memory, normal thought process and unremarkable thought content. The Veteran reported a disturbed sleep pattern, depressed mood and symptoms of paranoia, but maintained a good appetite. The Veteran's depression screening was positive with the Veteran reporting little interest or pleasure in doing things and feeling down, depressed, or hopeless for several days. The Veteran's PTSD screening noted symptoms of nightmares, trying hard not to think about or avoiding situations, constantly being on guard and feelings of numbness or detachment from others, activities, and his surroundings. December 2009 VA treatment records note that the Veteran presented with a chief complaint of sleep disturbance and feeling anxious at work. However, the Veteran was noted to be involved in social activities and participating in recreational activities. A mental status examination noted no abnormal behavior, appropriate affect, anxious mood, and coherent thought process. The Veteran had no hallucinations or delusions, maintained appropriate thought content but endorsed some sleep disturbance. January 2010 VA treatment records note that the Veteran reported that over a period of two week he had several days of feeling down, depressed or hopeless, trouble falling or staying asleep, feeling tired or having little energy, poor appetite, feeling bad about himself and trouble concentrating. The Veteran also reported a fear of losing his job, which resulted in symptoms of depressions and sleep disturbance. The Veteran reported that his sleep disturbance was getting worse. However, he denied having suicidal ideations and reported that he had never made a suicide attempt. In March 2010 the Veteran continued to report a history of sleep issues. He reported having problems at work with his boss and coworkers and reported having an anxious and depressed mood. Nonetheless, the Veteran continued to deny hopelessness, suicidal plan or intent, and any past suicide attempts. The Veteran was afforded a VA examination for his PTSD in March 2010. Subjectively, the Veteran reported limited periods of depression, related to job stresses. The Veteran was characterized as mildly hypervigilant and reported that on at least two occasions he believed strangers were going to attack him in public places. The Veteran reported sleep sometimes disturbed by dreams and indicated some trouble expressing his anger when he feels physically intimated. Socially, the Veteran reported that he occasionally over-reacts to situations he perceives as threatening and reported limiting his interactions to family and a few friends. He reported feeling alienated from some of his coworkers. The mental status examination noted the Veteran as mildly anxious with constricted but congruent affect. The Veteran denied having suicidal or homicidal ideation but reported some passive suicidal ideation in the past. The Veteran's speech and thought process were unimpaired and he demonstrated linear logical thinking. The Veteran denied hallucinations or delusions and his long and short-term recall remained grossly intact. Attention and concertation were adequate, and the Veteran did not report panic attacks, obsessions or phobias that interfered with normal functioning. The Veteran reported disturbed sleep patterns resulting in occasional fatigue during the day. Judgment and insight were noted to be present. The examiner noted that the Veteran reported mild symptoms, recurring on at least a weekly basis since July 2009. The examiner concluded that the Veteran's PTSD decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. A June 2010 VA mental status examination during an individual therapy session noted anxious mood, normal memory, normal attention and concentration, normal thought process, unremarkable thought content, no suicidal or homicidal ideation, good judgment, good insight, and good impulse control. The Veteran underwent a private psychodiagnostics evaluation in July 2010. The Veteran reported that his PTSD symptoms had been bothering him and resulted in him leaving his employment. The Veteran reported current symptoms of feeling anxious and depressed, as well as being suspicious of people and having sleep disturbance. The Veteran reported taking his fear and anger out on his family. Notwithstanding the Veteran's subjective complaints, the physician observed that during the session the Veteran was somewhat anxious but maintained appropriate affect, logical, coherent, and goal directed speech, and had no signs of hallucinations, delusions, or significant thought disorder. Reasoning and judgment seemed intact. The Veteran remained oriented in time, place and person and did not show suicidal or homicidal ideation. It was recommended that the Veteran participate in psychotherapy. August 2010 private treatment records continued to note the Veteran as