Citation Nr: 21042352 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-26 731 DATE: July 12, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to October 5, 2017 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 5, 2017 is denied. FINDINGS OF FACT 1. Prior to October 5, 2017, the Veteran's PTSD was manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The Veteran's PTSD was not manifested by symptoms resulting in total occupational and social impairment. 2. Prior to October 5, 2017, the competent and probative evidence of record does not demonstrate the Veteran was unable to obtain or maintain employment solely due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial increased disability rating of 70 percent, but no higher, for PTSD prior to October 5, 2017 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for entitlement to TDIU prior to October 5, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to June 1964 and November 1990 to May 1991. He only appealed that part of the January 2020 Board of Veterans' Appeals (Board) decision that denied entitlement to an initial rating greater than 30 percent for PTSD prior to October 5, 2017. In November 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated, in part, and remanded this issue from the January 2020 Board decision. The claim is now back before the Board. Increased Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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 Veteran contends his service-connected PTSD was more severe than his 30 percent initial rating prior to October 5, 2017 would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9411. According to 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is warranted for 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity 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 effective work and social relationships. Id. 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 work-like 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 name. Id. For a PTSD rating, the Board must conduct a holistic analysis that considers the severity, frequency, and duration of all associated symptoms with the Veteran's level of occupational and social impairment and not solely focus on the examiner's assessment at the moment of an examination. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.126(a). Then, the Board must determine whether the Veteran's symptomatology caused a level of impairment in "most areas" applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). In July 2016, a VA examiner noted the Veteran had symptoms of chronic sleep impairment, depressed mood, anxiety, and suspiciousness. She also noted the Veteran had "irritable behavior and angry outbursts" and hypervigilance. At the examination, the Veteran stated he overdosed on "sleeping pills in about 2011" and "wishes he could be a better provider for his family," but the examiner did not address whether the Veteran had current suicidal ideation. Although the July 2016 VA examination is probative, the information provided in the report is sparse. The record also reflects the Veteran has not received psychiatric treatment for his PTSD during the appeal period. See October 2017 VA examination report. Fortunately, in July 2017, the Veteran testified before a Decision Review Officer (DRO) regarding his PTSD symptoms, among other issues, and provided a more thorough description of his psychiatric symptoms. After a review of this medical and lay evidence of record, discussed in detail below, the Board provides the Veteran the benefit of the doubt and finds his psychiatric symptoms warrant a 70 percent initial disability rating, but no higher, prior to October 5, 2017. Socially, the Veteran reported he was in his second marriage, lived with his wife and youngest granddaughter during the appeal period, and had four adult children. See July 2016 VA examination report; see also July 2017 DRO hearing transcript at 25. The Veteran reported he and his wife have slept in separate rooms for "several years" mainly due to his "night terrors." Id. at 23. While the Veteran reported to have a "couple of friends" and noted he "may attend church," he testified that he avoids crowds and "stays isolated at friend and family gatherings." See July 2017 DRO hearing transcript at 22; see also July 2016 VA examination report. For example, when the Veteran traveled to a granddaughter's graduation in Boston he sat with his brother at the perimeter of the party, "nowhere near" people. Id at 22. He also testified he goes to places like Walmart in the "early morning or late at night" when it is the least crowded. Id. Thus, although the record reflects the Veteran's PTSD symptoms make it difficult for him to establish and maintain relationships as he preferred isolation to crowds, the record does not reflect he was unable to do so. He therefore did not meet the criteria for total social impairment. The July 2016 VA examiner noted the Veteran had irritable behavior with angry outbursts and the record reflects this more closely meets the criteria for a 70 percent rating, namely impaired impulse control. For example, the Veteran testified he "yelled and cussed" at his last boss until he was sent home. See July 2017 DRO hearing transcript at 31. In July 2017, the Veteran stated his current coworkers "stay away from [him] because he "gets agitated very easily." Id. The October 2017 VA examination report noted the Veteran was "let go" from his most recent position "about four weeks ago" due to "verbal outbursts directed towards a customer" and the Veteran "brought a weapon" to the jobsite. Thus, the Board finds the Veteran's impaired impulse control meets the criteria for a 70 percent rating as it impaired his judgment, mood, thinking, and work. The record does not, however, reflect the Veteran had grossly inappropriate behavior, one of the criteria for the next highest rating, 100 percent. See July 2016 VA examination report. As noted above, the Veteran reported suicidal ideation. See July 2017 DRO hearing testimony at 21. However, the record does not reflect the Veteran is a persistent danger to himself or others, another criterion considered for a 100 percent rating. Also, the Veteran testified that, at times, he will not shower or shave for weeks despite being a "clean person" because of his PTSD symptoms. Id. at 28-29. Despite this contention, the July 2016 VA examiner found the Veteran competent to manage his financial affairs and the record does not reflect the Veteran was unable to perform activities of daily living. Additionally, the record reflects the Veteran had memory loss and will forget the name of "acquaintances and friends," but it was not so severe that he forgot his own name. See July 2017 DRO hearing transcript at 29-30 ("short term" memory loss). There is no indication the Veteran was unable to perform activities of daily living (ADLs). Finally, the record reflects the Veteran had no gross impairment in thought or communication, was properly oriented during the appeal, and there is no evidence of any delusions or hallucinations. See, e.g., July 2016 VA examination report. Overall, the record reflects his PTSD symptoms impaired his work, judgment, thinking, and mood, but they did not reach the severity, duration, or frequency required for a rating greater than 70 percent. In summation, the