Citation Nr: 23040968 Decision Date: 07/26/23 Archive Date: 07/26/23 DOCKET NO. 20-08 766 DATE: July 26, 2023 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. As of July 1, 2015, excluding periods where a 100 percent rating for a single-service connected disability and entitlement to special monthly compensation (SMC) at the housebound rate have been assigned, a total disability rating based on individual unemployability due to service-connected disabilities (hereinafter, TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD has been manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. Resolving all doubt in the Veteran's favor, as of July 1, 2015, exclusive of the periods where a 100 percent rating for a single service-connected disability and SMC at the housebound rate have been assigned, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. As of July 1, 2015, exclusive of the periods where a 100 percent rating for a single service-connected disability and SMC at the housebound rate have been assigned, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2015 by a Department of Veterans Affairs (VA) Regional Office. 1. Entitlement to a rating in excess of 70 percent for PTSD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on July 1, 2015, the date VA received the Veteran's claim for an increased rating, and includes the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Throughout the period on appeal, the Veteran's PTSD is rated as 70 percent disabling under Diagnostic Code 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. In pertinent part, the General Rating Formula provides a 70 percent rating when there is 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). To warrant a higher rating for the period on appeal, the evidence must demonstrate psychiatric symptomatology resulting in total occupational and social impairment. Upon review, the Board finds a rating in excess of 70 percent is not warranted at any time during the appeal period. With respect to the Veteran's psychiatric symptomatology, VA treatment records, private treatment records, and VA examination reports document complaints of anxiety; panic attacks more than once per week; suspiciousness; disturbances of motivation and mood; nightmares; flashbacks; hypervigilance; intrusive thoughts; chronic sleep impairment; anger; avoidance; irritability; mild memory impairment; impaired speech and concentration; poor frustration tolerance; dissociation; isolation; survivor's guilt; and depressed mood. The medical evidence reflects the Veteran's continued treatment for his psychiatric symptoms, to include a September 2016 letter from O.P. (initials used to protect privacy). Therein, O.P. detailed how the Veteran received biofeedback training to produce more effective means of handling his daily living activities and better deal with unchangeable and uncontrollable stressors. Notably, however, the evidence, to include the Veteran's own lay statements, does not reflect gross impairment in thought processes or communication; delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living; disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name, all of which fall within the rating criteria considered by the assignment of a 100 percent rating. With respect to social impairment, the evidence indicates the Veteran's PTSD resulted in difficulty in establishing and maintaining effective work and social relationships. In particular, a January 2020 letter from a private psychologist, F.H., indicates the Veteran had isolated himself from friends and family and that his irritability and argumentative attitude prevented him from maintaining relationships. However, the Board also finds relevant that the remainder of the evidence, including the Veteran's own reports, shows that he maintained some type of relationship with his ex-wife, as demonstrated by his staying with her in her home and vacationing with her at times, as well as relationships with his brothers throughout the appeal periods. Likewise, while he appears to have had a strained relationship with his children, he did maintain a few friends from childhood and through his AA group, and he was friendly with his neighbors. As for occupational impairment, the relevant evidence indicates the Veteran's PTSD severely impacted his ability to maintain substantially gainful employment, which the Board has recognized in its award of a TDIU herein. Specifically, J.S., one of the Veteran's former managers, provided a June 2015 statement describing the Veteran's good work ethic for the period from 1997 to 2007. However, J.S. also reported that the Veteran displayed some "disconcerting traits" and at times could be "unmanageable," yelling at clients and having incidents of road rage. Another former supervisor, F.T., who managed the Veteran during the period from 2007 to 2014, provided a September 2016 email, wherein he detailed that while the Veteran worked hard every day, problems arose when things did not go as planned. F.T. provided three examples of the Veteran losing his patience and having a temper when other sales representatives would not have done so. In a letter dated in September 2018, M.O. wrote that the Veteran worked for him from May 2013 through April 2014. M.O. noted that it became increasingly difficult to manage the Veteran, as he would become irritable with customers and volatile during reviews. In fact, M.O. reported the Veteran was ultimately let go for disrespecting the Sales Manager. In another September 2018 letter, P.M., the Veteran's former supervisor for the period from October 2016 to February 2017, reported that he would do things without asking his manager, was not good at following rules, and always seemed on edge. Further, F.H. opined in the January 2020 letter that the Veteran was unemployable due to his PTSD and that the prognosis for him to return to work was poor and would be counterproductive to the help he was receiving. F.H. noted the Veteran's reliability and productivity were not conducive to successful employment and that he had lost multiple jobs due to the severity of his PTSD symptoms. Nevertheless, the Board must consider the totality of the nature, frequency, severity, and duration of the Veteran's psychiatric symptomatology, as well as both the occupational and social impairment resulting therefrom. In this regard, the Board affords the following examiners' findings significant probative value as such were based on psychological evaluation of the Veteran and consideration of his own lay reports of his symptoms in light of the rating criteria. Per a June 2015 Review PTSD Disability Benefits Questionnaire (DBQ) completed by a private clinician, the Veteran's level of occupational and social impairment was best characterized as occupational and social impairment with deficiencies in most areas. Likewise, VA examiners in November 2017 and December 2019 determined the Veteran's PTSD symptomatology produced no more than occupational and social impairment with deficiencies in most