Citation Nr: 22017178 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-13 786 DATE: March 24, 2022 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to April 4, 2015, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to April 4, 2015, is denied. FINDINGS OF FACT 1. Prior to April 4, 2015, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 2. Prior to April 4, 2015, the Veteran's service-connected disabilities did not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. Prior to April 4, 2015, the criteria for a rating in excess of 70 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. Prior to April 4, 2015, the criteria for entitlement to a TDIU were not met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1969 to April 1971. These matters come to the Board of Veterans' Appeals (the Board) following multiple rating decisions. In July 2015, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for PTSD and assigned a 10 percent rating effective August 29, 2014. The Veteran appealed, seeking an increased rating. Subsequently, the AOJ granted an initial rating of 30 percent for the Veteran's service-connected PTSD in a March 2017 rating decision. In October 2020, the AOJ granted a 100 percent evaluation for the Veteran's PTSD, effective July 18, 2020. In the same decision, the AOJ found that entitlement to a TDIU was moot, as the Veteran was now in receipt of a total disability rating. These matters were most recently before the Board in September 2021. The Board granted entitlement to an initial 70 percent rating for PTSD from August 29, 2014, to April 4, 2015, and a 100 percent rating thereafter. The Board also granted entitlement to special monthly compensation (SMC) at the housebound rate from April 4, 2015. Additionally, the Board remanded the issues presently on appealentitlement to a rating in excess of 70 percent for PTSD prior to April 4, 2015, and entitlement to a TDIU prior to April 4, 2015for the issuance of a new Supplemental Statement of the Case (SSOC). A new SSOC was issued in January 2022, and these matters have now returned to the Board for adjudication 1. Entitlement to a Rating in Excess of 70 Percent for PTSD Prior to April 4, 2015 In July 2015, the Veteran was service connected for PTSD and was awarded a 10 percent rating effective August 29, 2014, the date the Department of Veterans Affairs (VA) received his informal claim for benefits. A March 2017 rating decision increased the Veteran's initial evaluation for PTSD to 30 percent, and the Board later increased this initial rating to 70 percent from August 29, 2014, to April 4, 2015. A 100 percent rating for PTSD was awarded thereafter. The Veteran contends that his symptoms have warranted a 100 percent disability rating for the entire period on appeal. Disability ratings are determined in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When the appeal arises from an initial assigned rating, the Board will consider whether staged ratings should be assigned to compensate for times when the disability may have been more severe than at other times during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). PTSD is rated under the General Formula for Mental Disorders (General Formula). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication or to interfere with occupational and social functioning. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is assigned when there is 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned when there is evidence of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of symptoms under the rating criteria are examples of symptoms that would warrant the rating, but they are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the 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, 713 F. 3d at 117-18. In its September 2021 decision, the Board concluded that, from August 29, 2014, to April 4, 2015, the Veteran's service-connected PTSD most closely resembled occupational and social impairment with deficiencies in most areas due to his suicidal ideation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Thus, the issue here is whether the Veteran's service-connected PTSD warranted a 100 percent rating from August 29, 2014, to April 4, 2015. For the reasons to follow, the Board concludes that a 100 percent rating is not warranted prior to April 4, 2015, because his PTSD was not manifested by total occupational and social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411. The record contains minimal VA treatment records pertaining to the Veteran's PTSD from the period between August 29, 2014, to April 4, 2015. In September 2014, the Veteran reported that he did not experience nightmares, avoidance, feeling on guard, watchful, numbness, detachment, or was easily startled. He further indicated that he did not have anxiety, changes in his sleep patterns, early awakening, depression, or mood changes. Additionally, the Veteran's first VA examination, which occurred in July 2015, noted a history of suicidal ideation, which is a symptom associated with a 70 percent rating. The examiner also noted symptoms associated with lower ratings, including depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The record also contains a lay statement from the Veteran, received in September 2015. In this statement, the Veteran described experiencing migraines, loss of sleep, nightmares, mood swings, problems concentrating, and trouble remembering names, directions to familiar places, and the location of his keys. These symptoms are either contemplated by or similar to symptoms associated with ratings below 100 percent under the General Formula. 