Citation Nr: 24015463 Decision Date: 04/10/24 Archive Date: 04/10/24 DOCKET NO. 16-51 870 DATE: April 10, 2024 ORDER An evaluation in excess of 70 percent for a psychiatric disability, diagnosed as posttraumatic stress disorder (PTSD) and opioid use disorder, is denied. A total disability based on individual unemployability due to service-connected disability (TDIU) is denied. REMANDED Entitlement to service connection for migraines, to include secondary to a psychiatric disability, is remanded. Entitlement to service connection for chronic back pain, to include secondary to a psychiatric disability, is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's psychiatric symptomatology more closely approximated occupational and social impairment with deficiencies in most areas, rather than total occupational and social impairment. 2. The evidence of record does not demonstrate that the Veteran was precluded from obtaining or maintaining substantially gainful employment due to his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 70 percent for a psychiatric disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2003 to March 2006. These matters come before the Board of Veterans' Appeals (Board) from a May 2014 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office that in pertinent part awarded a 70 percent evaluation for PTSD. The Veteran timely appealed that decision with a November 2014 Notice of Disagreement, VA Form 21-0958. The Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC) in August 2016. The Veteran timely submitted an October 2016 Substantive Appeal, VA Form 9, expressly raising the issue of a TDIU for the first time. In a June 2021 decision, the Board remanded the issues of an increased evaluation for PTSD and entitlement to a TDIU for further development, to include obtaining a current mental health examination and providing the Veteran an opportunity to identify additional private treatment records and to submit documentation supporting his claim for a TDIU, including a VA Form 21-8940. Following this development, the AOJ issued a November 2021 Supplemental Statement of the Case continuing the 70 percent evaluation for the Veteran's psychiatric disability and denying a TDIU. As an initial matter, the Board finds that there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Increased Evaluation for Psychiatric Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). This claim stems from a claim for increased evaluation received by VA on January 28, 2013. Accordingly, the Board has reviewed the evidence since January 28, 2012, in conjunction with this claim for increased evaluation. See 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran contends he is entitled to a 100 percent evaluation for his service-connected PTSD. For the entire period on appeal, the Veteran's PTSD has been evaluated at 70 percent under DC 9411 using the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted 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. Id. 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 inability 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. Id. 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 other words, 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). 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). Finally, in Bankhead, the United States Court of Appeals for Veterans Claims held that the language of the general rating formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." See Bankhead, supra. Turning to the evidence of record, the Veteran attended a VA PTSD examination in December 2013. In the examination report, the examiner noted a diagnosis of PTSD. The Veteran's symptoms noted in the examination report are: anxiety; chronic sleep impairment; and, disturbance of motivation and mood. The examiner observed the Veteran to be fully oriented, alert, cooperative, and well-groomed. The examiner noted the Veteran's speech and thought content were within normal limits, and his thought processes were logical and goal-oriented with no evidence or report of delusions or hallucinations. The examiner described the Veteran's memory and attention as grossly intact and his insight and judgment as fair. The Veteran denied suicidal and homicidal ideation. Socially, the Veteran reported that he had been married for four years at the time of the examination, though he withdraws from her due to emotional numbing. He also reported that he has friends with whom he plays hockey and hangs out on the weekends. Occupationally, the Veteran indicated that he has been employed by UPS since his separation from service. He stated he likes work and that he thinks it is good for him. However, he also noted he sometimes becomes overwhelmed, anxious, and irritable, particularly in response to a trigger, such as a pothole, diesel fuel, or truck backfires. The Veteran attended an additional VA PTSD examination in April 2014. In that examination report, the examiner noted a diagnosis of PTSD. The Veteran's symptoms noted in the examination report are: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; flattened affect; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and, impaired impulse control, such as unprovoked irritability with periods of violence. The examiner observed the Veteran to be on time, well-groomed, and casually dressed. The examiner noted the Veteran maintained good eye contact and was cooperative during the examination, though the Veteran's mood was anxious with a flat affect. The examiner described the Veteran's speech as fluent, his thought process as logical, coherent, and goal directed, and his thought content to be appropriate with no evidence of perceptual disturbance or delusional thinking. The examiner noted the Veteran's judgment and insight were intact. The Veteran denied suicidal and homicidal ideation. Socially, the Veteran reported he had been married for five years. The Veteran indicated he avoids large crowds, though he did report attending events where crowds are present, namely hockey games. Occupationally, the Veteran stated he was employed with UPS, a position which he had held for eight years at the time of the examination. The Veteran reported he considered attending a six-week residential treatment program, but he did not want to take off work for that long. The Veteran attended a third VA PTSD examination in November 2021. In