areas, which aligns with the assignment of a 70 percent rating. In connection with the November 2017 VA examination, the VA examiner provided an addendum opinion, describing the Veteran's level of impairment as moderate. Specifically, the VA examiner found the Veteran may be expected to have poor social interactions and moderately impaired concentration. With respect to occupational impairment, the VA examiner noted the Veteran may require more frequent breaks, the use of memory assisting devices, and more time to complete tasks. However, the VA examiner also found the Veteran had evidenced relatively successful adaptation in past work settings. Notably, none of the aforementioned medical professionals concluded the Veteran's PTSD was manifested by psychiatric symptomatology resulting in total occupational and social impairment. In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that his PTSD is more severe than as reflected by the currently assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected PTSD during the appeal period; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning additional staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the probative evidence is not in approximate balance and weighs against the Veteran's claim. Thus, the benefit of the doubt doctrine is not applicable in such regard, and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU. The Veteran contends his service-connected PTSD forced him to retire and that his associated symptomatology continues to prevent him from obtaining and maintaining substantially gainful employment. VA received the Veteran's VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, on January 10, 2018. However, as the issue of entitlement to a TDIU is part and parcel of the Veteran's appeal for an increased rating for his PTSD, the question of entitlement to a TDIU stems back to July 1, 2015, the date VA received his increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). In a December 2018 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 100 percent rating for the Veteran's coronary artery disease, status post myocardial infarction and SMC at the housebound rate for the period from July 24, 2018, to November 1, 2018. Similarly, a December 2020 rating decision awarded a 100 percent rating for the Veteran's thrombosis, TIA or cerebral infarction with dysarthria and SMC at the housebound rate for the period from July 9, 2019, to October 14, 2019. Thus, the issue of entitlement to a TDIU is moot for these periods. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). The Board has characterized and will analyze the issue accordingly herein. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when 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 (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). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the appeal period, in relevant part, the Veteran is in receipt of service connection for PTSD rated as 70 percent disabling, tinnitus rated as 10 percent disabling, coronary artery disease rated as 10 percent disabling prior to July 24, 2018, and 30 percent disabling on and after July 9, 2019, and bilateral hearing loss rated as noncompensable prior to July 9, 2019, and 30 percent thereafter. As of October 27, 2017, he is also in receipt of service connection for onychomycosis rated as noncompensable, and on and after October 15, 2019, his service-connected thrombosis, TIA or cerebral infarction with dysarthria and mild swallowing difficulty are rated as 10 percent disabling and noncompensable respectively. Such results in combined ratings of 80 percent for the period prior to July 24, 2018, 80 percent for the period from November 1, 2018, to July 9, 2019, and 90 percent on and after October 15, 2019. Based on these assigned ratings, the Veteran meets the schedular threshold for consideration of a TDIU for the relevant appeal periods. Per his VA Form 21-8940, the Veteran's highest level of education is four years of college. With respect to his work history, the evidence shows that he worked primarily in sales, and he reported that he became too disabled to work and last worked full-time as of May 14, 2014, which is prior to the commencement of the appeal. However, the Board notes his work history includes part-time employment as a gym attendant for the period from October 2016 to February 2017. Nevertheless, the Veteran's reported earnings for such period were $5,083.36, which fall below the poverty threshold for both related years ($11,511 and $11,756 for a one-person household, respectively). Consequently, the Board finds such employment constitutes no more than marginal employment and, thus, the evidence demonstrates that the Veteran has not been employed in a substantially gainful occupation at any time during the appeal periods. Therefore, the remaining inquiry is whether the Veteran's service-connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. As noted in greater detail above, the relevant evidence indicates the Veteran's PTSD severely impacted his ability to maintain substantially gainful employment. Additionally, a November 2018 VA examination report indicates the Veteran's service-connected coronary artery disease prevented him from performing a job that required strenuous physical activity. While a September 2020 Hearing Loss and Tinnitus DBQ indicates the Veteran's tinnitus did not impact his ability to work, the Veteran did report therein that he was unable to hear and understand people as a result of his bilateral hearing loss. Per a March 2020 DBQ, the Veteran's service-connected thrombosis, TIA or cerebral infarction with dysarthria impacted his ability to work as it produced balance incoordination, occasional memory dysfunction, and stress on the heart. Here, the Board affords significant probative value to the lay statements provided by the Veteran's prior employers, as well as F.H.'s January 2020 opinion detailing how the Veteran was unemployable due to his PTSD. Notably, such is consistent with the remainder of the medical and lay evidence of record with respect to the occupational impairment produced by the Veteran's PTSD symptomatology. Additionally, although the Veteran's work history was comprised of mainly sales positions, the Board finds his physical service-connected disabilities would inhibit his ability to complete any occupation requiring manual labor. Consequently, in light of the Veteran's education level, work history, and nature of the limitations of his service-connected disabilities, the Board resolves all doubt in his favor and finds that such service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation as of July 1, 2015. Therefore, a TDIU is warranted on and after July 1, 2015, excluding the periods where a 100 percent rating for a single service-connected disability and SMC at the housebound rate have been assigned. J. SAIKH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, Supervisory Senior 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.