Citation Nr: 21040434 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-61 334 DATE: July 3, 2021 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted subject to the laws and regulations governing the award of monetary benefits. An initial rating higher than 70 percent for service-connected PTSD is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) based upon service-connected disabilities is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the evidence is at least in equipoise that the Veteran's PTSD, has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment. 2. Throughout the period on appeal, the Veteran's PTSD symptomatology has not more closely approximated total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an initial disability rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection and assigned a 50 percent rating for PTSD. A January 2021 rating decision increased the Veteran's that evaluation from 50 percent to 70 percent effective January 15, 2021. In March 2019, the Board remanded the Veteran's claims on appeal for further development. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38C.F.R. §4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38C.F.R. §4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38C.F.R. §§4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks higher ratings for his service-connected PTSD. In a March 2019 decision, the Board reviewed two private medical opinions dated May 2018 which were submitted by the Veteran, suggesting that his psychiatric disability was severe enough to result in occupational and social impairment with deficiencies in most areas. In light of the Veteran's contention of a worsening disability, the Board remanded his claim for further development to include a new VA examination. The Board finds that there has been substantial compliance with the March 2019 remand directives in this matter. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D' Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Under the General Formula for Mental Disorders (General Formula) evaluations are symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Board concludes that the evidence supports a finding that for the period on appeal the disability picture more closely approximated the symptoms associated with a 70 percent disability rating. At no time during the appeal period have the symptoms of the Veteran's PTSD disability approximated those associated with a 100 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. A review of the evidence shows that the Veteran submitted an initial claim of entitlement to service connection for PTSD in March 2011. He first sought mental health treatment at the Washington VA Medical Center (VAMC) in February 2010 after being referred to mental health for an evaluation of PTSD. He did not report any prior inpatient or outpatient psychiatric treatment. At the time, the Veteran resided with his girlfriend. He was divorced and had two adult children with whom he maintained contact and a good relationship. He also maintained a good relationship with his extended family. He worked "off and on" in a self-employed capacity, occasionally doing consulting work with broadcasting stations in the field of engineering. On mental status examination the Veteran's activities of daily living, posture/gait and motor activity were within normal limits. The Veteran did not report any neurological problems. His speech, eye contact, and orientation were normal. The Veteran did report having problems with concentration that would interfere with his work. He stated he was unable to keep his mind focused on a task. Thought processes, insight, and judgment were normal. He reported that he had friends with whom he would interact regularly. Regarding sleep, the Veteran reported that he would wake up unable to fall back to sleep, that he would have trouble falling asleep, and that he suffered with nightmares. His appetite fluctuated, and he had variable energy levels. The Veteran reported moderate anxiety. He would avoid certain situations that reminded him of the Vietnam War, such as war movies. He also reported an increased awareness of the people around him, or hypervigilance. He did not have anger problems. His affect was appropriate, and the attending psychiatrist noted that the Veteran's mood was anxious and depressed. Thereafter, the Veteran received regular treatment with VA for his mental disorder until October 2010. The did not resume treatment until February 2012. Then, the Veteran reported that he had been unable to maintain a prior job as an airline pilot because it reminded him of his service as a bomber pilot in Vietnam. He reported having poor sleep with flashbacks. He also indicated that he would awaken with memories of missions from his service, sometimes including incidents where he was in danger of being shot down and watching the death of one of his partners. He related that became nervous and tense at times, needing to go to the emergency room with high blood pressure. He endorsed having a depressed mood and feeling empty, helpless, and hopeless. He was unable to see a clear future and had no plan for the day; he had no drive or motivation and would remain in bed for most of the day. The Veteran related that his PTSD group therapy had worsened symptoms, and he further endorsed having mood swings, racing thoughts, and spending sprees. He reported improved libido. The attending psychiatrist documented a social and family history consistent with that of February 2010, though the Veteran also reported having a stepson with whom he did not maintain contact, but he did maintain contact with his stepdaughter. A mental status examination was normal. The Veteran denied suicidal or homicidal ideation. He further denied any perceptual disturbances. The attending psychiatrist summarized that the Veteran, who had a history of PTSD and bipolar disorder had exacerbating symptoms of PTSD, including flashbacks, poor sleep, irritability, mood