that examination report, the examiner noted diagnoses for PTSD and opioid use disorder. The examiner indicated it was not possible to differentiate between the symptoms of each diagnosis and that, in any event, the Veteran's opioid use disorder is proximately due to or the result of his PTSD; specifically, the examiner described the Veteran's opioid use disorder as a maladaptive coping mechanism for the symptoms of his PTSD. The Veteran's symptoms noted in the examination report are: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and, difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner observed the Veteran to be appropriately groomed, alert, and oriented with appropriate eye contact, normal speech, and normal psychomotor activity. The examiner described the Veteran to be friendly and cooperative and his thought processes to be logical, linear, and goal directed, though he found the Veteran had mild difficulties with concentration and memory. The examiner noted the Veteran's judgment and insight appeared normal. The Veteran denied suicidal and homicidal ideation. Socially, the Veteran reported he was still married and that he now had three young children. The Veteran indicated that he socializes with the parents of his children's friends and that he stilled played hockey, though he also mentioned his motivation for engaging in social situations was low. He also stated he had been temporarily removed from his hockey league due to an incident where he damaged some property while enraged. Occupationally, the Veteran reported that he continued to work at UPS. The Veteran reported that he occasionally missed work, sometimes multiple weeks of work, particularly in 2015 and 2019, though he always advised his employer of the situation. The Veteran also reported he struggles with occupational stress, anxiety, panic attacks, and difficulty concentrating; however, he reported that he has coping mechanisms for these incidents, including pulling over and not driving during them. The Board acknowledges and has considered the Veteran's November 2014 and July 2021 lay statements regarding his PTSD. In the November 2014 statement, the Veteran indicated he has chronic insomnia and daily night terrors that result in impaired judgment and mood and decreased work productivity and efficiency. The Veteran also indicated he has missed a lot of work due to his PTSD symptoms. Socially, the Veteran stated that his memories from service make him feel detached and alone. He also indicated he experiences disproportionate emotional responses, including an increased startle response, road rage altercations, and disciplinary actions at work. In the July 2021 statement, the Veteran indicated his symptoms are sleeplessness, anger issues, flashbacks, unspecified physical pain, night terrors, anxiety, and depression, which he described as increasingly intense over the years. The Veteran also described the circumstances of his drug addiction, his outbursts of anger, his sleep problems, and his intrusive thoughts and nightmares. The Board also acknowledges and has considered the various buddy statements submitted in support of the Veteran's claim. For example, in a November 2013 statement, the Veteran's wife described the Veteran's symptoms as sleeplessness, nightmares, flashbacks, depression, paranoia, outbursts of anger, and withdrawing from loved ones; she also noted that although the Veteran works at UPS, he has been subject to numerous disciplinary actions and suspensions and misses quite a bit of work due to his PTSD. In a July 2021 statement, the Veteran's wife reiterated his PTSD symptoms and stated that the Veteran has chronic back pain and migraines that sometimes require hospitalization. She also recounted two incidents where the Veteran experienced outbursts of anger; specifically, the Veteran ran someone off the road for honking the horn at him and told a security guard he would kill the guard and the guard's family because the guard was rude to him. In November 2013, the Veteran's mother-in-law indicated the Veteran's PTSD disrupts his family life. The Veteran's father-in-law submitted a July 2021 statement indicating the Veteran sometimes has to take extended medical leave from his job due to his PTSD and describing the Veteran's symptoms as inability to sleep, nervous stress, hyperactivity, flashbacks, severe depression, and anger management issues. VA treatment records for the period on appeal consistently show the Veteran denied suicidal ideation. See, e.g., VA treatment records dated August 22, 2016, November 18, 2015, November 5, 2014. The records also generally indicate the Veteran's appearance, eye contact, motor function, thought processes, insight, judgment, and speech are within normal limits and/or intact. See Id. After careful consideration of the record, the Board finds the Veteran's overall level of impairment most closely approximates occupational and social impairment with deficiencies in most areas rather than total occupational and social impairment. The Board has considered the Veteran's specific argument that he displays grossly inappropriate behavior indicative of a 100 percent evaluation; based on the incidents described by the Veteran's wife, this contention is not without merit. However, a single symptom does not justify a 100 percent evaluation; rather, the Board must make a holistic evaluation of the Veteran's total disability picture. In this regard, the Board notes the Veteran's history of working at UPS. Though his employment is not without difficulty, he has been able to maintain his job for more than a decade. Socially, the Veteran has maintained a successful marriage for more than a decade and now has three children from that marriage. He also engages in social activities with the parents of his children's friends and participates in a hockey league with his friends. Behaviorally, the Veteran is consistently described as appropriately groomed and oriented, his speech is consistently described as normal, and his thought processes are consistently described as logical and goal-oriented without evidence of delusions or hallucinations. In short, while it is clear that the Veteran's PTSD has affected his occupational and social functioning, it has not resulted in total impairment. The Board accordingly denies an evaluation in excess of 70 percent for the Veteran's psychiatric disability. 