Citation Nr: 22051135 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 14-31 122 DATE: September 8, 2022 ORDER Entitlement to a disability rating of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) from May 26, 2010, to October 23, 2017, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from May 26, 2010, forward is granted. FINDINGS OF FACT 1. From May 26, 2010, to October 23, 2017, the Veteran's PTSD symptoms manifested in occupational and social impairment with deficiencies in most areas; however, his symptoms were not of the severity, frequency, and duration so as to result in total occupational and social impairment. 2. The Veteran was unable to obtain and sustain substantially gainful employment due to his service-connected disabilities since May 26, 2010. CONCLUSIONS OF LAW 1. 1From May 26, 2010, to October 23, 2017, the criteria for a disability rating of 70 percent for PTSD, but not higher, have been 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. The criteria for entitlement to a TDIU have been met from May 26, 2010, forward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in October 2017 before a Veterans Law Judge who is no longer with the Board. A transcript of this hearing is of record. The Veteran was notified that he is entitled to another hearing and did not elect to have another hearing. See 38 U.S.C. § 7107 (c). Accordingly, the Board will proceed without further delay. In December 2020, the Board denied entitlement to a disability rating in excess of 30 percent, prior to May 26, 2011, for PTSD; entitlement to a disability rating in excess of 50 percent, from May 26, 2011 to October 24, 2017, for PTSD; entitlement to a disability rating in excess of 70 percent, from October 24, 2017, for PTSD; and entitlement to a TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2021, the Court granted a Joint Motion for Partial Remand (JMR) in which the parties agreed to vacate the December 2020 decision and remand the matters to the Board. Initially, the Board notes that the Veteran is not appealing the portion of the decision that denied a disability rating in excess of 70 percent from October 4, 2017, forward. As such, the Board will not address the disability rating assigned for this period. 1. PTSD Under the General Formula for Mental Disorders (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. 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. A 30 percent rating is assigned when 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), cause 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). A 50 percent rating is assigned when 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 cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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. VA treatment records dated in April 2010, July 2010, August 2010, September 2010 and March 2011 show that the Veteran sought treatment for increasing symptoms of PTSD. In March 2011, he was provided information about a suicide hotline. The Veteran underwent a VA examination in July 2011. He reported that he is "not good" and has "gone downhill", told his wife he does not want to live anymore due to pain, he has intrusive thoughts on a daily basis, but also regular periods of remission, dreams can occur several times per week, and has occasional flashbacks and some panic episodes. He reported that he prefers to avoid activities, places, or people, he has several hobbies, but not participating as much lately, remains married to wife of 27 years and has a relationship with his children but he is estranged from one daughter, sleeps excessively but has trouble sleeping, irritability, road rage, variable concentration, short-term memory difficulty, hypervigilance, and startle response. He endorsed symptoms of depressed mood, anhedonia, sleep disturbance, feeling tired or having little energy, difficulty concentrating, feeling that he is a failure, wishing he were dead, poor appetite, and being fidgety. In a December 2012 lay statement, the Veteran indicated that he was certain that his PTSD had worsened. The Veteran's VA treatment records from this period contain complaints of depression. The Veteran also participated in behavioral activation group psychotherapy and personal psychotherapy. In January 2013, a VA psychologist indicated that the Veteran had active diagnoses of PTSD, depression, and anxiety disorder. Clinicians also monitored the Veteran's medication. Next, the Veteran underwent a VA examination in May 2014. He was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although general functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran conveyed that he had limited socialization, and that concentration was difficult at times, adding that he did not get along with either his co-workers or with his supervisors. VA treatment records, VA examinations, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating including suicidal ideation, near-continuous panic, and difficulty in adapting to stressful circumstances. He also had symptoms that are not listed with a specific rating, such as poor appetite, fatigability, and easy startling. The evidence, namely, VA treatment records, dated during the one-year period prior to receipt of the Veteran's claim for an increased rating on May 26, 2011, show that he sought treatment for worsening symptoms of PTSD. As such, a 70 percent rating for PTSD is warranted from May 26, 2010, to October 23, 2017. The Board finds the severity, frequency, and duration of the Veteran's unlisted 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. Further, the Veteran's PTSD has not been shown to cause total social impairment, as he is married and socializes on a limited basis. See May 27, 2014, VA PTSD examination report. The Board has considered both the Veteran's and his spouse's testimony concerning increased severity. The Veteran and his spouse are competent to report discernable symptoms and they have been assigned probative weight. The Board assigns significantly more weight to the opinions of the VA psychologists and VA mental health clinicians. These medical professionals reviewed the claims file; considered the Veteran's subjective accounts of his psychiatric history; and conducted evaluations. Moreover, these experts evaluated the totality of evidence through established and field-specific clinical criteria, with considerable attention given to the Veteran's symptoms. Therefore, the evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 70 percent for PTSD is warranted. Rather, the evidence persuasively weighs against granting a disability rating in excess of 70 percent disabling for service-connected PTSD from May 26, 2010, to October 23, 2017. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. TDIU from May 26, 2010 forward The Veteran seeks a TDIU. He contends his physical and mental disabilities prevent him from securing and following substantially gainful employment. 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. Id. 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. 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 work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their 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 they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran meets the schedular criteria for a TDIU as of May 26, 2010 and has the following disabilities that are service connected: PTSD rated as 70 percent since May 26, 2010; right medial meniscectomy rated as 30 percent since June 1, 2008; right bicipital tendonitis rated as 20 percent since May 1, 2006; left knee degenerative joint disease rated as 10 percent since July 12, 2005; GERD rated as 10 percent from May 26, 2011; tinnitus rates as 10 percent since December 31, 2018; right shoulder scar and right knee scar rated as 0 percent since May 4, 2019; and bilateral hearing loss rated as 0 percent since July 19, 2019. 38 C.F.R. § 4.16(a). The Board will focus on the Veteran's knee, shoulder, and PTSD disabilities as the Veteran asserts that these disabilities render him unemployable. For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran has an associate degree in marketing, last worked in 2005 as a forklift operator, and has previous work in security. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his shoulder and knee disabilities. Regarding his knees, increased activity worsens knee pain, he is unable to tolerate prolonged standing, cannot lift greater than 15 pounds, and asserts he has difficulty with prolonged sitting. See April 1, 2011 VA treatment record; July 2011 and June 2014 VA examination. In July 2010, the Veteran reported that he "blew out" his left knee three days ago. See July 1, 2010 VA treatment record. His shoulder prevents heavy lifting and doing repetitive overhead activity. See July 2011 VA examination. In May 2011, it was noted that the Veteran had hyper-extended his knee which caused him to vomit from the pain. These symptoms would cause the Veteran to be unable to perform physical overhead work, lifting, and would require frequent breaks to avoid pain from prolonged sitting. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his PTSD as well. As discussed above, the Veteran suffers from suicidal ideation, concentration difficulty, memory issues, irritability and anger issues, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. These symptoms would cause difficulties staying on task, attending work, and working with coworkers. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history Physically, the Veteran is unable to perform any work that requires overhead work, prolonged sitting, or prolonged standing. As the Veteran previously worked in security and as a forklift operator, his physical disabilities would preclude such work as well as sedentary work where he could not take frequent breaks. His PTSD would prevent him from both physical and sedentary work due to difficulties staying on task, attending work, and getting along with coworkers or others due to his anger, irritability, suicidal ideation, and concentration and motivation issues. Accordingly, a TDIU is warranted from May 26, 2010, forward. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. 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.