Citation Nr: 22014238 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 14-30 104 DATE: March 11, 2022 ORDER A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating due to individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The frequency, and duration of the Veteran's PTSD symptoms do not more closely approximate occupational and social impairment with deficiencies in most areas. 2. It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation throughout the appeal period. 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. §§ 4.1, 4.3, 4.7, 4.124A, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a TDIU have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marines from February 1968 to December 1969, including combat service in Vietnam and his decorations include the Purple Heart Medal. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision. The PTSD claim was previously remanded by the Board for the submission of a Statement of the Case in June 2013, and the PTSD and TDIU claims were remanded in July 2019 to afford the Veteran a contemporaneous VA examination. They have been returned to the Board. Increased Rating 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 resulting from disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. The Veteran contends that his PTSD is more disabling than the current 50 percent rating reflects. See July 2010 Veteran's statement. The Veteran filed the instant claim for increase in July 2010. Service connection and the 50 percent rating have been in effect from July 2006. Upon review of the evidence, with specific emphasis on the sustained level of impairment documented in the treatment and examination record and in lay statements, in conjunction with the observations made by the VA examiners in June 2015 and November 2019, the Board finds that the evidence persuasively weighs against a rating in excess of 50 percent at any time. The Veteran's 50 percent rating is assigned under Diagnostic Code 9411. 38 C.F.R. § 4.130. The disability is rated using the General Rating Formula for Mental Disorders (General Formula). Under that Formula: A 70 percent disability 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. 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, warrants the maximum, 100 percent disability rating. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Relevant to this discussion, a VA examination in September 2010 reflects the Veteran was receiving PTSD treatment through VA to include medication and psychiatric care. He was described as socially isolated, never married but with grown children. He had not worked in many years. He was alert and oriented, friendly and cooperative. He was anxious and hyper-startled. There were no homicidal or suicidal ideations, plans or impulses. His judgment was intact. His memory was decreased. Fund of knowledge was average. He reported no delusions or hallucinations or psychosis. A VA examination in June 2015 reflects the Veteran was receiving PTSD treatment through VA to include medication and psychiatric care. His symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood and inability to establish and maintain effective relationships. The Veteran described himself as not a hermit but someone who prefers a socially reclusive lifestyle. He felt that people misunderstood him because of this. His longest employment was 20 years with Nestle Company until his retirement in 2000. He remarked that he worked night shift because he did not get along with people. He reported he worked for an additional three years from 2001 to 2003 loading trucks. He has been unemployed since around 2003 and he has been living a solitary existence. He summarized his daily routine as fixing breakfast, listening to radio, fixing lunch, watching television for the remainder of the day, fixing dinner, and going to bed. The examiner assessed him as capable of sedentary occupation and in a socially accommodated environment. The examiner assessed occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. A November 2019 VA examination reflects there was occupational and social impairment with reduced reliability and productivity. It was noted he was now retired but was employed for about twenty years as a machine cleaner/mechanic for Nestle and another ten as a shuttle service worker for the car rental/airline industry. Symptoms noted were depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationship, and difficulty adapting to stressful circumstances, including work or a work like setting. Mental status examination revealed no evidence of a psychotic process. The Veteran did not report experiencing any suicidal or homicidal ideation or any intent to carry out such an act. In terms of functioning level, the November 2019 examiner noted the Veteran seemed to be exhibiting mild limitations in the areas of remember or applying information. In addition, he appeared to be exhibiting moderate limitations in relating to and working with supervisors, co-workers, and others. Furthermore, he appeared to be exhibiting mild limitations in the ability to concentrate, persist, or maintain pace. Finally, he appeared to be exhibiting moderate limitations in trying to adapt and manage oneself. The record reflects that the Veteran has repeatedly denied any suicidal ideation or plan, and that he has been repeatedly assessed as not being a suicide risk. Neither the treatment records, the VA examination reports discussed above, nor the Veteran's assertions suggest manifestations in excess of the 50 percent criteria. That is, the examiners and the treatment record reflect findings that are overwhelmingly consistent with not more than the 50 percent rating criteria. Indeed, the VA examiner in 2015 found occupational and social impairment consistent with the 10 percent rating criteria. The examiner in November 2019 found impairment consistent with a 50 percent rating. The 2010 VA examination reflects symptoms and complaints that cannot reasonably be viewed as in excess of those in 2015 or 2019. The Veteran has not actually described symptoms that suggest a rating in excess of 50 percent. VA treatment records dated in July 2020 reflect that the Veteran denied depression, nightmares and homicidal/suicidal ideation. In July 2018, he reported he was alright when asked about his psychiatric status. He stated his mood had been good, and he denied periods of irritability, anger or depression. He was sleeping and denied nightmares. His energy was estimated at 6 out of 10. He had just returned from a family wedding down south and reported he enjoyed the trip. Otherwise, he stated he was not doing much since it turned a little colder. He presented casually groomed with adequate hygiene and grooming. His speech was fluent, with normal rate and volume. Mood was described as "pretty good" with congruent