Citation Nr: 21041889 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-37 919 DATE: July 10, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), is denied. Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's PTSD is not productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. At no point in the appeal period does the Veteran meet the schedular requirements for a TDIU, and the evidence does not indicate that the Veteran is unemployable due solely to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU are not 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 served in the United States Army from September 1950 to April 1954. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) August 2012 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans Law Judge at a December 2017 Board hearing. A transcript of that hearing has been associated with the claims file, and has been reviewed by the Board. In January 2018 the Board, in pertinent part, granted entitlement to a 50 percent rating, but no higher, for PTSD and denied the claim for a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2019 Court order, the Court vacated the Board's decision to both claims, and remanded the issues back to the Board. Pursuant to the Court's order, the Board remanded the Veteran's claims in January 2020 for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. 1. Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder The Veteran contends that his service-connected PTSD warrants a disability rating in excess of 50 percent. Disability ratings are determined by applying the criteria set forth in the 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; 38 C.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. 38 C.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. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's PTSD is rated under Diagnostic Code (DC) 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies: A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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 rating is warranted when there is 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); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's PTSD manifests primarily as chronic sleep impairment, anxiousness, irritability, occasional panic attacks, and hypervigilance. A January 2011 written statement from his wife, describes him as a "nervous person" who experiences frequent night sweats "with dreams where he is screaming," and an inability to sleep "throughout the night" without sleep aids. An April 2011 VA examination found that the Veteran experienced a "mild impairment in functional status and quality of life due to PTSD." The Veteran reported having a "real fine" relationship with his wife, and had several "satisfying" social relationships. At the time, the Veteran denied experiencing any panic attacks, nor had he lost any time at work over the last 12 months to his PTSD. Overall, the examiner described the Veteran's condition as "mild," and found that the condition did not cause clinically significant distress or impairment in social or occupational areas. These findings were corroborated by a September 2011 PTSD screening/intake interview, wherein it was noted that the Veteran's PTSD was productive of "mild psychological distress." In March 2012 the Veteran was seen for another VA examination to determine the severity of his PTSD. It was found that the Veteran experienced occupational and social impairment due to "mild or transient" symptoms. The Veteran was able to maintain healthy social relationships, though admittedly he experienced hypervigilance and was unable to handle crowds. The Veteran denied experiencing panic attacks, and reported that his work performance was "fine" and that his PTSD did not impact his ability to work. A June 2016 VA examination showed that the Veteran's PTSD did worsen slightly. At that time, the Veteran was experiencing panic attacks around once per week, which led to an occasional decrease in work efficiency. The primary symptoms of the Veteran's PTSD, other than weekly panic attacks, were anxiety, suspiciousness, hypervigilance, and a chronic sleep impairment. However, the Veteran was able to maintain social and occupational relationships which he described as "generally good." The Veteran enjoyed hobbies such as gardening and golf, and was still working part time after retiring as a metal worker in the mid-1990s. At his December 2017 Board hearing, the Veteran stated that he had panic attacks "at least" once a month. The Veteran described his panic attacks as "severe," and when he had them at work he was allowed to "take a break" until they passed. The Veteran's PTSD also, as noted above, caused chronic sleep disturbances, which in turn made the Veteran "angry," which was something he "took ... out on the kids and wife." Furthermore, the Veteran was unable to handle crowds and "didn't want to be around other people." However, with medication, the Veteran stated that his condition was "a little better." The Veteran was seen for another VA examination in February 2021, pursuant to the Board's January 2020 remand directives. The examiner found that the Veteran's psychiatric disability was productive of an occasional decrease in work efficiency. The Veteran was "sometimes irritable," and caused arguments and disagreements with his wife. He had a few friends, avoided crowds, and was hypervigilant. The Veteran had stopped working in 2018, primarily due to the effects of his non-service-connected obstructive sleep apnea. Overall, the Veteran's most prominent PTSD symptoms were anxiety, suspiciousness, sleep impairment (separate from his sleep apnea), hypervigilance, and panic attacks that occurred between two to four times per week. The Veteran has argued that his irritability, impaired judgement, poor impulse control, and a difficulty in maintaining effective relationships are several factors that warrant a rating in excess of 50 percent. The Board notes that the Veteran has been married twice, with both marriages lasting over 20 years. The Veteran's first marriage purportedly did not end due to anything the Veteran did. The Veteran stated that he has "2 to 3" "little arguments" a week with his wife, but they are "not too serious." Overall, his relationship is "good." The Veteran also has a "few" friends with whom he socializes with. While the Board does not discount the fact that the Veteran's psychiatric condition causes interpersonal problems, the evidence shows that the Veteran is capable of maintaining effective interpersonal relationships. The body of the Veteran's medical evidence shows that there is no impairment of the Veteran's judgement, nor is his impulse control negatively affected. The Board finds that a 50 percent disability rating for the Veteran's PTSD is the appropriate rating in this case. This is based on the fact that the Veteran's frequent panic attacks are productive of functional impairment in his occupational and social relationships, and overall approximates occupational and social impairment with reduced reliability. A higher 70 percent rating is not warranted as there is no evidence of, nor does the Veteran complain of, impaired judgement, memory loss, disturbances of motivation and mood, difficulty adapting to stressful circumstances, obsessional rituals, near-continuous panic or depression, impaired impulse control, spatial disorientation, or any other combination of symptoms that are productive of occupational and social impairment with deficiencies in most areas. The Board notes that throughout the entire appeal period the Veteran denied homicidal and/or suicidal ideation. 