anxious and depressed with spontaneous fear of being attacked or injured. The Veteran reported having a good week and expressed that he was contemplating a job as a truck driver that requires a license. At a subsequent private treatment session approximately three weeks later in August 2010, the Veteran continued to report being anxious and depressed with spontaneous fear of being attacked or injured. September 2010 private treatment records continue to note the Veteran as anxious and depressed with spontaneous fear of being attacked. The Veteran reported searching for a job and working at home fixing things, the Veteran also reported attending AA meetings. During his October and November 2010 private treatment, the Veteran's symptoms remained unchanged. Notably, during his November 2010 private treatment session the Veteran reported experiencing some fear when people are walking behind him. He also reported some recurring persecution dreams related to his traumatic fears. The Veteran reported failing his truck driving test because he froze when asked by his tester to do certain things; the Veteran felt he was being closely observed which caused some irrational panic. December 2010 private treatment records note that the Veteran had a relaxed month but continued to feel anxious and depressed as well as having fears of being attacked. The Veteran reviewed positive functioning of his son and expressed good feeling about repair work on his own house while not working. The Veteran reported that visiting his family for the holidays was cheering and affected him positively. During January 2011 VA treatment the Veteran continued to deny suicidal plan or intent and continued to demonstrate depressed mood, but normal memory and thought process. The Veteran was noted to have some obsessive thought content, but maintained fair judgment, insight, and impulse control. April 2011 VA treatment records note that the Veteran continued to demonstrate restless sleep but also denied suicidal ideation. The Veteran had another private psychodiagnostics evaluation in November 2011. He reported symptoms of poor sleep and renewed nightmares. The Veteran reported feeling anxious and depressed since he stopped working. In session the Veteran was somewhat anxious but maintained appropriate affect and logical, coherent, goal directed speech. There were no signs of hallucinations, delusions or significant thought disorder and reasoning and judgment appeared intact. The Veteran was well oriented to time, place and person and did not show current suicidal or homicidal ideation. A January 2012 mental status examination noted the Veteran as having no abnormal behavior, appropriate affect, anxious mood, coherent thought process, no hallucinations or delusions, appropriate thought content but sleep disturbance and flashbacks. The Veteran reported having some symptoms of anxiety when he is around people. January 2012 private treatment records continue to note the Veteran as anxious and depressed with fears of being attacked and bad dreams. The Veteran reported having a panic attack when visiting a friend which triggered flashbacks. Notably, during an April 2012 VA examination for PTSD, the Veteran reported that he retired from his technician job with Verizon in June 2010 after 29 years. He attributed his decision to retire in large part to longstanding conflict with a co-worker who teased him frequently. For the period from December 7, 2009 to March 9, 2012 the preponderance of the evidence of record does not establish entitlement to a rating in excess of 30 percent. The Veteran's symptoms do not warrant a rating of 50 percent which requires occupational and social impairment with reduced reliability and productivity, nor do his symptoms warrant a rating of 70 percent based on occupational and social impairment with deficiencies in most areas. Here, although the Veteran noted some symptoms of anxiety, depressed mood, sleep disturbance and nightmares he was also frequently noted to have normal behaviour, thought content and thought process. The Veteran reported a passive suicidal ideation in the past. However, during the period at issue the Veteran consistently denied suicidal or homicidal ideation. Further, the Veteran was frequently noted to have fair judgment, fair insight and normal memory. The Veteran reported some difficulties interacting with supervisors and coworkers, paranoia around strangers and freezing and panicking during his truck driver examination because he felt he was being monitored closely. He also reported leaving his job of 29 years, largely due to poor interactions with a co-worker. However, the Veteran is married and lives with his wife, he also noted being able to spend time with family over the holidays, and reported attending AA meetings, all of which require social interactions with