Citation Nr: 21041888 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-31 546 DATE: July 10, 2021 ORDER Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. At no time during the appeal period did the Veteran's PTSD result in total occupational and social impairment. 2. During the period on appeal, the Veteran was not precluded from obtaining and maintaining substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1970 to April 1974. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated August 2013 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In September 2018, December 2019, and September 2020 the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for additional development. Increased Rating A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The schedule for rating psychiatric disabilities, to include PTSD and other acquired psychiatric disorder, provide that a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 1. Entitlement to an initial evaluation in excess of 70 percent for PTSD The Veteran's PTSD is rated as 70 percent disabling under Diagnostic Code 9411. The Veteran seeks a higher rating. The Veteran was awarded service connection for PTSD effective December 27, 2011, which marks the beginning of the period on appeal. Having reviewed the evidentiary record thoroughly, the Board does not find any evidence which would warrant the assignment of an evaluation in excess of a 70 percent disability rating. 38 C.F.R. § 4.7. The Board finds that the severity, duration, and frequency of PTSD symptoms during the appeal period result in social impairment with deficiencies in the areas of family relations and mood, but do not rise to the level of total social and occupational impairment. In an April 2012 lay statement, the Veteran wrote, Over the many years since this incident, I have been haunted by the re-occurring dream of it which has cost me loss of many jobs, fear of noises, anxiety attacks, social problems, and relationship problems. I do not have friends for fear that I will lose them by death, I changed my ID for some 30 years in fear of people. My house is a virtual fortress with security hardware. I have ongoing, documented panic attacks requiring hospitalization and I am under mental health treatment now...I began to have psychological problems showing up first as paranoid behavior. Within a short time, I was having severe social problems which exist even to today. I fear that during some incidents, I have the potential to harm others given the right stimulus. In an April 2012 statement, the Veteran reported, "I often can't sleep...I fear people and loud noises, I trust no one...I remained somewhat of a recluse the rest of my life fearful of crowds [and] loud noises which trigger a defense response from me." A June 2012 suicide risk assessment screening noted that the Veteran had recent suicidal ideations, with a suicide attempt one year prior, but denied current active suicidal ideation. In medical treatment records ranging from June 2012 to November 2012, the Veteran was alert and oriented in all spheres. His grooming was appropriate. His affect was appropriate and his mood was euthymic. His speech was normal. He had no hallucinations. Thought processes and content were normal. Insight and judgment were good. He avoided crowds and endorsed difficulty feeling emotionally close and had no relations with his family. There was no evidence of suicidality. In a February 2013 statement, the Veteran wrote, For 35 plus years, my PTSD has caused me to live under an assumed name from fear of the very government I served until an arrest for using it. During these years I have lived in paranoia, fearful to have friends for fear of losing them. Any noise, no matter how small triggered a defense action...I went on to an attempt to commit suicide, but that failed...I spend my days secluded living in my car and being suspicious of anyone who comes close...I have nearly no energy left...I spend much of my day in depression sad about my situation and bitter. The Veteran underwent a VA examination in March 2013 for PTSD. It was noted that he had occupational and social impairment with reduced reliability and productivity. Symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. The Veteran was dressed in casual attire and appeared clean and groomed. He was well-oriented in all spheres. There was no indication of psychotic processes. He denied suicidal or homicidal ideation, plans, or intent. He reported a significant other relationship of 32 years until his partner died in 2011. He reported overall ability to attend to his own daily needs. Mental health treatment notes ranging from December 2012 to August 2013 stated that the Veteran was doing well and feeling much happier than before. He was positive and upbeat, and felt that life had reached a turning point and was falling into place. He was alert and oriented in all spheres. His grooming was appropriate. His mood was euthymic and affect was congruent with mood. His speech was normal. He had no hallucinations. His thought process was linear. His thought content had no delusion. He denied suicidal or homicidal ideation. Insight and judgment were fair. In a July 2013 VA examination, the examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He cried and became very upset whenever he talked about the loss of his partner. The examiner noted that his emotional lability with regard to this loss and the fact that his mental health treatment and suicide attempt occurred around the time of his death indicates that his depression was associated with the loss of his partner, not his PTSD. He denied suicidal ideation. His social and occupational impairment was noted as mild. He demonstrated good memory and intact thought processes. He spent much of the day in his car on his computer. He enjoyed reading and helping others. He told stories to the examiner that suggested he had a good ability to establish relationships and develop rapport with others. Symptoms included depressed mood, anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a worklike setting. In mental health treatment notes ranging from January 2014 to April 2016, the Veteran reported that he was doing very well. He stated that he was sleeping well which helped with his mood and energy. He was enrolled in a Nursing Program and doing very well