Citation Nr: 18160537
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-55 147
DATE:	December 27, 2018
ORDER
Entitlement to an earlier effective date prior to February 16, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD), is denied.
Entitlement to a rating of 70 percent for PTSD for the prior to April 20, 2015, is granted.
Entitlement to rating in excess of 70 percent for PTSD is denied.
Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) is denied.
FINDINGS OF FACT
1. A claim of entitlement to service connection for a nervous disorder was denied in a December 1970 rating decision that became final.
2. No formal or informal claim for service connection for a psychiatric disorder (including PTSD) was received from the Veteran or his representative prior to February 16, 2010.
3. The evidence of record indicates that the Veteran’s PTSD symptoms have been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, throughout the appeal period.  
4. At no point during the appeal period has the Veteran’s PTSD resulted in total occupational and social impairment.
5. The more probative and competent evidence of record preponderates against a finding that the Veteran’s disabilities are of such a nature and severity as to prevent him from securing or following substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for an effective date prior to February 16, 2010, for the grant of service connection for PTSD have not been met.  38 U.S.C. §§ 5103, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2017).
2. The criteria for a rating of 70 percent for PTSD prior to April 20, 2015, have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, DC 9411 (2017).
3. The criteria for a rating in excess of 70 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, DC 9411 (2017).
4. The criteria for entitlement to a TDIU rating have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b), 4.25 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service in the United States Army from August 1966 to July 1968, earning the Purple Heart.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.
There is an indication from the evidence that the Veteran’s service-connected PTSD prevents him from working.  As such, the issue of entitlement to TDIU has been raised by the record and is part and parcel to the Veteran’s increased ratings claims.  Rice v. Shinseki, 22 Vet. App. 447 (2009).
Earlier Effective Date
The Veteran seeks an effective date earlier than February 16, 2010, for the grant of service connection for PTSD.  He originally sought service connection for a nervous disorder that was denied in a December 1970 rating decision.  The Veteran was notified of this decision by way of a letter that was sent to his last known address of record that same month.  There is no indication that the letter was returned as undeliverable and the Veteran does not contend that he did not receive the notification.  The Veteran did not submit a Notice of Disagreement with the December 1970 rating decision, nor did he submit any additional evidence concerning his claim within one year of that rating decision.  Thus, the decision became final.  See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.  
On February 12, 2010, VA received correspondence from the Veteran’s wife concerning his PTSD.  She was not listed as his representative at that time.  A claim for service connection for PTSD was received by VA from the Veteran’s representative on February 16, 2010.  Service connection for PTSD was ultimately granted and the effective date assigned for service connection was February 16,2010, the date the Veteran’s claim was received.
Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(q).  As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which as noted above was received by VA on February 16, 2010.  See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003).
Because the Veteran’s PTSD was caused by an in-service stressor, service connection was established.  It does not follow, however, that because service connection is warranted that the effective date of service connection be the day following service or the date he filed his original claim because doing so would render meaningless many of the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Indeed, in Sears, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pursuant to 38 C.F.R. § 3.400(q), which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received.  Id. at 1332.  Thus, under the law, there is no basis to assign an earlier effective date for service connection for PTSD.
Increased Rating
Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern.  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  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 (2017).
The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130, Diagnostic Code 9411.  He is in receipt of a 50 percent rating prior to April 20, 2015, and as 70 percent disabling since that date. 
Ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment.  See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013).  The rating criteria includes a non-exhaustive list of symptoms, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation.  Bankhead, 29 Vet. App. at 18 (quoting Vazquez-Claudio, 713 F.3d at 116-17) (quotations omitted).  Thus, a veteran may qualify for a given disability rating by demonstrating that he or she suffers from the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms caused the level of occupational and social impairment associated with a particular disability evaluation.  Bankhead, 29 Vet. App. at 18; Vazquez-Claudio, 713 F.3d at 116-17.  In sum, “VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.”  Bankhead, 29 Vet. App. at 22 (internal citations omitted).
Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned for 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 a work like setting); inability to establish and maintain effective relationships.
Finally, 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; memory loss for names of close relatives, own occupation, or own name.  See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016).
When evaluating a mental disorder, the Board shall consider the frequency, severity, and duration of psychiatric symptoms, the 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.
1. Rating in Excess of 50 Percent Prior to April 20, 2015
Throughout the appeal period the Veteran’s PTSD symptoms have included irritable behavior, angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including in a work-like setting.  The April 2015 VA examiner noted that the Veteran reported suicidal ideation, having thoughts that if he were dead, he’d be over his symptoms of PTSD and depression.  The April 2015 VA examiner further noted that there had been no significant changes in the Veteran’s history since his last examination.  The reports of the Veteran’s wife concerning the severity of his symptoms throughout the appeal period indicate that his symptoms have been consistent.