others and suggests that the Veteran is able to maintain some social interaction. Thus, while the evidence shows that the Veteran's symptoms waxed and waned, the preponderance of the probative evidence of record shows that the Veteran has no more than occupational and social impairment with occasional decrease in work efficiency, as substantiated by the evidence showing that despite the Veteran's anxiety and paranoia he maintained intact memory, judgment, thought process and thought content, maintained the ability to fix things around the house and interact with family members but freezes when he feels he is being monitored too closely. In rendering an opinion, the Board has considered the Veteran's lay statements and the arguments of the Veteran's representative. Nonetheless, for the aforementioned reasons, the severity, intensity and persistence of the Veteran's symptoms more nearly approximates a rating of 30 percent for PTSD. Entitlement to a rating in excess of 30 percent for the period from December 9, 2009 to March 9, 2012 is denied. Entitlement to a rating in Excess of 50 percent from March 9, 2012 to June 25, 2019. March 2012 private treatment records note that the Veteran resumed therapy after a three-month break. The Veteran remained anxious and depressed with fears of being attacked and bad dreams of being persecuted. The Veteran reported a paranoid incident in the grocery store. The Veteran was afforded a VA examination for PTSD in April 2012. The Veteran was noted to have symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran reported that he retired from his technician job with Verizon in June 2010 after 29 years. He attributed his decision to retire in large part to longstanding conflict with a co-worker who teased him frequently. The Veteran reported that he considered applying for another job but was uncomfortable with the idea of working with strangers. The examiner indicated that the Veteran's on the job conflicts and discomfort applying for another job are likely related to the Veteran's PTSD. The examiner noted 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. The examiner noted that the Veteran's symptoms of irritability, distrust of strangers and preference for solitary activities were likely the result of the Veteran's PTSD. April 2012 VA treatment records note that the Veteran continue to report having an anxious mood when leaving the house, and when in public places. The Veteran continued to deny suicidal or homicidal ideation. September 2012 private treatment records noted the Veteran as anxious and depressed with fear of being attacked as well as bad dreams. The Veteran reported a better period since his last appointment noting that he was functional at home while his wife worked. He noted that while he still had bad dreams and felt anxious and depressed his symptoms were somewhat better. Similarly, at a follow up VA mental health appointment in October 2012 the Veteran reported his mood as stable but anxious. He reported getting four hours of sleep a night but also reported that his appetite patterns were good. He continued to deny suicidal or homicidal intent or ideation. February 2013 VA treatment records note the Veteran as having good mood, appropriate affect, normal memory, no suicidal or homicidal ideation, normal thought process, fair thought content and fair judgment, insight, and impulse control. Subjectively the Veteran reported his mood as stable but still anxious and endorsed ongoing nightmares. A May 2013 mental status examination continued to note good mood with appropriate affect, normal memory, normal thought process, fair thought content, no suicidal ideation, no homicidal ideation and fair judgment, insight, and impulse control. The Veteran underwent a private psychodiagnostics evaluation in May 2013. The Veteran reported paranoid feelings toward his mother in-law. He also reported some fear of flying and was noted to have ongoing symptoms of depression, anxiety ans suspiciousness. The Veteran reported that he did not sleep well and that he continues to take his fear and anger out on his family. Test results suggested moderate depressive symptoms and moderate anxiety symptoms. Following the examination, the examiner indicated that the Veteran was severely anxious and depressed with intrusive recollections and difficulty relaxing without induction and dissociation. An August 2013 mental status examination noted the Veteran as having good mood, appropriate affect, normal attention and concentration, normal memory, no suicidal or homicidal ideations and fair judgment, insight, and impulse control. Subjectively the Veteran reported that his residual PTSD symptoms had subsided. The Veteran underwent a fourth private psychodiagnostics evaluation in October 2013. The Veteran reported that he tried to work for a friend but