in it. His mood was good and positive. He had been socializing with some Veterans and working out at the gym. He had also been walking every day and socializing with more people. He liked meeting friends and exploring the area. He was dressed appropriately. His affect was appropriate, and mood was euthymic. His speech, thought content, and thought process were normal. He denied suicidal and homicidal ideation. There was no evidence of psychosis. He was alert and oriented in all spheres. Insight and judgment were fair. In a July 2016 VA examination, the examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran lived alone, was not dating, and had no friends. He reported that he never left the house, but later described shopping on base, working out occasionally at the gym on base, and frequently traveling. He said that if he were not on the computer, "I wouldn't be communicating with anyone" referring to his involvement in chat rooms. He stated that the computer "brings the world to you" and allowed him to communicate with people. He denied hallucinations, delusions, and paranoia. Symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, and disturbances of motivation and mood. In an October 2017 statement, the Veteran reported that his "PTSD has worsened to the point where I avoid all outside contact even having food delivered to my home. As a result of the foregoing, I have no friends nor visitors and this has been this way for years." In a January 2021 VA examination, the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He lived by himself. He said that he had withdrawn from others and stayed to himself. He said he did not have friends or spend time with anyone. He reported that he felt as though people were coming after him and was suspicious of other people's motives. He reported that his hygiene and attention to grooming were declining. He said that he sometimes did not want to care for himself because he did not see other people. He denied current suicidal ideation. Symptoms included depressed mood, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and inability to establish and maintain effective relationships. His hygiene and grooming were normal. His speech was normal and thought processes were logical and goal-directed. His mood was euthymic. His affect was appropriate. There were no memory impairments. Judgment and insight were adequate. After review of the foregoing evidence, the Veteran has not demonstrated symptoms of the frequency, severity, or duration consistent with a 100 percent rating. Specifically, there is no evidence which documents symptoms of or similar to: gross impairment in thought process or communication; grossly inappropriate behavior; persistent danger of hurting himself or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. On the contrary, numerous VA treatment records during the appeal period report he was fully oriented, behaved appropriately, and had appropriate hygiene. In all of his VA examinations, the Veteran denied thoughts of harming others and denied any suicidal ideations. While the Veteran reported that he attempted suicide in 2011, this was a single instance. The Board is sympathetic to the loss of the Veteran's partner and the difficulty he endured due to this loss; however, this single instance does not rise to the level of presenting a persistent danger of self-harm as articulated in the 100 percent rating criteria. Throughout the period on appeal, the Veteran has consistently denied suicidal ideation. Additionally, the July 2013 VA examiner attributed the suicide attempt to the death of his partner as it occurred around the time of his death. The examiner wrote that this "indicates that his depression is associated with the loss of his partner, not his PTSD." Thus, the Veteran's social and occupational impairment has not manifested in a persistent danger of self-harm consistent with a 100 percent rating. Furthermore, while the Veteran reported in his January 2021 VA examination that his hygiene and attention to grooming were declining, the Board finds that this does not rise to the level of intermittent inability to perform activities of daily living. On the contrary, in all of the medical treatment records and VA examinations, the Veteran's hygiene was appropriate and he was able to perform activities of daily living consistently during the appeal period. The current 70 percent rating contemplates neglect of personal appearance and hygiene. Thus, the Veteran's social and occupational impairment has not manifested in an intermittent inability to perform activities of daily living consistent with a 100 percent rating. The Board does not find the total social impairment necessary for a 100 percent rating. Early in the appeal period through 2016 the Veteran reported friendships with other Veterans, socializing with people on base, reported that he liked meeting friends, and/or socializing online. In the latter half of the appeal period, he began to deny having any friends or visitors, but this appears to be by choice. While his PTSD interferes in his relationships and causes him to isolate from others, a serious deficit in social functioning (i.e., an inability to establish and maintain effective relationships) is reflected in the assignment of a 70 percent evaluation. Thus, his current rating contemplates his level of social impairment. He does not demonstrate the symptoms of the severity, frequency, and duration on par with total social impairment (e.g., grossly inappropriate behavior, persistent danger of harm to others, gross impairment in communication). The Veteran's PTSD symptoms do not produce total occupational impairment. The March 2013 and July 2016 VA examiners opined that the Veteran's level of occupational and social functioning had "reduced reliability and productivity," the level contemplated by a lower 50 percent rating. Additionally, the July 2013 and January 2021 VA examiners opined that the Veteran's level of occupational and social functioning had an "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 level contemplated by an even lower 30 percent rating. The January 2021 examiner, when asked to describe the impact of the functional effects PTSD in an occupational setting responded: Claimant may have difficulty getting along with people because he has isolated in his house since his