38 C.F.R. § 4.130, Diagnostic Code 9411. Based on the VA treatment records, the July 2015 VA examination, and the Veteran's lay statement, the Board concludes that the Veteran did not experience any of the symptoms associated with a 100 percent rating under the General Formula, nor has he experienced any symptoms that are similar to those contemplated by a 100 percent rating, during the period prior to April 4, 2015. Furthermore, the overall severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Notably, the Veteran endorsed a recent worsening of his PTSD symptoms during his July 2015 VA examination, indicating that they were not as severe prior to April 4, 2015, as they were after his retirement. The Board also notes that the Veteran expressed suicidal ideation, which can be similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. The July 2015 VA examiner noted that although the Veteran endorsed items related to suicidal thoughts on his Minnesota Multiphasic Personality Inventory (MMPI), he denied suicidal ideation upon interview. Thus, the severity, frequency, and duration of the Veteran's suicidal ideation had not risen to the level contemplated by the 100 percent disability rating during the period prior to April 4, 2015. Furthermore, the Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas, but he did not exhibit total occupational and social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411. Regarding social impairment, the Veteran noted during his July 2015 VA examination that he is quite distant from most of his family. He reported that he is not close to his brothers or sisters and that he has not spoken to them in "some years." He also has not spoken to his daughter in years, and he has little contact with his stepdaughter. While the Veteran noted that he was married for 12 years at the time of the July 2015 examination, he also stated that "it's not great" and that "there are some problems." In sum, he described himself by saying, "I'm pretty much a loner.... I'm more comfortable that way." Thus, the evidence demonstrates that, prior to April 4, 2015, the Veteran had significant social impairment due to his marital problems and distance from his siblings, daughter, and stepdaughter. Prior to April 4, 2015, however, the Veteran did not exhibit total occupational impairment. The Board notes that the evidence of record contains conflicting evidence as to the Veteran's prior employment. During his February 2015 VA examination, he reported that he retired in February 2015 after working for a shipping company for approximately 25 years; he reported the same thing in treatment records from October 2017. However, the Veteran's October 2020 VA examination and his VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, indicated that he worked as an investigator for a federal agency from June 1981 to April 3, 2015. This employment is confirmed by the VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, that was completed by the agency. Regardless of what kind of employment the Veteran held, the Board nevertheless concludes that the Veteran did not experience total occupational impairment due to his service-connected PTSD prior to his retirement on April 4, 2015. During his July 2015 VA examination, he repeatedly denied having a history of employment problems related to his PTSD. He further indicated that he retired from the shipping company in February 2015 upon his doctor's recommendation after he passed out at work. The Veteran also indicated that, prior to his employment with the shipping company, he worked in a production plant and later at a federal prison. Again, he specifically denied being terminated for cause, reprimanded, written up, or suspended from any of these jobs. The Veteran described his relationships with his co-workers as "okay," noting that he did not have to interact with others often due to the nature of his job. In addition to the lack of interpersonal problems, he also stated that he did not have problems performing his work duties due to the symptoms of his service-connected PTSD, nor did they cause tardiness or absenteeism. During his most recent VA examination in October 2020, the Veteran stated that he struggled with concentration and attention while working on his cases with the federal agency. He also avoided interactions with his co-workers. The Veteran further stated that it "got to the point it was an emotional struggle just to go to work," and this contributed to his early retirement in April 2015. While the Board acknowledges the Veteran's reports of occupational impairment during the October 2020 examination, it affords greater weight to the Veteran's statements offered during the July 2015 examination. These earlier statements were more contemporaneous and therefore more likely an accurate reflection of his symptom history than contradictory reporting years later. Thus, the Veteran did not experience total occupational impairment prior to his retirement, which was shown to be on April 4, 2015, based on the VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent ratingtotal social and occupational impairmentprior to April 4, 2015, the day on which the Veteran was no longer employed. 38 C.F.R. § 4.130, Diagnostic Code 9411. As the evidence of record persuasively weighs against a rating in excess of 70 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The claim for a 100 percent rating for PTSD prior to April 4, 2015, must therefore be denied. 2. Entitlement to a TDIU Prior to April 4, 2015 The Veteran also contends that he is entitled to a TDIU prior to April 4, 2015. When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In such a situation, the claim for a TDIU has the same appeal period as that of the increased rating claim A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. See Ray, 31 Vet. App. at 73. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. See Ray, 31 Vet. App. at 73. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity). See Ray, 31 Vet. App. at 73. An award of a TDIU is an individualized determination, specific to the veteran's particular circumstances, such as his history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). 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 v. Brown, 4 Vet. App. 361, 363 (1993). From August 29, 2014, to April 4, 2015, the Veteran had the following service-connected disabilities : PTSD, coronary artery disease, superficial scars to right lower extremity and superficial scar to anterior chest wall associated with coronary artery disease, and bilateral hearing loss. His total combined rating was 90 percent, and he was rated above 40 percent for both PTSD and coronary artery disease. Based on the forgoing, the Veteran had at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more during the period between August 29, 2014, and April 4, 2015. The Board may therefore consider the claim for a TDIU on a schedular basis prior to April 4, 2015. 