swings, racing thoughts. He had ceased group therapy and was no longer taking his medication for mood. He felt anxious at times and would tense up. The Veteran received continued psychiatric care in May 2012. The Veteran shared that he had been doing well though he felt irritated at times. He had not taken psychotropic medications since an unrelated hospitalization, reporting that he felt agitated and irritable when taking the medications. A mental status examination was normal. In May 2013 VA sought a medical opinion from an examiner who conducted a records review. The examiner opined that a medical nexus existed between the Veteran's PTSD diagnosis and his verified stressor of flying B-52 bombing missions over Vietnam in 1972. Thereafter, there was a lapse in mental health treatment. An August 2015 Dayton VAMC primary care record noted that the wanted to see the group for PTSD therapy to get over the Vietnam experience, but he only occasionally has nightmare and did not want medication for it. The Veteran was afforded a VA examination in November 2016. The VA examiner found that the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran was still living with his girlfriend, they had been together for the previous seven years. The Veteran reported that he generally got along with his girlfriend. He was widowed from his first wife and divorced from his second. He had two adult children with whom he had a good relationship. He spoke with his children regularly. Socially, the Veteran tended to keep to himself. He spent his free time reading, watching television, and on the computer. He would occasionally go out to dinner, though he did not attend movies or ball games. The Veteran was self-employed, working 20 to 40 hours per week for approximately three weeks out of every month. He reported no significant problems or issues at work. The Veteran indicated that he liked to work alone. The Veteran was not participating in any mental health treatment. He stated that he meditated often and that he was doing yoga until he had hurt his back. He denied taking psychiatric medications on a regular basis, and he only very occasionally used valium, most recently 5 months earlier. He was not participating in psychotherapy, and he was last seen by a psychiatrist with VA in May 2012, as documented earlier. He had no legal or behavioral history, and he did not abuse any substances. The symptoms of the Veteran's PTSD included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that he was triggered by airplanes, billboards, stickers on cars, depending on what he was doing at the time. He related that he tried to put any triggering influences out of his head and forced himself to think about something else. He denied having flashbacks but indicated that he had intrusive memories. He stated that when driving he might find himself looking for enemy aircraft. He would also awaken startled and agitated at times. He recalled having a dream where he was flying bombing missions over Vietnam. He denied panic attacks, but he reported ongoing anxiety related to flying and airplanes. He reported inconsistent sleep habits. Sometimes he could go to sleep. Other times, however, he would stay up and not sleep well. The examiner noted that the Veteran had been diagnosed with sleep apnea. The Veteran reported getting six to seven hours of interrupted sleep per night. The Veteran also avoided talking about Vietnam or watching combat movies. He tried not to think about events from his service. He also reported having some emotional and social detachment, sometimes not wanting to be bothered or to have long discussions with people. He reported mild anhedonia. He enjoyed fishing with varying frequency, anywhere from every other day to once per month, though he had not been fishing in the previous couple of months. He also reported having trauma related guilt about "a lot of things." He reported being startled at times, depending on his "frame of reference," and he endorsed mild hypervigilance, indicating that he found himself being unnecessarily vigilant. He had no significant problems with anger or irritability, but there were times when he felt snappy. He reported that his concentration was improving. In the past, his mind wandered frequently. The Veteran also reported having a variable mood. He admitted to not being upbeat. His appetite was fair, and he had been trying to lose weight. Energy levels were described as decent, though the Veteran indicated that he was not that active. He was trying to walk regularly. He also denied any significant feelings of helplessness or hopelessness. He denied suicidal or homicidal ideation. As noted above, the Veteran through his representative submitted a series of buddy statements, a brief, and two independent psychiatric evaluations in July 2018. Two of the statements, written by the Veteran's sisters, described generally worsening symptoms over time. They also described symptoms like panic attacks, memory problems, and cognitive difficulties that are not noted at any point in VA treatment or in the November 2016 VA examination. In another statement from the Veteran's brother, the Veteran is described as suffering from PTSD that impacted his ability to work and function in an employment environment. The statement also described memory loss and the inability to pay attention to detail, these symptoms also resulting in additional work limitations. An evaluation from Dr. LBC dated May 2018, opined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Symptoms identified included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, obsessional rituals that interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, and the intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Dr. LBC also reported that the Veteran was unable to manage his financial affairs. Also, of record is a May 2018 assessment from Dr. RW that was largely consistent with the May 2018 evaluation by Dr. LBC. In accordance with the March 