2. Entitlement to a TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from a common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In determining whether the Veteran is entitled to TDIU, neither the Veteran's non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341 (a). A TDIU rating is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The essential issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a "living wage"). 38 C.F.R. § 4.16 (b); Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other Veterans having the same compensation rating. The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As of November 26, 2010, the Veteran has had a 50 percent disability rating due to his service-connected psychiatric disorder. The Veteran's tinnitus was granted a 10 percent disability rating as of December 17, 2018, bringing his combined disability rating to 60 percent. He has also established service connection for hearing loss assigned a noncompensable rating. The Board finds that at no point in the appeal period does the Veteran meet the schedular requirements for a TDIU. The remaining question is whether referral for extraschedular consideration is appropriate. In cases where the Veteran does not meet the schedular requirements for a TDIU but is unable to secure or follow a substantially gainful occupation by reason of service-connected disability, rating boards should refer the issue of entitlement to an extraschedular TDIU to the Director of Compensation and Pension Service for extraschedular consideration. The Board notes that the Veteran has occupational training as a welder, and worked as a metal worker from the mid-1950's to 1994. After his retirement the Veteran worked as a security guard until 2018. Setting aside the fact that the Veteran's PTSD was not found to be service-connected until 2010, the claims file does not make the contention, nor does the Veteran himself allege, that his retirement in 1994 was due to his acquired psychiatric condition. It was not until around 2010 that the Veteran's psychiatric disability was manifested by symptoms contemplated by a compensable rating, and not until around 2016 that the Veteran's panic attacks began to affect his ability to work. However, the evidence shows that the Veteran and his employer reportedly were able to accommodate his panic attacks, specifically by allowing him to take breaks for the five to ten-minute periods where the attacks were affecting him. In a February 2020 VA Form 21-4192, the Veteran reported that his disability did not cause him to lose any hours at work. The Board notes that a March 2020 VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) of record does not appear to have been completed by the actual employer and it is noted on the unsigned form that the Veteran's breaks were due to him "not being able to stand for long periods of time," and that the Veteran's "old age" impacted his ability to work, along with "depression" (which the Board is interpreting as being analogous to the Veteran's service-connected PTSD), and the fact that his eyesight and hearing were "going bad." It was reported that the Veteran had worked 8 hours per day, 40 hours per week in Maintenance Security and last worked full-time in May 2018 although, again, this form does not appear to have been actually completed by the Veteran's last employer. In a February 2021 VA examination, the Veteran stated that his obstructive sleep apnea interfered with his sleep, which eventually led to the Veteran having to "let [his] job go because he could not perform duties due to lack of sleep." The AOJ determined that the Veteran's former employer had undergone a company name change which explained why the AOJ had been unsuccessful in contacting that employer for a completed VA Form 21-4192. The AOJ subsequently did obtain a VA Form 21-4192 from the re-named company in June 2020. The company indicated that the Veteran had been employed by them from December 2007 to November 2017 as a security officer and that he had earned almost $25,000 in the 12 months preceding the last date of employment. He was noted to have worked 8 hours per day, 40 hours per week and in response to the question as to whether any concessions were made to the Veteran by reason of age or disability, the response was "N/A". He was noted to have resigned his position. The Board notes further that the Veteran has also reported that another concession granted to the Veteran was the ability to work more or less alone, as at his December 2017 Board hearing the Veteran did note that he preferred to work alone due to his irritability and other effects of his PTSD. As for the reason that the Veteran left his recent employment, the Veteran himself noted that he "resigned" The Veteran, through his representative, put forward the argument that the Veteran's post-retirement employment was marginal. The Veteran, as shown by his own submissions and statement from his previous employer, worked a full-time schedule of 40 hours per week at his last job which ended in November 2017. In the last 12 months prior to his resignation, the Veteran earned almost $25,000 through his full-time work. See VA Form 21-4192 dated in June 2020. Based on the above, the Veteran's full-time employment was not marginal because his annual income was above the poverty line. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment generally shall be deemed to exist 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. Id. The poverty threshold for one person in 2018 was $12,784.00. Given that the Veteran worked a full-time schedule and earned almost $25,000 in the year preceding his resignation, his employment is considered substantially gainful as his annual income is above the poverty threshold for one person. Further, there is no indication that the Veteran's employment is protected or sheltered in nature such that marginal employment may be found on a facts-found basis. Although the Veteran argues that this is the case, he points to no facts that support such a conclusion. Notably, the Veteran's most recent employer did not report that any concessions were made to the Veteran by reason of age or disability. The Board finds that the majority of medical evidence, as well as lay evidence from the Veteran himself and his previous employers, show that the Veteran's non-service-connected conditions such as obstructive sleep apnea, inability to stand or walk, and poor eyesight were the main reasons the Veteran was unable to continue working. Regarding the Veteran's hearing loss, by the Veteran's own admission, the biggest impact his hearing loss has is his ability to hear other people in conversations, which causes him to request that others repeat themselves frequently. However, there is no evidence in the claims file that shows any significant impact on the Veteran's ability to obtain and maintain substantially gainful employment from his hearing loss disability. Based on the above, the Board finds that the Veteran's disability ratings for the period of the appeal fully account for any functional impairment his disabilities cause. As such, a referral to the Director, Compensation Services for extraschedular consideration is not warranted. As the Veteran does not meet the schedular requirements for a TDIU, nor is referral for extraschedular consideration warranted, the Veteran's claim for entitlement to a TDIU is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.