spouse's death. However, there is no reason to believe that his symptoms would interfere with his ability to perform a job that he could do independently. He reported that he completes a variety of tasks during the day and has learned a variety of things, including Russian. He does not present with attention or concentration deficits that would impair his ability to attend to required tasks, nor is there any reason to believe that he lacks motivation to complete work." After a thorough review of the evidence, the Board finds the examiners' assessments of social and occupational impairment are supported by the record. The frequency, severity, and duration of the Veteran's symptoms are contemplated by a 70 percent disability rating, and his request for a schedular rating higher than 70 percent for service-connected PTSD is denied. U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to a TDIU Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any impairment or combination of impairments for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated as at least 60-percent disabling, and if there are two or more disabilities, at least one disability must be rated as at least 40-percent disabling and there must be sufficient additional disability to bring the combined rating to at least 70 percent. Id. For the above purpose 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, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. The Board finds that the Veteran meets the schedular requirements as service connection was in effect at 70 percent for PTSD with depression from December 27, 2011, among other disabilities. In this case, the Veteran was also service-connected for ischemic heart disease at 100 percent from October 18, 2012. Thus, his combined rating from October 18, 2012 was 100 percent. A TDIU may be assigned "where the schedular rating is less than total" and a Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. The Board acknowledges that it is not categorically true that the assignment of a total schedular rating renders an individual unemployability claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a Veteran has a schedular total rating for a particular service-connected disability, and could establish a rating based on individual unemployability for another service-connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)). However, in this case, the Veteran is already in receipt of special monthly compensation at the housebound rate from October 18, 2012 on account of the ischemic heart disease rated at 100 percent and additional service-connected disability of PTSD with depression independently rated at 60 percent or more from October 18, 2012. Therefore, a TDIU is denied for the period from October 18, 2012. Thus, the Board will proceed with its analysis of entitlement to a TDIU from December 27, 2011 to October 17, 2012. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Furthermore, VA regulations provide that all Veterans who, in light of their individual circumstance, but without regard to age, are unable to secure and follow a substantially gainful occupation as a result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable under the circumstances. See VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. 38 C.F.R. § 4.16(b). However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). In its September 2020 decision, the Board remanded the issue of entitlement to a TDIU to provide the Veteran an opportunity to complete a VA Form 21-8940 and provide any additional evidence relating to his inability to work. The Veteran was sent a VA Form 21-8940 in October 2020; however, he did not submit a completed VA Form 21-8940. In June 2021, the Veteran's representative wrote, "a remand is warranted to afford the Veteran another opportunity to submit the required VA Form 21-8940." See Appellate Brief dated June 2021. The United States Court of Appeals for Veterans Claims (CAVC) has held, "[t]he 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). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the Board remanded the claim in September 2020, in part, to afford the Veteran an opportunity to submit a completed VA Form 21-8940 and has no reason to expect that the outcome would be any different if it were to remand for the same action again. To the extent possible, VA has attempted to assist the appellant. Accordingly, no further attempts to assist the appellant are warranted. See Olson v. Principi, 3 Vet. App. 480 (1992). Thus, the Board will proceed with adjudication for the issue of entitlement to a TDIU based on the evidence of record. Following a thorough review of the evidence, the Board finds the competent and credible evidence of record does not support an award of a TDIU from December 27, 2011 to October 17, 2012. In an April 2012 statement, the Veteran stated that he has an "inability to hold a job because of a poor attention span" and stated that he has "had over 100 jobs." Applicable regulation place responsibility for the ultimate TDIU determination on the adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board has reviewed the relevant evidence and reached its own conclusion that the preponderance of the evidence is against the Veteran's claim. Neither the Veteran nor his attorney have made any arguments regarding how his PTSD prevented him from securing and maintaining substantially gainful employment during this stage. While the Veteran did provide a statement in April 2012 about his inability to hold a job due to poor attention span, he did not provide further details about his past employment. Furthermore, the evidence of record does not contain any medical evidence from December 27, 2011 to October 17, 2012. Thus, the evidence does not demonstrate that the Veteran's psychiatric symptoms limited him from working during this time. The claimant has the burden to "present and support a claim for benefits;" the benefit of the doubt standard in 38 U.S.C. § 5107 (b) is not applicable based on pure speculation or remote possibility. Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). In this case, the evidence of record does not show that the Veteran's PTSD precludes him from securing and following a substantially gainful occupation. Therefore, entitlement to a TDIU is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.