2019 Board remand, the Veteran was afforded a VA PTSD examination in January 2021. The examination was conducted by video telehealth. The examiner confirmed a psychiatric diagnosis of PTSD and opined that as a result the Veteran experienced occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgment, thinking and/or mood. The examiner indicated that the Veteran's mood was anxious, and his affect was flat. However, his thought process was within normal limits without suicidal or homicidal ideation, nor any delusions, phobias, obsessions, or compulsions. The January 2021 examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, near continuous anic or depression affecting the Veteran's ability to function effectively, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships and impaired impulse control. Notably, the examiner was asked by the Board to reconcile the findings of the VA treatment records and the VA examination of November 2016, with the evidence submitted from private sources in July 2018 which suggested a more severe symptomatology. The January 2021 VA examiner found that there were no significant or pertinent inconsistencies in the records. The examiner noted that the Veteran was considered a reliable historian and exhibited signs and symptoms consistent with PTSD. Further, multiple VA associated mental health professional described similar diagnosis. Based on the foregoing evidence, the Board finds that the preponderance of the evidence supports the award of an initial 70 percent rating, and no higher, for service-connected PTSD Significantly, the Veteran's PTSD symptomatology did not result in virtual isolation from the community; total incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, with disturbed thought or behavioral processes associated with almost all daily activities; or demonstrable inability to obtain or retain employment. The Veteran also did not demonstrate gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or other symptoms approximating the criteria for a 100 percent schedular rating. Accordingly, the Board finds that the PTSD symptomatology shown does support the assignment of an initial 70 percent rating for PTSD, but a preponderance of the evidence is against a finding that 100 percent rating is warranted for PTSD. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Regarding the claim for TDIU, the Board finds that further development is required before it can fully and fairly adjudicate this appeal. As an initial matter, in May 2021 correspondence the Veteran's attorney noted that a Social Security earnings record indicated that the Veteran had no substantial gainful activity reported since February 1, 2017. However, this evidence has not been associated with the Veteran's claims file. In addition, there are several discrepancies that need to be resolved regarding the Veteran's claim. First, in the Veteran's Application for Increased Compensation Based on Unemployability VA Form 21-4192 dated September 2020 and his employer PC's Request for Employment Information VA Form 21-4138 dated October 2020 the Veteran's dates of employment are in conflict. Specifically, the employer stated that the Veteran was last paid five hundred dollars before he was terminated in December 2017. However, the Veteran stated that he continues to be employed approximately 5 hours per week, with gross earnings of approximately four thousand dollars per month. In March 2021 correspondence, the Veteran noted that his brother who owns the company, hired him to work there with significant accommodations. The Veteran stated that the income he receives from his brother's company is the only way he can survive. In a March 2021 statement, the Veteran's brother similarly acknowledged that as the owner of PC he is assisting his brother who works on and off for him depending how he is feeling. Although the Veteran has shown employment, such employment does not necessarily preclude an award of TDIU unless the employment is considered "substantially gainful employment." See C.F.R. § 4.16(a). There is no regulatory definition of "substantially gainful employment." However, 38 C.F.R. § 4.16 (a) instructs that "[m]arginal employment shall not be considered gainful employment." "Marginal employment" exists when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. "Marginal employment" may also be held to exist on a facts-found basis, including employment in a protected environment such as a family business, when earned annual income exceeds the poverty threshold. Id. The evidence of record is insufficient to determine whether the Veteran's employment with the family business constituted "marginal employment." On remand, the Agency of Original Jurisdiction (AOJ) should provide the Veteran with an opportunity to supply relevant information in support of his claim for entitlement to TDIU, including updated salary information from PC, and sufficient information to determine whether the Veteran's employment is in a protected environment. Since the Veteran's VA Form 21-8940 also indicated that the Veteran was self - employed and working for companies other than PC during the appeals period, the Board finds that on remand, the RO should request that the Veteran provide further details about that self-employment. The Veteran is asked to clarify the nature and circumstances of any self-employment during the appeal period including any income received as a result. The matters are REMANDED for the following action: 1. Conduct any appropriate development to associate the SSA earnings record referenced by the Veteran's attorney with Veteran's claims file. 2. Attempt to obtain a complete self-employment history from the Veteran concerning his TDIU claim, including complete salary history and tax records. 3. Conduct any further development necessary to determine whether any part of the Veteran's employment history was marginal or in a protected environment. Michael Sanford Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.