Citation Nr: 23067433 Decision Date: 12/26/23 Archive Date: 12/26/23 DOCKET NO. 18-38 297A DATE: December 26, 2023 ORDER Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) prior to September 28, 2021, and higher than 70 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 28, 2021, is granted, subject to the laws and regulations governing the award of monetary benefits. From September 28, 2021, entitlement to TDIU is dismissed as moot. FINDINGS OF FACT 1. Prior to September 28, 2021, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. After September 28, 2021, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 3. Affording the Veteran, the benefit of doubt, his service-connected disabilities preclude substantially gainful employment. 4. From September 28, 2021, the Veteran has a combined schedular rating of 100 percent based upon multiple service-connected disabilities with no single disability rated as 100 percent disabling. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 50 percent for PTSD prior to September 28, 2021, and higher than 70 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.130, Diagnostic Code (DC) 7411 2. The criteria for entitlement to TDIU, prior to September 28, 2021, have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25. 3. From September 28, 2021, the claim of entitlement to TDIU is moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16; Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1971. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2021Board hearing in. A transcript of that hearing is of record. These matters were remanded by the Board in March 2023. The Board finds there has been substantial compliance with its remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating higher than 50 percent for PTSD prior to September 28, 2021, and higher than 70 percent thereafter The Veteran contends that his rating for PTSD warrants a higher rating. The Board finds that the evidence of record is persuasively against the claim for a disability rating greater than 50 percent prior to September 28, 2021, and greater than 70 percent thereafter. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently evaluated as 50 percent disabling from November 29, 2012, to September 28, 2021, and 70 percent thereafter. DC 9411. When assessing psychiatric disorders under the General Formula for Mental Disorders (General Formula), 38 C.F.R. § 4.130 provides assigning a 50 percent rating 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 when 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, own occupation or own name cause total occupational and social impairment. 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 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 (2002). 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 (Fed. Cir. 2013). The Agency of Original Jurisdiction (AOJ) construed a July 11, 2017, claim for TDIU as including a claim for increased rating for PTSD. On VA examination in July 2017, the examiner characterized the impairment related to the Veteran's PTSD as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran told the examiner he had retired from his job with TSA at age 64. He said his primary social interaction is with his family and a small church group. The specific symptoms endorsed by the Veteran were depressed mood; suspiciousness; chronic sleep impairment; disturbances of motivation and mood. The examiner noted that the Veteran was casually attired and adequately groomed. He was alert and oriented to his surroundings and cooperative. His mood, affect, eye contact and speech were within normal range. His thought process, content, and perception appeared to be within the normal range. The examiner opined that the Veteran's reported depressive symptoms appear to be part of his PTSD clinical presentation. The examiner also reported that the Veteran's service-connected PTSD has some potential negative impact on his ability to function in an occupational environment. Due to the Veteran's irritability, his ability to function effectively could be affected in job functions that require sustained interpersonal interaction. His symptoms of diminished interest in activities, persistent emotional state, and disturbances of motivation and mood could reduce the consistency of his job performance. A March 2019 VA treatment record documented the Veteran's reports of PTSD, aggression, anxiety, nightmares, daily visual hallucinations, grief and insomnia. The Veteran denied suicidal or homicidal ideations or intent. In September 2021, the Veteran submitted a claim for increased rating for several disabilities, including PTSD. The Veteran was given a VA examination in October 2021. The examiner characterized the impairment related to the Veteran's PTSD as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran has been married to his 4th wife for 7 years and described significant stress secondary to his PTSD. The Veteran reported to the examiner that he continues to struggle with severe PTSD and endorsed passive suicidal ideation, but he denied plan or intent. The specific symptoms endorsed by the Veteran were depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships, and; suicidal ideation. The Veteran testified at his October 2021 Board hearing that he was hospitalized for one month in the 1980's for his depression. The Veteran stated that he experiences angry outbursts has nightmares every night and sees objects when he wakes up in the morning. In a February 2022 rating decision, the AOJ increased the rating for PTSD to 70 percent, effective September 28, 2021, the date the Veteran filed for an increased rating for PTSD (during the pendency of the current appeal). The Board remanded the claim in April 2022 and March 2023 for private treatment records. Some records were received after the April 2022 remand, but Veteran did not respond to a development letter sent after the March 2023 remand. Private medical records that are associated with the file include psychiatric treatment records received in May 2022. A May 2022 treatment record detailed the Veteran's report that he has been struggling with anxiety. He reported having an anxiety attack after taking what he characterized as "too many" THC gummies during which he thought he was dying and was taken to the emergency room. He said he was treated with IV fluids and discharged after a few hours. On current examination, the treatment provider noted the Veteran was cooperative; speech, normal; mood, sad and depressed; affect was congruent. The Veteran's thought process was goal directed, liner and logical; thought content was normal and future oriented, without suicidal ideation. The Veteran fully oriented. Judgment, memory and attention were intact. In October 2023, the Veteran was given a VA examination. The examiner characterized the impairment related to the Veteran's PTSD as occupational and social impairment with reduced reliability and productivity. The specific symptoms endorsed by the Veteran were depressed mood; anxiety; suspiciousness, and disturbances in motivation and mood. The examiner noted that the Veteran was appropriately attired and groomed. He was alert and oriented to person, place, situation, and time and his long and short-term memory appeared intact. The Veteran's thought