could not keep it because he became paranoid. The Veteran reported ongoing bad dreams, lack of sleep and becoming suspicious. January 2014 and April 2014 VA treatment records note that the Veteran reported a good, stable mood and good appetite. The Veteran also denied suicidal or homicidal ideation but endorsed some symptoms of paranoia in public. Notably by August 2014 the Veteran reported that his paranoia had reduced, and he was experiencing less nightmares and less irritable mood. The Veteran reported that he sleeps approximately four hours per night. He also reported joining a gym and increasing his exercise. The Veteran continued to deny suicidal or homicidal ideation. By December 2014 the Veteran reported having no nightmares or paranoia. The Veteran's mental status examination remained unremarkable with good mood, normal memory, normal thought process, fair thought content, no suicidal or homicidal ideation and fair judgment, insight, and impulse control. In February 2015 the Veteran reported plans of going on vacation to Florida and requested assistance with taking his support dog with him. March 2015 VA treatment records note the Veteran as having no abnormal behavior, appropriate affect, anxious mood, coherent and goal drive thought proves, no hallucinations, some paranoia, appropriate thought content with no suicidal or homicidal ideations, some sleep disturbance and some flashbacks. Similar findings were noted in the Veteran's June 2015 VA treatment records. September 2015 VA mental status exam notes good mood, normal attention and concentration, normal memory, normal thought process, fair thought content, no suicidal or homicidal ideation, normal appetite and fair judgment, insight, and impulse control. Subjectively the Veteran reported poor sleep but good appetite and reported that he must keep his paranoid feelings in check. The Veteran underwent a private psychological evaluation in October 2015. The Veteran reported ongoing symptoms of suspiciousness. The examiner noted the Veteran as cooperative with appropriate affect and intact reasoning. There was no evidence of delusions or hallucinations. His speech was logical and coherent but not always goal directed. There was no evidence of suicidal or homicidal ideation. Testing indicating that the Veteran was severely anxious and depressed with intrusive recollection and difficulty relaxing without induction and dissociation. The Veteran's January 2016 VA mental status examination remained unremarkable. The Veteran maintained a good mood with appropriate affect, normal attention, normal concentration, normal memory, normal thought process, fair thought content, no suicidal or homicidal ideation, normal appetite, fair judgment, fair insight, and fair impulse control. April 2016 VA treatment records note no abnormal behavior, appropriate affect, anxious mood, coherent and goal driven thought process, no hallucinations, some paranoia, appropriate thought content, some sleep disturbance, and some flashbacks. During a depression screening the Veteran reported several days of little interest or pleasure in doing things and several days feeling down, depressed, or hopeless. Subjectively, the Veteran reported having no nightmares, and reported keeping busy by working around the house; he also reported exercising on and off. July 2016 VA treatment records note no abnormal behavior, appropriate affect, and mood, coherent and goal driven thought process, no hallucinations, some paranoia, appropriate thought content, sleep disturbance and some flashbacks. April 2017 VA treatment records note no abnormal behavior, appropriate affect, anxious mood, coherent and goal driven thought process, no hallucinations, no delusions, appropriate thought content, sleep disturbance, change in appetite, hopelessness, helplessness and some flashbacks triggered by being in crowds. The Veteran denied suicidal or homicidal ideation. The Veteran also reported traveling to Florida in January 2017. August 2017 VA treatment records note good mood, normal attention, normal concentration, normal memory, normal thought process, fair thought content, no suicidal or homicidal ideation, fair judgment, fair insight, and fair impulse control. January 2018 VA treatment records note no abnormal behavior, appropriate affect, appropriate mood, coherent and goal driven thought process, no hallucinations, appropriate thought content, some paranoia, some sleep disturbance, and some flashbacks triggered by thought of his in-service gunshot incident. April 2018 VA treatment records note no abnormal behavior, appropriate affect, anxious, angry, and depressed mood, coherent and goal driven thought process, no hallucinations or paranoia, appropriate thought content but some sleep disturbance and period flashbacks triggered by being in public spaces. August 2018 VA