38 C.F.R. § 4.16(a). However, for the reasons that follow, the Board finds that a TDIU is not warranted for this period. The Veteran's July 2015 VA examination shows that the Veteran completed high school prior to his military service. After his separation, the Veteran earned his bachelor's degree in criminal justice. As noted above, the record contains conflicting evidence regarding his post-service employment. His July 2015 VA examination and subsequent VA treatment records indicate that he was employed by a shipping company 25 years until February 2015, and prior to that, he worked in a production plant and a federal prison. However, his October 2020 VA examination, VA Form 21-8940, and VA Form 21-4192, indicate that he worked as an investigator for a federal agency from June 1976 until April 2015. Furthermore, the VA Form 21-4192, completed by the federal agency indicates that the Veteran earned over $90,000 in his final year of employment. This is significantly above the poverty threshold for one person, which the U.S. Department of Commerce determined to be $11,770 in 2015. See https://aspe.hhs.gov/2015-poverty-guidelines. As for the physical and mental effects of the Veteran's service-connected disabilities, the Board first notes that some of the Veteran's VA examinations indicated that his service-connected disabilities may have an impact on his ability to work. However, entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether the Veteran is able to secure and follow a substantially gainful occupation based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). The evidence shows that the Veteran's ability to secure and follow a substantially gainful occupation is not impacted by the physical effects of his coronary artery disease prior to April 4, 2015. The record indicates that the Veteran had a heart attack in 2013 but that he returned to work after recovering. Moreover, the June 2014 VA examiner concluded that the Veteran's heart condition did not impact his ability to work. While the examiner noted that the Veteran did not engage in any kind of exercise and was primarily sedentary, the Veteran's wife indicated that she believes that the Veteran was "guarded out of fear that any increased level of exercise will cause another [myocardial infarction]." The Veteran further stated that he was still employed at the time of the June 2014 examination and that his job was of a sedentary nature. Additionally, the Veteran reported in July 2015 that he passed out at work one night and subsequently retired in 2015 at the recommendation of his doctor. Thus, as the evidence of record indicates that the Veteran was still gainfully employed and able to perform his job until his eventual retirement on April 4, 2015, the Board concludes that the physical effects of his coronary artery disease did not preclude him from securing and following a substantially gainful occupation. The evidence of record also indicates that the Veteran's service-connected PTSD causes mental effects that may have impacted his ability to secure and follow a substantially gainful occupation. As discussed above, the record contains conflicting evidence as to whether the Veteran's PTSD affected his employability. In July 2015, the Veteran indicated that his PTSD did not cause any issues with respect to his ability to maintain his prior employment. He stated that his relationships with his co-workers were fair, even though he did not interact with them often due to the requirements of his job. The Veteran also denied any problems performing his job duties due to his PTSD symptoms. Further, he had never been terminated for cause, reprimanded, written up, or suspended from a job. In favor of the grant of a TDIU, however, is evidence from the October 2020 VA examination. At this time, the Veteran reported that he had to retire before he wanted to because of the effects of his heart condition and PTSD. He further stated that the Veteran struggled with concentration and attention at work and avoided interactions with his co-workers. The Veteran's symptoms eventually got to the point where "it was an emotional struggle just to go to work," which contributed to his retirement on April 4, 2015. Again, the Board assigns more probative weight to the discussion of the effects of the Veteran's service-connected PTSD at the time of the July 2015 VA examination, as it was more contemporaneous and therefore more likely to be an accurate reflection of his history than contradictory reports several years later. Furthermore, even if the Veteran did struggle at work due to the mental effects of his PTSD as he reported in October 2020, the evidence does not show that it rendered him unemployable until his April 4, 2015, retirement, as he was able to maintain his employment until that time. The Board notes that the Veteran contends that his service-connected tinnitus prevents him from securing and following a substantially gainful occupation; however, the Veteran was not granted service connection for tinnitus until October 2019. As the issue on appeal is entitlement to a TDIU from August 29, 2014, to April 4, 2015, the effect of his tinnitus on his occupation cannot be considered because he was not service connected for that condition during the period at issue. The Veteran further stated that his hypertension contributed to his unemployability, but the Veteran has not been granted service connection for hypertension at any point. Therefore, the occupational effects of his hypertension cannot be considered either. Given the foregoing, the evidence of record persuasively weighs against finding that the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history prior to April 4, 2015. Prior to his retirement on April 4, 2015, the Veteran had been gainfully employed in a long-term job that was consistent with his education. There is no evidence that his service-connected disabilities had rendered him unable to perform the physical duties required by such employment, and even though some evidence suggests that the mental effects of his disabilities may have impacted his occupation, they did not render him unemployable. As the evidence of record persuasively weighs against the award of a TDIU, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, No. 2020-2067, 2021 U.S. App. LEXIS 37307. Accordingly, a TDIU is not warranted for the period prior to April 4, 2015. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.