Citation Nr: 23051145 Decision Date: 09/15/23 Archive Date: 09/15/23 DOCKET NO. 20-04 165 DATE: September 15, 2023 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The weight of the evidence shows the Veteran's PTSD symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity during the appeal period. 2. The Veteran's service-connected disabilities did not preclude him from securing and following substantially gainful employment consistent with his educational and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to June 1970 and from March 1983 to August 2001. The Veteran presented sworn testimony at a Bard videoconference hearing before the undersigned in January 2023. A transcript is of record. The VA regulation defining eligibility for a TDIU is 38 C.F.R. § 4.16. A formal claim exists when VA receives a VA Form 21-8940, while an informal claim is created pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Rice holds that a claim for TDIU is part and parcel of an underlying rating claim if employability is expressly raised by a veteran or reasonably raised by the record during appeal. The Veteran filed a claim for entitlement to a TDIU in September 2018. A TDIU claim is part and parcel of an increased rating claim and must be considered when it is raised by the record. 1. Entitlement to a rating in excess of 50 percent for PTSD. The Veteran contends he is entitled to a higher initial disability rating for his service-connected PTSD. His service-connected PTSD is currently rated 50 percent. His PTSD is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 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. The symptoms listed in the General Rating Formula 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). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall 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. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). In this instant case, the severity, frequency, and duration of the Veteran's symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. The VA examinations, VA treatment records, and lay statement support a 50 percent evaluation during the period on appeal. The Veteran reported not functioning well, struggling daily and nightly with nightmares, triggers and hypervigilance. The Veteran also acknowledged he has chosen not to seek therapy or counseling; therefore, there are no treatment records for the relevant period on appeal. See January 2020 VA Form 9. At the January 2023 hearing, the Veteran denied the following: persistent delusions or hallucinations; suicidal or homicidal ideation; being a persistent danger to himself or others; speech that was intermittent, illogical or irrelevant and no violent incidents. The Veteran testified that he isolates by staying home and not interacting with people. He stated he has nightmares about his time in Vietnam. He testified to being quick tempered and having problems with authority. The Veteran testified that his PTSD symptoms have remained the same for the last 55 years and have not worsened since his December 2018 VA PTSD examination. In the absence of worsening since last examined, a new VA examination is not warranted. See 38 C.F.R. § 3.327(a). The Board acknowledges that Veteran testified to showering every other day. He testified that his wife reminds him to shower; however, the Veteran denied being unable to perform activities of daily living, including maintaining his personal hygiene. The Board finds that the Veteran's PTSD most closely approximated a disability picture consistent with occupational and social impairment with reduced reliability and productivity, as contemplated by the criteria for the 50 percent rating assigned. His symptoms have included: anxiety; chronic sleep impairment and difficulty in adapting to stressful circumstances, including work or worklike setting. These symptoms, and related impairment, are not of a severity consistent with the criteria a 70 percent rating. The evidence does not show 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, spatial disorientation, neglect of personal appearance and hygiene, suicidal ideation, or any other symptoms of similar nature and severity during this portion of the appeal. The disability picture presented is not one consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, which would warrant a 70 percent rating. As previously noted, at the time of the examination, the Veteran reported he had been married for 49 years and a son. He described his relationship with his wife and son as "fine." The evidence of record does not show that he had any difficulty tending to activities of daily living due to his psychiatric disorder. Therefore, the evidence persuasively favors against the claim, and the benefit of the doubt doctrine is inapplicable. Accordingly, a rating in excess of 50 percent for PTSD is not warranted, and the appeal in this matter must be denied. Entitlement to TDIU The Veteran contends that he is unable to secure and maintain gainful employment due to his service-connected PTSD. See September 2018 VA Form 21-526EZ, Fully Developed Claim; see also March 2020 VA 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Law TDIU can be awarded where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Provided that if there is only one disability, this disability shall be ratable at 60 percent or more, and that, 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. Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). Discussion The Veteran contends that he was unable to secure and maintain gainful employment due to his service-connected disabilities. See January 2023 Transcript. For the period on appeal, from September 27, 2018, the Veteran's combined rating for compensation is rated at 80 percent. For the period in question, the Veteran had a 50 percent rating for PTSD from September 27, 2018; a 20 percent rating for radiculopathy, left lower extremity from September 27, 2018; 10 percent for degenerative joint disease, right shoulder from September 1, 2001; 10 percent for tinnitus from September 1, 2001; 10 percent for tinea versicolor from September 1, 2001; 10 percent for bilateral hearing loos from October 30, 2017; 10 percent for degenerative joint disease, right knee from September 27, 2018 and 10 percent for degenerative joint disease, left knee from September 27, 2018. On the Veteran's March 2020 VA 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that his service-connected PTSD prevents him from securing or following any substantially gainful occupation and that he last worked full time on May 1, 2009. This document also notes that the Veteran's highest education was 2 years of college, without a degree, and that the Veteran last worked as a housing inspector from February 2009 to May 1, 2009. Specifically, he contends that due to his PTSD, his temper flairs and he cannot deal or tolerate his supervisors and has been unable to work since 2009. In December 2018, the Veteran underwent a VA examination addressing his back condition. The examiner noted that the Veteran's service-connected back condition could present functional impairments that could impact employment requiring strenuous physical activities involving lifting, carrying, bending. There is no objective evidence to support the notion that other types of employment would be impacted. In December 2018, the Veteran underwent a VA examination addressing his knee condition. The examiner noted that the Veteran's bilateral knee conditions could present functional impairments that could impact employment requiring prolonged lifting and bending. However, there was no objective evidence to support the notion that other types of employment would be impacted. In December 2018 the Veteran underwent a VA examination addressing his PTSD condition. The examiner noted the Veteran's ability to respond appropriately to changes in a work setting is considered moderately impaired. His ability to sustain concentration to task persistence and pace is considered moderately impaired. The examiner found the Veteran's ability to retain instructions as well as sustain concentration to perform simple tasks is considered not impaired. His ability to understand and follow instructions is considered not impaired. His ability to respond appropriately to coworkers, supervisors, or the general public is considered markedly impaired. The examiner noted the Veteran's active PTSD symptoms included anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. At the January 2023 video teleconference hearing, the Veteran testified that he cannot work in civilian work culture due to his PTSD symptoms. The Veteran testified that after leaving the military, he did not do well with civilian authority. He has retreated into a largely isolative lifestyle, has no friends, rarely leaves home or interacts with anyone other than his wife. The Veteran stated that given his irritability, anger, and social withdrawal, he left the workforce. However, the Board notes that a medical record from December 2022 reflects that while receiving treatment, the Veteran reported that he was unable to remain at the medical visit due to responsibilities with his work truck. See December 2022 Emergency Department Note. The Veteran did not mention this employment one month later at his January 2023 Board Hearing. The December 2022 treatment record is the most recent medical record since the Veteran submitted the March 2020 VA From 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran's December 2022 statement directly contradicts his January 2023 sworn testimony (one month later) to the Board and renders his statements about not working non-credible. Therefore, the evidence shows persuasively that the symptoms attributable to the Veteran's service-connected disabilities do not render him unable to obtain and maintain employment during the period on appeal. The Veteran's assertions regarding his employment are contradictory and therefore not credible. Therefore, a TDIU is not warranted, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.