processes were logical, and goal directed. He did not have any delusions or hallucinations and he denied suicidal ideation. The Board finds that the persuasive evidence of record is against finding for a disability rating greater than 50 percent prior to September 28, 2021, and greater than 70 percent thereafter. Prior to September 28, 2021, the Veteran reported symptoms of depressed mood; suspiciousness; chronic sleep impairment; disturbances of motivation and mood. The Veteran did not, however, report 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Cognitive abilities were intact and the Veteran interacted socially with his family and a small church group. The criteria for the next higher, 70 percent rating are not met of more closely approximated prior to September 28, 2021. The AOJ assigned the 70 percent rating from the date of a September 2021 claim for an increased rating for PTSD. However, the claim was already on appeal before the Board from the July 2017 claim. An effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. The effective date for staged ratings is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219 (2015). Based upon the evidence in this case, the exact onset of the 70 percent level of disability cannot be determined with any certainty. As discussed, the evidence prior to September 28, 2021, does not make a 70 percent disability level factually ascertained prior to that date. For the period after September 28, 2021, VA treatment records, the October 2021 and October 2023 VA examinations, and the Veteran's lay statements show that the severity, frequency, and duration of the psychiatric symptoms are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The evidence does not show that the criteria for a 100 percent rating are met or more closely approximated. The Veteran has not demonstrated gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The October 2023 VA examiner described the Veteran as appropriately attired and groomed. He was alert and fully oriented and long and short-term memory appeared intact. His thought processes were logical, and goal directed. There were no delusions or hallucinations and the Veteran denied suicidal ideation. The Veteran's symptoms and related impairment to not more closely approximate total occupational and social impairment. Treatment records and VA examinations have shown that the Veteran has occupational and social impairment, with deficiencies in most areas, such as work and mood. The persuasive evidence of record weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating after September 28, 2021. In summary, the evidence of record persuasively weighs against finding for a rating greater than 50 percent prior to September 28, 2021, for PTSD and greater than 70 percent thereafter. 38 U.S.C. § 5107(b); See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Thus, the benefit of the doubt doctrine is not for application. 2. Entitlement to TDIU A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is service connected for PTSD, hearing loss and tinnitus as well as diabetes (with multiple, separately compensated complications). The separately service-connected complications of diabetes include peripheral vascular disease affecting the bilateral upper extremities, peripheral neuropathy affecting multiple nerves in the bilateral upper and lower extremities, erectile dysfunction and cataracts. The schedular rating for TDIU have been met since November 29, 2012. 38 C.F.R. § 4.16. The Veteran's combined disability rating is 80 percent from November 29, 2012; 90 percent from January 20, 2016, and; 100 percent from September 28, 2021. The Veteran filed a claim for TDIU on July 11, 2017. On the application for TDIU (VA Form 21-8940), the Veteran reported that he last worked in November 2013 as a supervisor for the U.S. Department of Homeland Security, Transportation Security Administration. The Veteran reported having one year of college and stated he stopped working due to his service-connected diabetes and PTSD. The Veteran was given a VA examination in July 2017 for his PTSD. The examiner directly opined on the Veteran's ability to function in an occupational environment. The examiner stated, Veteran's service-connected PTSD has some potential negative impact on his ability to function in an occupational environment. Due to his irritability, Veteran's ability to function effectively could be affected in job functions that require sustained interpersonal interaction. Moreover, his symptoms of diminished interest in activities, persistent emotional state, and disturbances of motivation and mood could reduce the consistency of his job performance. The Veteran was also given a VA examination in July 2017 for his service-connected diabetes. The examiner also provided an opinion on the Veteran's ability to function in an occupational environment. The examiner stated that the Veteran was a high risk for falls and injury. He had an inability to stand/ambulate for extended periods due to his service-connected diabetic neuropathy and that the Veteran was limited in his sedentary duties. Evidence against the claim is the March 2019 VA treatment note where the Veteran reported that he has pain in back and sciatica which are quite disabling and those symptoms contributed to his retirement in 2014 from TSA supervisors job. Although, the Veteran's back is not service connected, the Board acknowledges that the Veteran's lower extremity peripheral neuropathy is manifested by nerve impairment that is evaluated as impairment to the sciatic nerve as part of the service-connected peripheral neuropathy. Evidence in support of the claim is the July 2017 VA examination identifying the Veteran's service-connected PTSD and diabetic peripheral as obstacles for the Veteran to work in physical or sedentary environments. The Board finds that the Veteran is prevented from working as a result of his service-connected PTSD and diabetes and related service-connected complications. TDIU is warranted. The Veteran's combined disability rating is 100 percent from September 28, 2021. However, a grant of a 100 percent rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on service-connected disabilities other than the disability that is rated at 100 percent. Id. at 280. The Board finds that the Veteran does not meet the statutory requirements for the payment of SMC at the housebound rate based on one service-connected disability rated as 100 percent and a separate disability rated at 60 percent at any time during the appeal period. In this decision, the Board's grant of TDIU is not based on a single disability; the grant contemplates the service-connected PTSD and service-connected diabetes with related complications. Thus, the Veteran is not in receipt a 100 percent disability rating for a single disability; the case is distinguishable from Bradley. TDIU is warranted prior to September 28, 2021, but the claim for TDIU is moot as of September 28, 2021, when the 100 percent rating is in effect. Ultimately the question as to whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Therefore, the benefit of the doubt is resolved in the Veteran's favor; entitlement to TDIU is granted for the period on appeal prior to September 28, 2021. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.