Citation Nr: 21041905 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 19-08 521 DATE: July 10, 2021 ORDER Entitlement to a rating greater than 70 percent for unspecified trauma and stressor related disorder is denied. Entitlement to a total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's unspecified trauma and stressor related disorder symptoms did not more closely approximate total occupational and social impairment. 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 a disability rating greater than 70 percent for unspecified trauma and stressor related disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.130, Diagnostic Code 9413 (2020). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) from a September 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in January 2019 and a Statement of the Case (SOC) was issued in February 2019. The Veteran perfected an appeal by submitting a timely VA Form 9 in March 2019. The issue was previously before the Board. In April 2021, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to readjudicate the remanded issues on appeal and to issue a Supplemental Statement of the Case (SSOC). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in an SSOC issued in April 2021. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. General Rating Formula for Mental Disorders The Veteran's unspecified trauma and stressor related disorder has been rated under the criteria contained in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9413. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned when there is objective evidence demonstrating 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 worklike setting); inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or 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. See Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that 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 symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Court) held 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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 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." Id. at 118. The Federal Circuit indicated that "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). 1. Entitlement to a disability rating greater than 70 percent for unspecified trauma and stressor related disorder In October 2020, the Veteran's attorney contended that the Veteran was entitled to a 70 percent rating for his unspecified trauma and stressor related disorder. Specifically, the Veteran reported multiple panic attacks every week, memory problems, avoiding people, inability to go out, lack of concentration, lack of contact between himself and other people, to include his family. The Veteran is currently in receipt of a 70 percent rating under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413. The Veteran was afforded a VA examination in December 2020. He was diagnosed as having unspecified trauma and stressor-related disorder, moderate recurrent major depressive disorder, and specific phobia of the natural environment and heights. The symptoms of the disorders were found to overlap, and the examiner opined that the individual impact of the disorders could not be determined. Overall, the examiner opined that the symptoms resulted in occupational and social impairment with reduced reliability and productivity that would warrant a 50 percent rating. The Veteran reported working as a traffic homicide investigator for 10 years, a purchasing manager for 15 years, and a sales manager for 23 years. The Veteran denied having any problems on these jobs other than breaking the "blue code of silence" and resigning from the traffic investigator position. The Veteran was hospitalized in 2013 when he did not "feel life was worth living" and has not worked since retiring in 2013. He also denied that his current mental health conditions caused him any problems when he was working, but that it would be difficult for him to get to work as he is anxious about driving. The Veteran denied recent hospitalizations for mental health. The examiner noted symptoms of: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and neglect of personal appearance and hygiene. The examiner, however, noted that the Veteran's appearance evidenced "an adequate level of grooming and hygiene" and that the Veteran denied active suicidal or homicidal ideation. In January 2021, the Veteran stated that he contemplated suicide in 2013 while writing his autobiography and was hospitalized. After asking his employer if his mental hospital bill was covered under his insurance, the Veteran was fired. The Veteran also stated that he felt hopeless and had thoughts of suicide. In February 2021, the AOJ notified the Veteran that his VA Form 21-4142 was missing and attached the Veteran's submitted VA Form 21-4142a. The Veteran then submitted a completed VA Form 21-4142 in February 2021. Later that month, medical treatment records from a private provider from October 2013 to May 2015 were added. In October 2013, the Veteran had appropriate grooming, coherent speech, euthymic mood, no psychotic behaviors, negative motor movements, fair insight and judgment. The Veteran denied suicidal or homicidal ideations, hallucinations, and reported that he was working as an independent consultant. In January 2014, he denied depression, anxiety, suicidal or homicidal ideations despite losing his mother. In May 2014, the Veteran denied hallucinations, paranoia, suicidal or homicidal ideations, and illicit drug use. In October 2014, the Veteran reported that he was doing "okay" and that he wrote a book to be published. In May 2015, the Veteran reported that he was "doing good in the past 6 months" and that his medications and religious faith are enabling him to function and relate better with others. In February 2021, the Veteran reported that another private medical practitioner was awaiting the AOJ's contact to send its treatment records from May 2013. These records were added later that month, showing the Veteran's hospitalization for "struggling with different aspects of life including retiring from