treatment records note anxious mood, appropriate affect, normal attention and concentration, normal memory, normal thought process, fair thought content no suicidal or homicidal ideation, fair judgment, fair insight, and fair impulse control. The Veteran also reported having flashbacks three times a week, triggered by being around a lot of people. December 2018 VA treatment records note good mood, appropriate affect, normal attention, normal concentration, normal recent memory, fair thought content, no suicidal or homicidal ideation, fair judgment, fair insight, and fair impulse control. April 2019 VA treatment records note no abnormal behavior, appropriate affect, anxious mood, coherent and goal driven thought process, appropriate thought content, sleep disturbance and flashbacks occurring weekly, triggered by being crowds. The Veteran also reported going to Florida two weeks prior. During a depression screening the Veteran reported several days of little interest or pleasure in doing things and several days of feeling down depressed or hopeless during the prior two weeks. However, the Veteran denied having thoughts that he would be better of dead or thoughts of hurting himself in some way. For the period from March 9, 2012 to June 25, 2019 the probative evidence of record does not establish entitlement to a rating in excess of 50 percent. While the evidence shows that the Veteran frequently demonstrated anxious mood and experienced flashbacks the evidence also frequently notes that the Veteran maintained normal memory, fair judgement and insight and appropriate thought content. Moreover, during the period at issue although the Veteran expressed symptoms of anxiety being around crowd and strangers, the Veteran also reported a gym and increased his exercise frequency. The Veteran remained married and reported frequent travel to Florida. This evidence suggests that while the severity of the Veteran's symptoms waxed and waned, the Veteran has been able to maintain some social interactions. Ultimately, while the record shows some occupational and social impairment because of his PTSD, the preponderance of the evidence noting appropriate affect, memory and judgement; the ability to maintain a marital relationship; and the ability to travel despite symptoms of anxious and depressed mood as well as flashbacks, suggests that the Veteran's symptoms do not rise to the level of occupational and social impairment with deficiencies in most areas. Instead, the severity of the Veteran's symptoms more nearly approximate occupational and social impairment with recued reliability and productivity. Entitlement to a rating in excess of 50 percent for the period from March 9, 2012 to June 25, 2019 is denied. 2. Entitlement to an initial compensable rating for status post bullet wound with myofascial pain syndrome. Procedural History The Veteran's claim for entitlement to service connection for residuals of gunshot wound was initially granted in an October 1979 rating decision, with a rating of 10 percent, effective September 27, 1979. The Veteran filed a claim for increased rating in March 2001. A November 2001 rating decision continued the Veteran's 10 percent rating for residuals of gunshot wound but granted a separate 10 percent rating for scar residuals of gunshot wound. The Veteran did not file a notice of disagreement with this decision. Subsequently, a September 2013 rating decision granted service connection for bullet wound with myofascial pain syndrome with a non compensable rating, effective March 9, 2012. The Veteran's status post bullet wound of the chest with pain was continued at 10 percent. The Veteran's scar residuals of gunshot wound was also continued at 10 percent. In September 2013 the Veteran filed a notice of disagreement seeking a compensable rating for bullet wound with myofascial pain syndrome. An October 2015 rating decision noted that per 38 C.F.R. § 4.79, when rating a traumatic injury under diagnostic code 6843, the involvement of muscle group XXI should not be separate rated. Consequently, the rating decision combined the Veteran's rating for residuals of gunshot wound and bullet wound with myofascial pain and continued the Veteran's 10 percent rating under diagnostic code 5321-6843 beginning September 27, 1979. This did not impact the Veteran's combined rating and therefore does not constitute a rating reduction. 