Citation Nr: 22018767 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 12-33 491A DATE: March 30, 2022 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from February 23, 2011 to November 24, 2011 is granted. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's service-connected PTSD has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. For the period from February 23, 2011 to November 24, 2011, the evidence is at least in relative equipoise as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met from February 23, 2011 to November 24, 2011. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from September 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in September 2010. In an October 2012 rating decision, the RO granted an increased initial disability rating of 50 percent. This matter was previously before the Board in August 2017 and October 2021 and was remanded both times for additional evidentiary development. Following the October 2021 Board Remand, the RO increased the Veteran's rating to 70 percent disabling in a December 2021 rating decision. Although a higher rating was assigned by the RO for PTSD following the remand, the increased rating matter remains in appellate status as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a disability rating in excess of 70 percent for PTSD. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran has been assigned an initial disability rating of 70 percent for his service-connected PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Diagnostic Code 9411 applies the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, 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 Veteran's ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent disability 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms recited in the criteria in the General Rating Schedule 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, 442 (2002). Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) acknowledged the "symptom-driven nature" of the General Rating Formula. The Federal Circuit observed 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, 117 (Fed. Cir. 2013). The Federal Circuit explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533, at *10 (Fed. Cir. June 3, 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. The Veteran underwent a VA psychiatric examination in August 2010. He reported the following symptoms: sleep problems, nightmares occurring about once per week, chronic fatigue, flashbacks, avoidance of triggers, difficulty concentrating, hypervigilance, irritability, difficulty getting along with others, and social withdrawal. The examiner indicated that the Veteran's PTSD interferes with his ability to be employed and function at his optimal level due to difficulty concentrating, irritability, sleep problems, difficulty getting along with others, and social withdrawal. The examiner noted that there was no impairment in thought process or communication and that the Veteran's memory functioning was within normal limits. The Veteran denied hallucinations and delusional thinking, as well as any suicidal or homicidal ideation, intent, or plan. Based on his symptoms, the examiner opined that the Veteran more likely than not experienced "significant" impairment in functioning. A VA treatment note dated in September 2010 indicates that the Veteran reported that he has considered, but never attempted, suicide. He stated that he "would never do that because it is a sin" and denied any recent impulsive self-harming behavior or suicidal intent. The Veteran underwent another VA examination in November 2010. He reported sleep problems and nightmares, as well as being easily angered and argumentative at work. He indicated that he has been reprimanded by his boss for his attitude but has never been fired or quit due to his attitude. He stated that he has missed a few days of work due to his back problems but has not missed any work due to his mental health symptoms. The examiner indicated that the Veteran did not have any serious impairment in thought process or communication, did not experience delusions or hallucinations, had no suicidal or homicidal ideation, and did not exhibit any inappropriate or bizarre behavior. His reasoning, judgment, and memory were all noted as being adequately intact. The examiner also indicated that the Veteran is competent to manage activities of daily living and is able to go to work each day and function adequately there. The examiner stated that the examination results were indicative of a moderate degree of symptomatology. The claims file contains private treatment reports conducted by A.J., Ph.D., dated in September 2010, February 2011, and November 2011. These three assessments indicate that the Veteran reported periods of thought confusion and daydreaming as a result of intrusive recollections of traumatic events and that he can only sleep a few hours at a time due to severe nightmares. Dr. J. also stated that the Veteran has unpredictable outbursts of rage followed by periods of deep depression. He also indicated that the Veteran has lost a number of jobs and cannot work closely with another employee due to his PTSD symptoms. Each of Dr. J.'s assessments also indicate that the Veteran was very anxious but was appropriately dressed and appeared to practice good hygiene. A VA treatment note dated in July 2011 indicates that the Veteran reported feeling depressed two to three days per week and had some decreased appetite and feelings of worthlessness and guilt. He denied having panic attacks; suicidal or homicidal ideation, intent, or plan; auditory verbal hallucinations; and manic symptoms. The Veteran underwent another VA psychiatric examination in January 2012. He reported increasing social isolation but indicated regular contact with his wife, daughter, grandchildren, mother, and members of a Vietnam veterans' group. He was noted as being able to manage all activities of daily living. The Veteran reported that he retired from his job because he