affect. His thought process was linear and goal-directed. There were no homicidal or suicidal psychoses. Insight and judgment were intact. He was continued on his medication. Other treatment records in this time frame reflect that he socialized with other veterans. The Board has applied the "holistic analysis" in assessing the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected mental disorder. Bankhead, 29 Vet. App. at 22. The Board has considered the objective medical evidence, including treatment records and examinations, as well as lay statements. While one of the listed criterion for a 70 percent rating was present in the 2015 examination, the inability to establish and maintain effective relationships, and another one was present in the 2019 examination, difficulty adapting to stressful circumstances, including work or a work like setting, the actual description of his functioning in both examinations reflects the overall level of functioning was consistent with the 50 percent rating and no higher. Also, the Veteran has described symptoms that are wholly consistent with a 50 percent rating throughout the appeal. He has repeatedly described social isolation but has also explained that he likes to keep to himself and this is often misunderstood. He has not manifested any suicidal ideation, disorientation, impaired impulse control or judgement or speech issues indicative of the 70 percent rating or higher. Collectively, the medical record and contentions do not suggest a rating in excess of 50 percent is warranted. The Board has considered all psychiatric symptoms in reaching the above conclusions. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 50 percent rating is warranted. Rather, the evidence persuasively weighs against a 50 percent rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The degree of impairment has remained uniform at 50 percent throughout the appeal period. 2. TDIU is granted. The Veteran contends he is unable to work due to his service-connected disabilities. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability, as are multiple injuries incurred in action. Id. Here, based on the Veteran's combat-injuries, which combine to a single 60 percent rating and thus the Veteran's disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a)(4). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; 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. Factors that may be relevant 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 whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). After a review of the evidence of record, the Board finds that, when resolving any reasonable doubt in the Veteran's favor, the evidence supports awarding TDIU throughout the appeal period. In reaching this determination, the Board emphasizes that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this regard, the Board notes that the Veteran's employment history since service has included working as an order filler, security person and/or shuttle driver which ended in either 2003 or 2006, and a worker for Nestle which ended in 2000. See January 2015 VA Form 21-8940, VA form 21-4192, VA 2015 and 2019 examination reports. He has some high school education. The critical facts in this case are not materially in dispute. In approximately 2006 or slightly earlier, the Veteran ceased working due to his service-connected ailments, with particular emphasis on PTSD from his perspective. His employer at the time, Midwestern Distributors, indicated that he worked from 2001 to October 2006, at which time he retired. No concessions were made to the Veteran due to age ot disability. See VA form 21-4192 received at VA in April 2015. As noted above, the Veteran's service-connected disabilities satisfy the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a) (4) throughout the appeal period. His other service-connected disabilities include combat-related residuals of shrapnel fragment wounds to the left shoulder and left leg, each rated 10 percent, and a noncompensable left eyebrow shrapnel scar. His PTSD is also combat related. The combined rating is 60 percent effective July 1, 2006. As such, all of these service-connected disabilities may be considered one disability as they were incurred in such action. Id. The pertinent evidence of record includes examinations related to PTSD discussed above, as well as reports of VA examinations in 2011 and 2012 for his left shoulder and leg conditions noting pain and limitations based on each of these disabilities. The more recent VA treatment record is replete with reference to complaints related to recurring left shoulder pain. See, e.g., November 2017 and December 2016 VA treatment records noting left shoulder DJD and pain in neck and shoulder area. Historically, Social Security Administration records include a psychological report reflecting that he reported he began experiencing flashing in his left eye which was concurrent with his leaving his last job as an order filler. Also historically, but relevant with regard to occupational functioning, a clinician evaluating him for SSA benefits deemed him capable of not more than simple, unskilled work in May 2007. The November 2019 VA examiner commented, "In terms of functioning level, [the Veteran] seemed to be exhibiting mild limitations in the areas of remembering or applying information. In addition, he appeared to be exhibiting moderate limitations in relating to and working with supervisors, co-workers, and others. Furthermore, he appeared to be exhibiting mild limitations in the ability to concentrate, persist, or maintain pace. Finally, he appeared to be exhibiting moderate limitations in trying to adapt and manage oneself." Based on the evidence of record, including the evidence highlighted above, the Board finds that the evidence is approximately balanced regarding whether the functional impairment associated with his service-connected disabilities, alone, is of such nature and severity as to prevent him from securing or following a substantially gainful employment. The benefit of the doubt doctrine applies. 38 U.S.C. § 5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). In reaching this finding, the Board observes it to be significant that (1) the Veteran's employment history includes the ability to perform a variety of physical and mental tasks related to order filler and security/driver and whatever he did at Nestle prior to 2000, (2) there is limited education and (3) due to his service-connected PTSD, left shoulder and leg, and left eye disabilities, he suffers from significant functional impairment such as to prevent him from securing or following a substantially gainful employment. Thus, the Board finds that TDIU is warranted throughout the appeal period due on his service-connected disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.