38 C.F.R. § 3.105. A statement of the case was issued in October 2015 and the Veteran perfected his appeal with a December 2015 Form 9. In his form 9, the Veteran continued to disagree with the denial of an evaluation more than 10 percent disabling status post bullet wound of the chest with myofascial pain syndrome and right anterior defect. An October 2018 Board decision remanded the Veteran's claim for further development. Following the remand, a June 2020 rating decision granted service connection for gunshot wound residuals, muscle group II impairment right with a 40 percent rating effective July 16, 2019; service connection for gunshot wound residuals muscle group XXII impairment right with a rating of 10 percent effective July 16, 2019, service connection for scar of the anterior chest with a noncompensable rating, effective July 2019 and service connection for scar of the posterior trunk with a noncompensable rating effective July 8, 2019. In an October 2020 brief, the Veteran's representative asserts that the Veteran continues to disagree with the denial of entitlement to a rating in excess of 10 percent prior to July 8, 2019 for residuals of gunshot wound of the chest with myofascial pain syndrome and right defect. However, the Veteran's representative noted that the Veteran does not wish to appeal the denial of entitlement ot a rating in excess of 20 percent wound for residuals of gunshot wound beginning July 8, 2019 and thereafter. Thus, the issue before the Board is entitlement to a rating in excess of 10 percent for residuals of gunshot wound for the period from September 2013 to July 8, 2019. Analysis The Veteran was afforded a VA examination in April 2012 for respiratory conditions related to his gunshot wound. The Veteran was noted to have a gunshot fragment wound. However, his injury did not require any ongoing treatment such as bronchodilators, antibiotics, or oxygen therapy. Pulmonary function tests show pre bronchodilator results of less than 65 percent predicted, FEV-1 less than 56 percent predicted, FEV-1/FVC of 86 percent and DLCO of 91 percent. Post bronchodilator results were FVC of 82 percent, FEV-1 of less than 79 percent predicted, FEV-1/FV of 96 percent predicted. The Veteran was afforded a VA examination in March 2013 for muscle injuries related to his gunshot wound. The Veteran reported that he sustained a gunshot wound in 1979 during his active duty service. The bullet went from the chest wall under arm and moved to his anterior chest. Following his injury, the Veteran was in the hospital and stayed for one week, he also had lung injury at the time. The examiner noted a diagnosis of myofascial pain syndrome, right side affected. The Veteran complained of right anterior chest scar pain aggravated by cold weather, heavy lifting and stretching. The Veteran denied swelling, redness or signs of infection but report that sometimes the scar itches. The Veteran's injury was noted to be in the thoracic muscle group. The injury did not affect muscle substance or function but did result in occasional fatigue and pain. Nonetheless, the Veteran maintained 5/5 muscle strength with no evidence of muscle atrophy. The Veteran's muscle injuries did not result in an inability to keep up with work requirements. September 2015 VA treatment records note the Veteran's chest with normal expansion, no scar, and no rash. Ultimately for the period from September 2013 to July 8, 2019 the record does not substantiate entitlement to a rating in excess of 10 percent. In accordance with 38 C.F.R. § 4.96, when evaluating based on pulmonary function tests (PFTs) post-bronchodilator results are to be used in applying the evaluation criteria in the rating schedule unless the post bronchodilator results were poorer than the pre-bronchodilator results. Here, it is appropriate to use postbronchodilator results. The Veteran's post bronchodilator results were FVC of 82 percent, FEV-1 of less than 79 percent predicted, FEV-1/FV of 96 percent predicted which does not warrant entitlement to a rating in excess of 10 percent under diagnostic code 6833. The Board has also considered whether a higher rating would be appropriate under diagnostic code 5321. The evidence shows no more than a moderate disability of the thoracic muscle group. Specifically, while the Veteran reported some chest pain aggravated by cold weather, heavy lifting and stretching, the record does not show that the Veteran's myofascial pain required any ongoing treatment or therapy, and the Veteran denied swelling, redness or signs of infection. The Veteran also maintained 5/5 muscle strength. Further, while service treatment records note a one-week hospitalization immediately following the injury, subsequent treatment records do not note any ongoing hospitalizations, and the Veteran had no loss of muscle substance or atrophy. Based on the evidence of record, the Veteran's gunshot wound with myofascial pain does not warrant a higher rating under diagnostic code 5321. The Board has considered the Veteran's contentions and the argument put forth by the Veteran's representative that because the April 2012 VA examiner was aware of the Veteran's discomfort and the bullet having gone through the lung, and because the respiratory DBQ was left incomplete, the Veteran should be