was unable to meet the physical demands, but he stated that he was mentally capable of doing his job. The examiner stated that his PTSD does not interfere with employment. The Veteran reported the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that these symptoms were productive of occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress and stated that his level of impairment had not increased significantly since the previous VA examination. A March 2013 VA treatment record states that the Veteran reported occasional visual hallucinations related to his PTSD but denied experiencing delusions. He denied hallucinations in subsequent VA treatment sessions, including in November 2019 and May 2021. Another VA treatment record, dated in November 2013, indicates that the Veteran's main difficulty related to PTSD is interrupted sleep and nightmares occurring a couple of times per week. He reported that his mood was generally good, though he would occasionally feel discouraged and depressed following his nightmares. He reported enjoying spending time with his family and going to church and veteran group meetings. He denied panic attacks; flashbacks; appetite disturbance; and suicidal or homicidal ideation, intent, or plan. His concentration was reported as good. The Veteran underwent another VA psychiatric examination in November 2021. The following symptoms were noted: depressed mood; anxiety; suspiciousness; panic attacks weekly or less often; chronic sleep impairment; mild memory loss; flattened affect; 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 examination report indicates that the Veteran has been retired for over 10 years, due in part to the progression of his Parkinson's disease. The examiner noted that the Veteran appeared to have average hygiene, exhibited generally appropriate behavior, and had logical thought processes. The Veteran denied suicidal and homicidal ideation, intent, plans, or proximate gestures. Based on the examination, the examiner opined that the Veteran's PTSD symptoms result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Based on the medical evidence of record as discussed above, the Board finds that the Veteran's PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas such as family relations, judgment, thinking, or mood, consistent with the 70 percent disability rating that is currently in effect. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran's PTSD symptoms for that period do not more nearly approximate the criteria for a 100 percent disability rating. None of the evidence of record demonstrates that the Veteran has experienced symptoms such 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, his own occupation, or his own name. Although the Veteran did report some thoughts about suicide the frequency, duration and severity of this symptom, with the Veteran noting only that he had considered it, having strong beliefs against it, and having no plan, more closely approximated the level of severity associated with a 70 percent rating therefore, the evidence weighs against finding that he presents a persistent danger of hurting himself or others. His memory, orientation, and behavior have consistently been noted as normal. Although he reported occasional visual hallucinations to a VA provider in March 2013, he denied experiencing hallucinations on several other occasions, including at the August 2010 and November 2010 VA examinations and during VA treatment sessions in November 2019 and May 2021. Therefore, the frequency, severity, and duration of his reported visual hallucination more closely approximates the level of severity associated with a lower level of disability; the evidence weighs against a finding that he has experienced persistent hallucinations during the rating period on appeal. Further, the record does not demonstrate that the Veteran's PTSD has resulted in total occupational and social impairment. The Veteran has reported maintaining good relationships with his wife, daughter, grandchildren, mother, and members of veterans' groups. The January 2012 examiner found the Veteran's PTSD causative of occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. More recently, the November 2012 VA examiner found that the Veteran's PTSD had resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Such findings are inconsistent with total occupational and social impairment. While the symptoms listed in the criteria for a 100 percent rating are not an exhaustive list, the Veteran has not demonstrated other symptoms of a similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 117. In view of the foregoing, as well as the other evidence of record, the Board finds that while the Veteran does have significant occupational and social impairment due to his PTSD, his symptomatology is most consistent with his current 70 percent rating, which reflects deficiencies in most area. He does not have total occupational and social impairment that would warrant a 100 percent rating. For these reasons, the Board finds the Veteran does not meet or nearly approximate the criteria for a schedular rating in excess of 70 percent for his service-connected PTSD, to include on the basis of a "staged" rating(s) pursuant to Fenderson, supra, and Hart, supra. Therefore, the claim is denied. 2. Entitlement to a TDIU. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A total disability rating due to individual unemployability (TDIU) may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and enough additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Robertson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). Where there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. According to the Veteran's Social Security Administration (SSA) records, the Veteran last worked as a clerk for a hardware store on February 22, 2011. His medical records show that he has occupational impairment related to his service-connected PTSD. Therefore, the issue of entitlement to a TDIU has been reasonably raised by the record. See Rice, 22 Vet. App. at 453. Even where the issue of entitlement to a TDIU is raised as part and parcel of only one increased rating claim, whether a TDIU is warranted must be made based on consideration of all the claimant's service-connected disabilities. See Allport v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 849, No. 18-2000 (May 29, 2019) (non-precedential) (holding that when a TDIU is raised in connection with an increased rating claim for one disability (i.e., a Rice TDIU claim), the Board must consider entitlement to a TDIU in light of all service-connected disabilities); see also Bethea v. Derwinski, 2 Vet. App. 252, 25 (1992) (a non-precedential decision may be cited "for any persuasiveness or reasoning it contains."). Throughout the rating period on appeal, or from June 9, 2010, the Veteran has been service-connected for the following disabilities: PTSD, rated as 70 percent disabling effective June 9, 2010; Parkinson's disease with resting tremor of the right upper extremity, rated as 40 percent disabling effective November 25, 2011; allergic rhinitis with sinusitis, rated as 30 percent disabling from September 24, 2010; postural instability associated with Parkinson's disease, rated as 30 percent disabling effective November 25, 2011; residuals of a back injury with strain, rated as 20 percent disabling from August 22, 2006; resting tremor of the left upper extremity associated with Parkinson's disease, rated as 20 percent disabling effective November 25, 2011; left sciatica with impairment associated with Parkinson's disease, rated as 10 percent disabling from September 24, 2010 and 20 percent disabling effective November 25, 2011; impairment of the right lower extremity, assigned an initial noncompensable rating and a 20 percent rating from November 25, 2011; dysarthria associated with Parkinson's disease, rated as 10 percent disabling from November 25, 2011; facial masking associated with Parkinson's disease, rated as 10 percent disabling effective November 25, 2011; and dysphagia, constipation, and erectile dysfunction, each associated with Parkinson's disease and assigned an initial noncompensable rating effective November 25, 2011. His combined disability rating is 80 percent from June 9, 2010; 90 percent from September 24, 2010; and 100 percent from November 25, 2011. He is also in receipt of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), effective November 25, 2011. A grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on a disability other than the disability that is rated at 100 percent. Bradley, 22 Vet. App. 280. Here, the issue of TDIU is moot from November 25, 2011, forward, as the Veteran is already in receipt of SMC for that period. For the period from June 9, 2010 to November 24, 2011, the Veteran meets the schedular criteria for a TDIU award. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's SSA records indicate that he was last employed as a clerk at a hardware store from April 2, 2007 to February 22, 2011. A May 2011 SSA Disability Determination and Transmittal indicates that the Veteran is entitled to SSA disability benefits due to disorders of back (discogenic and degenerative) and anxiety disorders. The August 2010 VA examiner stated that the Veteran's PTSD interferes with his ability to be employed and function at his optimal level due to difficulty concentrating, irritability, sleep problems, difficulty getting along with others, and social withdrawal. The examiner also opined that the Veteran more likely than not experienced "significant" impairment in functioning due to his PTSD. At his November 2010 VA PTSD examination, the Veteran reported that he was easily angered and argumentative at work and that he had been reprimanded by his boss for his attitude at work. He also reported missing work due to his service-connected back disability. In a February 2011 SSA function report, the Veteran reported that he can no longer drive or walk long distances, stand or sit for long periods, lift more than 10 pounds, or perform yard work due to his back disability. A November 2011 private medical assessment from Dr. J. states that the Veteran has unpredictable and aggressive outbursts of rage, followed by long periods of depression, which has caused problems with fellow employees and family members. Dr. J. also indicated that the Veteran has lost a number of jobs and cannot work close to another employee. During his January 2012 VA PTSD examination, the Veteran reported that he retired from the hardware store because his chronic back pain progressed to the point where he was unable to meet the physical demands of his job, which included lifting up to 40 pounds. Although the Veteran stated that he was mentally capable of performing that job, the examiner did state that his PTSD caused a degree of occupational impairment and noted symptoms including suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. While there is certainly some evidence against the claim, it is clear that the Veteran had significant occupational impairment due to his service-connected disabilities during the period on appeal. The final determination with respect to a Veteran's entitlement to a TDIU is an adjudicatory, and not a medical, function. However, the information provided in the VA examination reports, the November 2011 private medical assessment, and the Veteran's lay statements describing the debilitating effects of the Veteran's service-connected disabilities are persuasive. The evidence of record further establishes that the Veteran has not worked since February 22, 2011. On balance, and taking into account the totality of the evidence, the Board is persuaded that it is at least as likely as not that the Veteran's service-connected disabilities render him unable to secure or maintain substantially gainful employment in light of his educational background and recent work history. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A TDIU is therefore granted. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.