Citation Nr: 21041154 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-16 574 DATE: July 8, 2021 ORDER An initial evaluation of 50 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's PTSD was productive of a disability picture that more nearly approximates that of occupational and a social impairment with reduced reliability and productivity. 2. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent, but no higher, for the Veteran's PTSD, have been met. 38 U.S.C.§§1155, 5107; 38 C.F.R. § 4.130, DC 9411. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to November 1971. He received the Combat Infantryman Badge, among other decorations for this service. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board, in part, denied the Veteran's claim of entitlement to an initial compensable disability rating prior to April 7, 2017 for PTSD and in excess of 30 percent, thereafter. The Veteran subsequently appealed the April 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court issued a Memorandum Decision that vacated the Board's April 2019 decision and remanded the matter to the Board. 1. Entitlement to an initial compensable disability rating prior to April 7, 2017 for PTSD and in excess of 30 percent, thereafter Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400 (o)(2). The Veteran's PTSD is assigned a noncompensable (0 percent) disability rating prior to April 7, 2017 and a 30 percent disability rating thereafter under 38 C.F.R.§ 4.130, Diagnostic Code 9411, which is evaluated under the general rating formula for mental disorders. Under this general rating formula, a 0 percent disability rating is assigned where there is a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, DC 9411. A 10 percent rating is assigned where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Id. A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). This may be due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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. Id. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. Id. The list of symptoms in the General Formula is not intended to constitute an exhaustive list, but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." After careful review, the evidence shows that for the entire period of appeal, the Veteran's PTSD most closely approximates the criteria for a 50 percent rating under Diagnostic Code 9411. The evidence does not more closely approximate the schedular criteria for the assignment of disability rating in excess of 50 percent. In an October 2014 VA outpatient treatment report, the Veteran was found to have symptoms consistent with anxiety and PTSD. He reported nightmares when he came back from Vietnam and believes his symptoms contributed to his trouble with the law and going to prison for 14 years. He works for his son in his farm. The Veteran's mental status was noted to be alert and oriented in all spheres with normal grooming and hygiene. He was noted to be calm and cooperative throughout the interview. No unusual psychomotor features noted. Speech normal rate/tone/volume. Mood was level, affect was reactive and mood congruent. Thought process was logical and goal directed. He denied suicidal or homicidal ideations. Perception and memory were intact. Insight/judgement was good. The examiner further noted that the Veteran did not request treatment at that time. A related VA screening for PTSD noted the Veteran reported the following symptoms: avoidance, loss of interest in activities he used to enjoy, distant or cut off from other people, emotional numbness, trouble falling or staying asleep, irritable, angry outbursts, difficulty concentrating, watchful or on guard, jumpy or easily startled. In the January 2015 VA examination, the Veteran was diagnosed with PTSD and adjustment disorder with depressed mood. The examiner noted that the Veteran no longer has marked re-experiencing of intrusive memories or nightmares, marked arousal or reactivity, that he slept pretty well and was not on any medications currently. The VA examiner noted that the it was possible to differentiate what symptoms were attributable to each diagnosis. Symptoms of depressed mood, anxiety, suspiciousness, flattened affect recurrent intrusive thoughts and dreams, avoidance, detachment, and concentration problems were noted in the PTSD diagnostic criteria section, and it was also noted that the disturbance of PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. However, the January 2015 VA examiner concluded that there was no significant occupational or social impairment and that the Veteran's PTSD was in remission. The examiner summarized the Veteran's occupational and social impairment as a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In a March 2015 addendum report, the VA examiner explained that "the PTSD diagnosis is associated with the classic triad of reexperiencing, avoidance, and physiological reactivity. It is in partial remission, as the veteran is no longer having the reexperiencing or the reactivity. The adjustment disorder (from life in prison) is associated with life changes to transitioning on the outside, with symptoms of dysphoria, guilt, and low energy that are associated with depression." The examiner further added that "[c]urrently, his depressed mood, anxiety, suspiciousness, and flattened affect belong to his adjustment disorder. His PTSD, being in partial remission, is now only associated with occasional avoidance, which is not a large part of the current picture." In January 2017, the Veteran stated that he is having periods of uncontrolled anger and suggested that without PTSD he probably would not have gone to prison for 13 years. See January 2017 NOD. In March 2017, the Veteran stated "[m]y PTSD prohibits me from having a professional, wage earning occupation, and from being able to carry normal, supportive relationships." See March 2017 VA Form 9. In April 2017, the Veteran was afforded a VA examination for PTSD. The Veteran was diagnosed with PTSD with the following reported symptoms: aggressiveness and anger outbursts; sleep disturbance, with nightmares and related fatigue; troubling recall of combat events; hypervigilant thoughts and behaviors; exaggerated startle response and avoidance of stimuli associated with his combat experiences. The examiner noted a diagnosis of PTSD and that the Veteran only have one mental disorder diagnosis. Symptoms