evaluated for a rating in excess of 10 percent back to 2010. First, the Board notes that following the Veteran did not appeal the November 2001 rating decision that continued the Veteran's 10 percent rating for gunshot wound and no new and material evidence was received within one year of the November 2001 rating decision. Subsequently, the Veteran did not seek an increased rating again until after the September 2013 rating decision. As such, the Veteran is not entitled to a rating going back to 2010. Further, the Board notes that while the April 2012 VA examination did not indicate which respiratory test most accurately reflects the Veteran's level of disability, none of the respiratory tests results suggests entitlement to a rating in excess of 10 percent. Moreover, none of the other evidence of record such as treatment records suggest that the severity of the Veteran's disability warrants more than a 10 percent rating. Entitlement to a rating in excess of 10 percent for gunshot wound with myofascial pain is denied. TDIU Legal Criteria Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disabilities to bring the combination to 70 percent or more. For the purposes 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 (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular criteria for TDIU is not met, a TDIU may still be awarded in all cases where service-connected disabilities preclude gainful employment regardless of the percentages awarded under 38 C.F.R. § 4.16(b). However, the Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10(2001). 3. Entitlement to total disability due to individual unemployability prior to June 25, 2019. The Veteran filed a claim for entitlement to TDIU in March 2012. A September 2013 rating decision denied the Veteran's claim. The Veteran filed a notice of disagreement in December 2013 and subsequently perfected his appeal with a December 2015 form 9. Following an October 2018 Board remand, a June 2020 rating decision granted entitlement to TDIU effective June 25, 2019. Thus, the issue of entitlement to TDIU prior to June 25, 2019 remains on appeal. For the period From March 2012 to June 25, 2019, the Veteran is service connected for PTSD with a rating of 50 percent; status post bullet wound of the chest with myofascial pain with a rating of 10 percent; and residuals of scar gunshot wound with a rating of 10 percent. For the period from March 2012 to June 25, 2019 the Veteran had a combined disability rating of 60 percent. The Veteran's service connected disabilities result from a common etiology, therefore, they are considered a single disability for the purposes of establishing entitlement to TDIU. 38 C.F.R. § 4.16. Although the Veteran meets the schedular criteria for TDIU, for the period prior to June 25, 2019 the preponderance of the evidence is against finding that the Veteran was unable to obtain and maintain substantially gainful employment. With respect to the Veteran's PTSD, evidence shows that the Veteran frequently experienced symptoms of anxiety, depression, sleep disturbance, paranoia and distrust of others. Further, the Veteran has indicated that as result of his PTSD he did not feel comfortable applying for jobs because he did not want to work around strangers. Nonetheless, the Veteran consistently maintained intact memory and thought process as well as appropriate judgment. Based on the evidence of record, the Veteran's PTSD would not preclude him from working a job that did not require him to interact with people. Similarly, while the Veteran's status post bullet wound of the chest with myofascial pain and residuals of scar of gunshot wound resulted in right anterior chest scar pain aggravated by cold weather, heavy lifting and stretching. Evidence shows that the Veteran denied swelling, redness or signs of infection but report that sometimes the scar itches. Further, evidence shows that the injury did not affect muscle substance or function but did result in occasional fatigue and pain. Nonetheless, the Veteran maintained 5/5 muscle strength with no evidence of muscle atrophy. This evidence establishes while the Veteran would have difficulty with heavy lifting and stretching, he could still perform work that does not require lifting and stretching. Ultimately the evidence shows that despite his service-connected disabilities the Veteran can engage in work that does not require him to interact with others, does not require heavy lifting, stretching or working in cold environments. For the period prior to June 25, 2019, the preponderance of the evidence weighs against a finding that the Veteran is unable to obtain and maintain substantially gainful employment. Entitlement to total disability due to individual unemployability prior to June 25, 2019 is denied. Michael Sanford Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.