38 C.F.R. §§ 4.7, 4.130, DC 9411. In so reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU for the entire period on appeal and that he is employed in a protected environment. Alternatively, the Veteran claims he is entitled to a TDIU for 2015 and 2019 because he was not able to work for periods of these years. Following the June 2021 Board decision remanding the issue of a TDIU for further development, VA asked the Veteran to provide a completed VA Form 21-8940 in a July 29, 2021, written correspondence; however, he did not do so. Although VA has a duty to assist in the development of a claim, it is not "a one-way street." Wood v. Derwinski, 1 Vet. App. 190 (1991); 38 C.F.R. § 3.655. The Veteran must participate in the development of his claim, and, ultimately, the Veteran is responsible for providing evidence that demonstrates entitlement to a TDIU. As such, although the Veteran did not provide a completed VA Form 21-8940, the form was solicited. Accordingly, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, supra, where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person 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, this disability shall be ratable at 60 percent or more, or 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 a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor that takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran and his representative have argued that the TDIU claim was implicit in the Veteran's claim for an increased evaluation for his service-connected PTSD. In this regard, the Board reflects that it has jurisdiction over the PTSD claim, addressed above. Accordingly, the Board notes that TDIU is before the Board for the period beginning January 28, 2012, as it is part and parcel of the claim for increase before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, during the period before the Board, the Veteran is service connected for PTSD with a 70 percent evaluation. See, e.g., November 2021 Rating Decision. Accordingly, throughout the pendency of the appeal, the Veteran met the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). The question therefore becomes whether the Veteran's service-connected disability precluded him from obtaining and maintaining substantially gainful employment. The Board finds that it did not. As noted above, the Veteran was asked to provide a completed VA Form 21-8940; however, he did not do so. The Board therefore turns to the other evidence of record to obtain information on his work history. During a December 2013 VA PTSD examination, the Veteran reported that he has worked for UPS since his separation from service. The Veteran indicated he was still working at UPS in a November 2021 VA PTSD examination, though he reported he has had to take several leaves of absence due to medical issues. Lay statements also indicated that the Veteran had to take extended leaves in 2015 and 2019. From this evidence, the Veteran has been gainfully employed throughout the appeal period, except for two unspecified periods of time in 2015 and 2019. For the period in 2015, it appears the Veteran's leave of absence may have been related to a knee surgery. See VA treatment record dated January 19, 2016. Additionally, it appears some absences may be related to hospitalizations for migraines, for which the Veteran is not currently service-connected. See June 2021 Buddy Statement. In any event, the Veteran has not provided specific dates of unemployment to evaluate his claim. Thus, the Veteran's claim for a TDIU is denied at this time. See Wood, supra. The Board has also considered the Veteran's specific contention that he works in a protected environment. See 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims recently held that "employment in a protected environment" means a "lower income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, No. 21-4467 and No. 20-8562 (Vet. App. Jan. 24, 2024). The Veteran has not submitted income information for his position, so the Board cannot determine whether the Veteran's position is a lower-income position within the meaning of the regulation. In addition, it is not clear to the Board how the Veteran's job at UPS, a national shipping company, is shielded from competition in the employment market. Accordingly, the Veteran's claim for a TDIU based on employment in a protected environment cannot be granted as this time. See Wood, supra. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, supra. REASONS FOR REMAND The Board notes that the Veteran did not file a claim for service connection for migraines or chronic back pain secondary to his PTSD. However, the November 2021 VA examination noted that the Veteran also has chronic pain and migraines that are relevant to the understanding or management of his mental health disorder. Additionally, the Veteran's wife indicated that the Veteran's chronic back pain and migraines are aggravated by the Veteran's PTSD. See July 2021 Statement (stating that the Veteran's chronic back pain and migraines are "more persistent when he is going through a depressive period"). Consistent with VA's duty to maximize benefits, the Board must consider all possible schedular bases for separate ratings, including secondary service connection. See Morgan v. Wilkie, 31 Vet. App. 162, 167 (2018). In this regard, CAVC has held that under 38 C.F.R. § 3.155(d)(2), a formal claim for secondary service connection need not be filed when entitlement to secondary service connection is raised by the record; rather, VA must consider those "complications" in connection with the claim on appeal. See Bailey v. Wilkie, 33 Vet. App. 188 (2021). As such, the Board finds that a claim for service connection for chronic back pain and migraines, secondary to PTSD, is within the scope of this appeal and has taken jurisdiction of those issues. Because the AOJ has not developed these claims, a remand is necessary to properly develop and adjudicate the claim in compliance with the scope of this claim as articulated by CAVC's holdings in Morgan and Bailey. ? The matters are REMANDED for the following action: The AOJ must properly develop and adjudicate the Veteran's claims for service connection for chronic back pain and migraines, to include as secondary to his service-connected PTSD. MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuhns 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.