Veteran's psychiatric symptoms rendered it difficult for him to establish and maintain effective relationships. He noted suicidal ideation with impaired impulse control during the appeal period, but not to the extent he was a persistent danger to himself or others. His PTSD symptoms also created difficulty adapting to stressful circumstances, such as work, but he did not have grossly inappropriate behavior or complain of delusions or hallucinations during the appeal period. He was properly oriented and did not exhibit gross impairment in thought or communication. Finally, the Veteran's memory loss was not so severe he could not remember his own name or hardwired information, and he retained the ability to perform ADLs. Thus, while the Veteran's symptoms were undoubtedly severe, they did not rise to the rating criteria for total social and occupational impairment, the next highest rating. As such, the Board grants entitlement to an increased initial rating of 70 percent, but no higher, for PTSD prior to October 5, 2017. TDIU The Veteran filed a claim for entitlement to TDIU during the pendency of his appeal for an increased initial rating for PTSD. See September 2020 VA Form 21-8940. When a veteran appeals for a higher disability rating and it is coupled with evidence of unemployability, the issue of entitlement to TDIU is raised for the entire appeal period. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). As noted above, the November 2020 JMPR vacated and remanded entitlement to an increased initial rating for PTSD solely prior to October 5, 2017. As such, only the issues of entitlement to TDIU prior to October 5, 2017 shall be considered by the Board herein. The Board also notes the prior January 2020 Board decision remanded the issue of entitlement to TDIU, with numerous other issues, for further development by the AOJ. In May 2021, the AOJ denied entitlement to TDIU and the Veteran subsequently filed a June 2021 VA Form 20-0996, for higher-level review, which has not yet been completed by the AOJ as of the date of this decision. Thus, the issue of entitlement to TDIU from October 5, 2017 is still being continuously pursued by the Veteran and is not before the Board at this time. 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. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has met the schedular requirement for entitlement to TDIU during the entire appeal period. See February 2021 rating decision codesheet. Prior to October 5, 2017, the Veteran's service connected disabilities included: (1) PTSD rated at 70 percent, (2) lumbar degenerative disc disease rated at 20 percent, (3) left lower extremity radiculopathy rated at 20 percent, and (4) tinnitus, a left shoulder condition, and a right shoulder condition each rated at 10 percent disabling, among other noncompensable disabilities. Therefore, the narrow issue before the Board is whether the Veteran was unable to secure or follow a substantially gainful occupation due to these service-connected disabilities. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board will consider the following factors: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). "Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Additionally, employment "in a protected environment" is not sufficient to establish substantially gainful occupation. See 38 C.F.R. § 4.16(a). Although the meaning of "employment in a protected environment" is not clear from the plain language, such employment frequently involves accommodations for the employee. See Cantrell v. Shulkin, 28 Vet. App. 382, 390-391 (2017). The record reflects the Veteran earned his GED certificate and served in the Marines with the military occupational specialty (MOS) of shore fire control party operator from June 1960 to June 1964. He then went on to serve in the Air Force and National Guard as a services specialist. Most recently, the Veteran reported to work fulltime as an auto parts salesman and driver from October 2006 to September 22, 2017. See South Carolina Vocational Rehabilitation Department (SCVRD) records. The Veteran alternatively stated his last day of substantial employment was September 18, 2017. See September 2020 VA Form 21-8940. The record reflects the Veteran was fired from this sales position due to a verbal outburst and increased anger. See October 2017 VA examination report. However, on the Veteran's October 2017 SCVRD application for a driver position, the Veteran noted he was already working thirty-four hours a week at another auto parts store as of early October 2017. As such, prior to October 5, 2017, the record reflects the Veteran was substantially employed at a fulltime position until some date in late September 2017; then, he immediately secured substantially gainful employment in early October 2017. Although the record suggests the Veteran was fired in September 2017 due to his PTSD symptoms and he reportedly "took approximately four weeks off" in 2017 because his boss "told [him] to take some time" after the Veteran yelled at him, the evidence reflects the Veteran secured and maintained substantial employment during the appeal period despite his service-connected disabilities. See July 2017 DRO hearing testimony at 31; see also October 2017 VA examination report. Additionally, the record does not suggest, and the Veteran does not contend his employment at the auto parts stores were marginal, as he reported to work at least thirty-four hours per week. See SCVRD records. There is also no evidence to suggest his work was in a protected work environment. Additionally, the Veteran reported he did not become too disabled to work until September 2017. See September 2020 VA Form 21-8940. The Board notes a September 2020 vocational consultant opined that the Veteran was "at least as likely as not" unemployable as of October 2015. However, the Board finds this opinion inadequate for the time period prior to October 6, 2017 as the consultant was asked to consider the Veteran's "paresthesias of both hands," for which the Veteran is not service connected. Additionally, the consultant noted he was also asked to consider "other limitations" that prevented employment, but these limitations were not elaborated upon further. Finally, the consultant notes the Veteran's PTSD symptoms described in the July 2016 VA examination would prevent the Veteran from sustained employment, but the record reflects the Veteran was maintaining sustained employment at the auto parts store for years despite these severe symptoms. See SCVRD records. Ultimately, the responsibility for making a TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). Thus, the Board finds the medical and lay evidence reflects the Veteran's service-connected disabilities did not prevent employment prior to October 5, 2017 as the record reflects the Veteran was substantially employed until late September 2017 and he immediately secured substantial employment the next month. (Continued on the next page) Thus, the Veteran is not entitled to TDIU prior to October 5, 2017 as he was gainfully employed and there is nothing of record to imply his employment was in a protected environment or that his employer offered accommodations for his service-connected disabilities. See Cantrell v. Shulkin, 28 Vet. App. 382, 390-391 (2017). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.