of depressed mood, anxiety, chronic sleep impairment, recurrent intrusive thoughts and dreams, avoidance, persistent negative beliefs, dimmish interest in significant activities, detachment, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response and sleep disturbance were noted in the PTSD diagnostic criteria section and an 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 Veteran denied any history of psychological interventions or psychotropic medications since previous VA examination. The Veteran denied any significant interactions with others aside from family members or having any current hobby or interests. The Board finds the January 2015 VA examiner's report is inadequate for rating purposes as it is internally inconsistent. The 2015 VA examiner noted the Veteran's symptoms of depressed mood, anxiety, suspiciousness, flattened affect, recurrent intrusive thoughts and dreams, avoidance, detachment, and concentration problems in the PTSD diagnostic criteria section; noted that the disturbance of PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. However, concluded that the Veteran's symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In its March 2015 addendum, the VA examiner's stated that the Veteran's depressed mood, anxiety, suspiciousness, and flattened affect belong to his adjustment disorder, which he opined was not related to the Veteran's service. The Board gives more probative weight to the October 2014 and April 2017 VA examiners that found the Veteran's PTSD was the only mental disorder diagnosis presenting mostly the same symptomatology, which more nearly approximated that of occupational and social impairment with reduce reliability and productivity, which warrants a 50 percent rating under Diagnostic Code 9411. Because the Veteran's statements, 2014 VA treatment records, and 2017 VA examinations reflect that his PTSD was generally the same during the entire appeal period and because such records reflect occupational and social impairment with reduced reliability and productivity, such as experiences difficulty to establish and maintain both work and social relationships, disturbances of motivation and mood, impaired judgment the Board finds a higher 50 percent rating is warranted. His ability to relate to others is impaired by irritation and by having strained relationships with several of his four children, the Board will give the Veteran the benefit of the doubt and increase his initial rating to 50 percent disabling but no higher during the entire period on appeal. The Board also finds that a rating in excess of 50 percent is not warranted at any point during the period of appeal. The Veteran has difficulty establishing and maintaining relationships, consistent with a 50 percent rating, but the record does not show inability to establish and maintain relationships. For example, he reports a good relationship with his daughter and takes care of his mother. The record does not show the Veteran experiences panic attacks, much less reflect the frequency that the higher 70 percent rating contemplates. While the Veteran has experienced depressed mood, depression has not affected his ability to function independently, appropriately and effectively. In sum, the totality of the record reflects the symptoms the Veteran has does not present with the frequency and severity that it more nearly approximates deficiencies in most areas at any point during the entire period of appeal. Because the Veteran's PTSD manifested in occupational and social impairment with reduce reliability and productivity, he is entitled to an initial 50 percent rating, but no higher, during the entire period of appeal. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) In a March 2017 statement, the Veteran stated that "PTSD prohibits me from having a professional, wage earning occupation." See March 2017 VA Form 9. In April 2017, the RO inferred a TDIU claim as part of an increased rating claim as it was reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The most recent VA examination in April 2017 reflect that the Veteran is currently employed; however, he reported in the April 2017 VA psychiatric examination that he continued to work "odd jobs and ranching work" when available. Because there is evidence that the Veteran may be able to secure and follow a substantially gainful occupation due to service-connected disabilities, in April 2019, the Board remanded the issue for employment history and development. The Board finds substantial compliance with the April 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The AOJ's ability to conduct any additional development needed to adjudicate the claim for a TDIU was limited by the Veteran's failure to return a completed VA Form 21-8940. The appealed issue was last adjudicated by a September 2020 SSOC. As part of the TDIU claim development, AOJ requested the Veteran complete and submit a completed VA Form 21-8940. The Veteran did not submit a completed VA Form 21-8940. The AOJ most recently sent the Veteran a letter requesting him to complete and return an enclosed VA Form 21-8940 in October 2019. The Veteran did not submit the VA Form 21-8940. The September 2020 SSOC was also sent to the Veteran's representative. A claimant bears the burden of presenting and supporting a claim for benefits. See 38 U.S.C. § 5107 (a); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The duty to assist in the development and adjudication of a claim is not a "one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). A claimant may have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, potentially relevant evidence that could have been provided by the Veteran through the filing of VA Form 21-8940, such as his full employment history, any training or education undertaken since becoming disabled, and the specific circumstances under which he left prior employment, was not available. As such, the Board will adjudicate the TDIU claim and decide on the Veteran's unemployability, based on the evidence available in the file. 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 as a result 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 disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is service-connected for posttraumatic stress disorder rated at 50 percent, residuals of prostate cancer rated at 20 percent, tinnitus at 10 percent, and bilateral hearing loss, erectile dysfunction, and scars associated with the service connected prostate cancer, rated at 0 percent. The Veteran's combined disability rating is evaluated at 60 percent. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). Where the TDIU schedular percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, supra. In November 2019, the Board again remanded the issue of entitlement to a TDIU. The Veteran's claim was referred to the Director of Compensation Service (Director) for consideration of extraschedular entitlement to total disability individual unemployability (TDIU), based on 38 C.F.R. § 4.16 (b). In September 2020, the Director issued an advisory opinion finding that an extraschedular rating was not warranted. The Board is not bound by this decision and will conduct its own de novo analysis. Ray v. Wilkie, 31 Vet. App. 58, 63 (2019) (citing Wages v. McDonald, 27 Vet. App. 233, 238 (2015)). The grant of an extra-schedular rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). As such, before the Board can refer a TDIU claim to the Director of Compensation Service for an extra-schedular evaluation, the Board must determine that a veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability or disabilities. Therefore, the ultimate question for the Board is whether a claimant is capable of performing the physical and mental acts required by employment; not whether he or she can find employment. Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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 or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. VA shall consider all information lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court recently clarified the consequences of referrals for extraschedular TDIU. The Court determined that a decision to refer a claim to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b) is a factual finding, but the referral does not require the Board to award an extraschedular rating. Id. at 65. However, the Board "must ensure that it adequately explains its reasoning when a factual finding made at the referral stage comes out differently at the review stage." Id. at 66. After examining comparable Social Security regulations, the Court's opinion in Ray determined that the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16(b) contains both economic and noneconomic components. The economic component requires a determination as to whether a veteran's income exceeds the poverty threshold. Id. at 73. The noneconomic component concerns a veteran's ability to secure and follow such employment. The Court indicated that it may be appropriate to consider the veteran's history, education, skill, and training. Id. The Court found that it was also necessary to consider a veteran's physical ability, with possible relevant factors including limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Finally, consideration should be given to the veteran's mental ability, including his limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. According to the Court, these factors do not constitute a mandatory checklist. Rather, discussion of these factors may become necessary if they are raised by the evidence. Id. When applying this caselaw and other governance to the facts of this case at hand, the Board finds that the preponderance of the evidence of record weighs against a finding that the severity of the service-connected disabilities prevented the Veteran from obtaining or maintaining substantially gainful employment. From the medical records available on file, the Board notes that the Veteran completed high school, worked for a manufacturing company, worked as a mechanic for 10 years and had a shop pf his own for three years from 1979 to 1982, and from 1982 onward he worked mostly as a farmer. In 1984, he went back to work for the same manufacturing company. In January 2015, the Veteran reported been currently helping his son on the farm. In April 2017 the Veteran reported he continues to work "odd jobs and ranching work when it's available." Private treatment records show that in March 2016 the Veteran stated been "busy farming/ranching season is approaching." In January 2015, the Veteran reported been currently helping his son on the farm. In April 2017 the Veteran reported he continues to work "odd jobs and ranching work when it's available." In a December 2014 VA examination for prostate cancer, the examiner noted the condition did not have functional impact. More recently, in an April 2017 VA examination, the examiner noted that Veteran's prostate cancer impacts his ability to work as he has to carefully watch what he lifts, because heavy lifting causes urinary leakage. On occasions, he has to stop what he's doing to go to the bathroom. As mentioned above, the Board has found that the Veteran's PTSD manifested in occupational and social impairment with reduce reliability and productivity. However, the Veteran has stated that he keeps working when jobs are available. The decision of Director of C&P was based on the determination that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevent employment. (Continued on the next page) After reviewing all the evidence of record, to include VA treatment records, VA examination reports, private medical records and lay statements, the lay and medical evidence the Board finds the Veteran's combined service-connected disabilities have not rendered him totally unemployable for purposes of individual unemployability benefits on an extra-schedular basis. Because the Board finds the Director's determination regarding employability most persuasive, along with the fact that the Veteran has a high school education, varied work history reflecting he has obtained different types of employment in the past and the medical evidence that reflects some limitations but does not suggest that these limitation preclude the Veteran from securing and following gainful employment, the Board is denying this extra-schedular TDIU claim. The most probative evidence of record is against finding that the Veteran was unemployable due to his service-connected disabilities on an extra-schedular basis; therefore, the claim must be denied. In reaching this conclusion, the benefit of the doubt doctrine has been considered; however, the preponderance of the evidence is against his claim, so this doctrine is inapplicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.