Citation Nr: 22013590 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-44 037 DATE: March 10, 2022 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) (previously rated as insomnia disorder), prior to April 22, 2019, is denied. Entitlement to a disability rating of 70 percent for PTSD from April 22, 2019 to October 13, 2021, is granted. Entitlement to rating in excess of 70 percent for PTSD, from October 14, 2021, is denied. Entitlement to a total disability rating for individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to April 22, 2019, the Veteran's PTSD was not productive of functional impairment comparable to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. 2. From April 22, 2019 to October 13, 2021, the Veteran's PTSD symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 3. From October 14, 2021, the Veteran's PTSD has not been manifested by symptoms analogous to total and social impairment. 4. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD, prior to April 22, 2019, have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a 70 percent rating for PTSD from April 22, 2019 to October 13, 2021, have been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for a rating in excess of 70 percent for PTSD, from October 14, 2021, have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 4. The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from February 1996 to June 2009. For his meritorious service, he was awarded (among other decorations) the Navy/Marine Corps Achievement Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to TDIU was raised during the course of the appeal. In January 2020, the Veteran provided testimony at a Board hearing. A transcript of the hearing is of record. In February 2020, the Board remanded the claim for a rating in excess of 30 percent for PTSD (previously rated as insomnia disorder). In July 2020, the RO increased the disability rating for PTSD to 50 percent, effective June 23, 2014. In August 2021, the Board once again remanded the claim for an increased rating for PTSD for further development. The Board finds that the remand directives have been substantially complied with (a current VA examination has been obtained). In November 2021, the RO increased the disability rating for PTSD to 70 percent, effective October 14, 2021. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 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. 38 C.F.R. § 4.7. 1. PTSD The Veteran's PTSD has been assigned an initial 50 percent rating prior to October 14, 2021. The RO increased the disability rating to 70 percent effective the date of an October 14, 2021 VA examination report when it was determined that entitlement arose. The Veteran's PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. However, 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). A 50 percent evaluation 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted where 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 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, or 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; and the inability to establish and maintain effective relationships. A maximum 100 percent evaluation is for application when there is 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. Initial rating in excess of 50 percent prior to April 22, 2019 In an August 2014 VA examination report, the Veteran's symptoms were reported as the following: depressed mood, suspiciousness and chronic sleep impairment. Additionally, he displayed the following: rumination, some anxiety in certain situations, avoidance of intimacy, sexual performance/arousal issues, sadness, anger, irritability, avoidance of male physicians and significant issues with trust. During the examination, the Veteran was oriented to person, place and time. There was no psychosis. His insight was fair, and his judgment was good. He did not display any suicidal or homicidal ideation. His mood was depressed and teary. His affect was within normal limits. The examiner determined that the Veteran's PTSD was manifested by 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. In a December 2018 VA examination report, the Veteran reported that he was married although his relationship was distant. He was no socially active outside of his family. He avoided crowds and was highly vigilant in public. He was suspicious of men in general. He remained employed and enjoyed working. His symptoms were reported as the following: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. During the examination, the Veteran was noted to have adequate grooming and hygiene. He was cooperative with the examiner. His psychomotor activity was normal. His speech was normal. His mood was somewhat anxious. He denied suicidal and homicidal ideation. He denied hallucinations and/or delusions. This thought process was linear. His memory and concentration were intact. His judgment and mood were good. The examiner determined that the Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The evidence does not demonstrate that the Veteran meets the criteria for an initial rating in excess of 50 percent prior to April 22, 2019, because his PTSD was not productive of occupational and social impairment with deficiencies in most areas as contemplated by a higher, 70 percent disability evaluation. While the Veteran expressed feelings of suspiciousness and vigilance, the evidence does not reflect that he experienced obsessional rituals, near-continuous panic or depression which affected his ability to function independently, appropriately, or effectively, spatial disorientation, or neglect in personal appearance or hygiene. In this regard, the evidence showed that the Veteran reported being employed and that he enjoyed working. Likewise, a 100 percent rating is not warranted prior to April 22, 2019. There was no evidence that the Veteran had persistent impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own names. Accordingly, as total occupational and social impairment is not shown prior to April 22, 2019, the criteria for a 100 percent schedular evaluation are not met. From April 22, 2019 to October 13, 2021, a 70 percent rating is warranted The Veteran was afforded a VA PTSD and VA mental disorders (other than PTSD) on April 22, 2019. As the findings on both examinations are essentially similar, they will be addressed together. The Veteran reported taking a leave of absence from his employer because he was having more trouble with anxiety. His symptoms were reported as the following: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work like setting. The Veteran was mildly anxious at the examination. His speech was normal in rate and rhythm. His eye contact was fair. His thoughts were logical, and goal directed. He denied suicidal ideation. His memory, insight and judgment were intact. He did not appear to pose any threat of danger or injury to himself or others. The examiner determined that the Veteran's PTSD was manifested by 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. As noted above, the evidence of record at the April 22, 2019 examinations, reflect that the Veteran experienced an increase in his psychiatric symptoms. He reported taking a leave of absence from his employment due to increased anxiety. Moreover, the examiner noted that the Veteran's symptoms now included difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work like setting. "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). As such, the Board finds that the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected PTSD from April 22, 2019 to October 13, 2021. However, the criteria for a disability rating of 100 percent have not been met or more nearly approximated at any time from April 22, 2019 to October 13, 2021. The evidence shows no symptoms of persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or memory loss for names of close relatives, own occupation, or own name. From April 22, 2019 to October 13, 2021, the record does not at any point reflect both total occupational and social impairment. Rating in excess of 70 percent from October 14, 2021 On VA examination in October 2021, the Veteran reported that his relationship with his fiancée had ended after eight years. He reported that his relationship with his children was generally good. He had been employed but was currently not working due to his back condition. He reported that he preferred jobs where he could work by himself. His symptoms were reported as the following: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. At the examination, the Veteran was pleasant and cooperative. He became emotional at several appropriate times throughout the evaluation. He did not display any symptoms of mania or psychosis. While he endorsed previous suicidal ideation, he indicated that he felt that he has a responsibility to his children and that he could never do that do them. The examiner determined that the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The evidence does not demonstrate that the Veteran meets the criteria for a rating in excess of 70 percent from October 14, 2021. There was no evidence that the Veteran had persistent impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own names. Accordingly, as total occupational and social impairment is not shown from October 14, 2021, the criteria for a 100 percent schedular evaluation are not met. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which 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, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability 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 or she can find employment. Id. The Veteran has a combined disability rating of 90 percent, with at least one disability rated at 50 percent. As such, the Veteran meets the schedular rating criteria for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Pursuant to Board remand directives, in July 2020 and in September 2021, the Veteran was asked to complete and return a Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) so that VA could adjudicate his TDIU claim. However, the Veteran has not submitted a completed application for TDIU, which is needed to adjudicate his TDIU claim, and as such, the claims file does not show that the Veteran is unemployed and unable to obtain or maintain substantially gainful employment. The Board has twice directed that the Veteran be provided this form, and a review of his claims file reflects that the RO provided this form in July 2020 and September 2021. In pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim, VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). While not returning this form does not prevent the Board from adjudicating a TDIU claim, it does make the Board's task more difficult, as there is a lack of information regarding the particular elements to prove this claim. The Veteran's most recent VA examination from October 2021 reflects that he was employed at Boeing from 2011 to 2018, and that since that time has either been employed or been seeking employment. Again, absent further specific information from the Veteran, the Board is not able to discern whether the Veteran's employment following 2018 has been gainful, or for what periods the Veteran's employment ran. In the end, between the lack of information from the Veteran and his representative, and the evidence from the Veteran's VA examinations showing that he has either been working or has been seeking work during the course of the entire appeal period, the Board is not able to conclude that the Veteran's service-connected disabilities, either singularly or in concert, have precluded his ability to secure or follow a substantially gainful occupation. Accordingly, a TDIU, is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.