work and the relationship issues at home." The Veteran reported crying spells and suicidal threats at the time of admission but denied such ideations at discharge. VA Medical Center treatment records show that the Veteran reporting that he enjoyed retirement in February 2021 and that he showed appropriate grooming, hygiene, appearance, and dress. His memory was within normal and was oriented, and there was nothing remarkable about the Veteran. In April 2021, the Board remanded the Veteran's claims as the AOJ did not consider the newly added private treatment records. In an April 2021 SSOC, the AOJ continued its denials. After reviewing the evidence of record, the Board finds that the Veteran's disability picture is best approximated by the criteria for a 70 percent evaluation. There is no evidence of record, lay or medical, showing symptoms of: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Veteran consistently denied hallucinations; has not reported grossly inappropriate behavior; was not a persistent danger of hurting self or others; did not report intermittent inability to perform activities of daily living and maintained appropriate hygiene; was oriented to time or place; and did not report memory loss for names of close relatives, own occupation, or own name. Significantly, the Veteran's symptoms have not more nearly approximated total occupational and social impairment. 38 C.F.R. § 4.7. The evidence does not show total occupational and social impairment due to unspecified trauma or stressor related disorder. There is evidence of significant occupational impairment due to his service-connected psychiatric disability. However, there is no evidence of total social impairment. The Veteran is highly functional, able to write a book, and maintains relationships through his faith and family. As such, total occupational and social impairment was not demonstrated by the evidence. Therefore, in view of the evidence of record, the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 70 percent. Of note, although the Veteran may exhibit some symptoms of a higher rating, a holistic review of his symptoms demonstrates that his symptoms are better categorized by the 70 percent rating. See Vazquez-Claudio, 713 F.3d at 115-17. Moreover, some of the symptoms listed in the diagnostic code for a higher rating have not been shown at all. In summary, the most probative evidence reflects that the criteria for a rating in excess of 70 percent for unspecified trauma and stressor related disorder have not been met. See 38 C.F.R. § 4.130, DC 9413. 2. Entitlement to a TDIU The Veteran contends that his service-connected disability rendered him unable to obtain and maintain gainful employment since 2013. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless 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 service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Regardless, 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: 1) the veteran's history, education, skill, and training; 2) whether the veteran has the 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, considering factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, 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 (2019). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or 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 maintain 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. Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a TDIU. After retiring in 2013 following his mental health hospitalization, the Veteran consistently reported that he is enjoying retirement and that he was working as an independent consultant in October 2013, a few months after his discharge from the mental health hospital in May 2013. The Board also notes that the Veteran was let go from his job, not because of his inability to perform at the job, but rather because he inquired whether mental health charges were covered by his health insurance. The Veteran also reported that he had written a book to be published at the time of retirement that contributed to his hospitalization, but has consistently reported since that he was doing better. Put another way, the Veteran was able to perform sedentary work such as writing a book shortly after discharge from the mental hospital and his symptoms improved since, even stating that he may be "cured" in February 2020. The Veteran's work history includes working as a traffic homicide investigator for 10 years, a purchasing manager for 15 years, and a sales manager for 23 years. In December 2020, the Veteran reported that he "excelled professionally," including at the time of retirement in 2013 and denied that his current mental health conditions caused him any problems when he was working. The Veteran reported that it would be difficult for him to get to work as he is anxious about driving and listed being social difficulties and his anxiety of crowds as being additional barriers to employment. However, he admitted that these factors were "irrelevant," as he had not worked in 7 years and as he was 77 years old, indicating that factors outside of the barriers created by the service-connected disability were the cause of his unemployment. There is also no medical evidence of record of the Veteran having any physical difficulties that prevent him from obtaining and maintaining gainful employment. In sum, the Board finds that the totality of the evidence demonstrates that the Veteran was not unable to obtain and retain substantially gainful employment, based solely on service-connected disabilities. The records suggest that, had the Veteran not been 77 years old, he would have sought, obtained, and maintained employment. Therefore, although the Veteran met the schedular requirement for TDIU throughout the entire period on appeal, he is not entitled to TDIU. Accordingly, the Board finds that the preponderance of the evidence is against the claim of TDIU, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49. Therefore, the appeal is denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Yun, Harold Seokoh 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.