After looking to the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture, the Board finds that the preponderance of evidence demonstrates that disability due to the Veteran’s psychiatric disorder has approximated the schedular criteria for a rating of 70 percent throughout the appeal period.  See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation.  See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”).  Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports a 70 percent disability is warranted for the period prior to April 20, 2015.  
2. Rating in Excess of 70 Percent
The Board finds that the Veteran’s PTSD has not been productive of total occupational and social impairment during the appeal period.  The March 2013 VA examiner noted the Veteran’s reports of having a supportive and close relationship with his wife.  The Veteran also reported a good relationship with his three adult children and two grandchildren.  Both the Veteran and one of his children helped his wife with her tax preparation business after he retired as a letter carrier in December 2008.  The November 2016 VA examiner reported similar findings with regard to the Veteran’s social relationships, observing that the Veteran remained married and had three adult children with whom he had a good relationship.  Additionally, the Veteran reported at the November 2016 VA examination that he had one friend and he enjoyed doing projects with wood.  He also reported that he continued to help his wife with her tax preparation business.  Moreover, there is no evidence that the Veteran suffered from 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, or an overall level of symptomatology supportive of a higher rating.  In sum, the evidence shows that the Veteran was not so disabled by his PTSD symptoms that he was rendered totally occupationally and socially impaired at any point during the appeal period.  Thus, a 100 percent rating is not warranted.    
TDIU
The Veteran has essentially contended that his service-connected PTSD prevents him obtaining and maintaining substantially gainful employment.
Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340. 
Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id.  Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  
However, if the percentage ratings of 38 C.F.R. § 4.16(a) are not met but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability or disabilities, an “extraschedular TDIU” may be assigned and the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321.
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 determining whether unemployability exists for TDIU, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by any nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.
In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes her case outside of 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, 363 (1993).
The Veteran’s service-connected disabilities include: (i) PTSD (70 percent) and (ii) right elbow residual scars (zero percent).  Therefore, he meets the schedular criteria for TDIU for the entire period on appeal.   
The record indicates that the Veteran last worked as a letter carrier and retired in July 2009 on disability.  According to a U.S. Department of Labor attending physician’s report, the Veteran received a right total knee replacement in March 2009.  In August 2015, his physician indicated that the Veteran was unable to walk and was permanently, totally disabled.
At the March 2013 PTSD examination, the Veteran indicated that he and one of his children help his wife with her tax preparation business.  However, he retired as a letter carrier after 20 years.  The Veteran stated that he hated the job because he did not like being outdoors for eight hours a day in inclement weather, but he denied having any difficulty with concentration or with getting along with others on the job.  He said the management was happy with his performance and that people liked him.  The Veteran also reported spending time with his broth and several other local friends, and that he enjoyed camping and traveling locally with his wife.  He reported working on woodworking projects in his shed, building birdhouses that he occasionally sells. He stated that he spend “a lot” of time supporting his wife’s tax preparation business.  At the April 2015 VA examination, the Veteran reported that he continued to assist his wife with her tax preparation business, but that he was doing so less and less.  During the November 2016 VA examination, he reported that he continued to assist his wife with her business.  
Here, the Veteran essentially maintains that his service-connected PTSD renders him unable to maintain gainful employment.  The Veteran submitted his Veteran’s Application for Increased Compensation Based on Unemployability, VA Form 21-8940, in October 2016 and indicated that his PTSD prevented him from securing or following any substantially gainful occupation.  The Veteran also indicated that he was retired under disability.  The Veteran’s wife submitted a statement in November 2016 and indicated that the Veteran stopped working in 2008 and had to take an early retirement based on disability in July 2009.  After that, “he could not function.”  
The Board acknowledges the assertions of the Veteran and his wife, but notes that the evidence must indicate that the Veteran is unable to pursue a substantially gainful occupation due solely to his service-connected disabilities.  The mere fact that a veteran happens to be unemployed for a period of time or has difficulty obtaining a position in the available employment marketplace is not enough.  A high disability rating in and of itself is recognition that the impairment makes it difficult to obtain or retain gainful employment, but the ultimate question is whether the veteran is individually capable of performing the physical and mental acts that are required by employment, without consideration of his advanced age or of the effects of nonservice-connected disabilities.  Van Hoose v. Brown, supra.
In reviewing the record, although the Veteran maintains he was unable to maintain gainful employment due to his PTSD, VA records do not ascribe an inability to work due to them.  While the record suggests that the Veteran’s service-connected PTSD did have some effect on his employability, the most probative evidence of record does not support a finding that he was unable to maintain gainful employment solely due to this disorder.  Contrary to his assertions, the evidence shows that the Veteran retired from work as a letter carrier due to a right knee injury, not as a result of his service-connected PTSD.  He indicated that he did not experience any mental health symptoms at work, and was well liked by fellow employees.  Furthermore, the record indicates that the Veteran assists his wife with her tax preparation services and continues with his woodworking hobby.  While the Board is not finding that this constitutes “substantially gainful employment,” it does suggest that the Veteran has sufficient concentration and mental capacity to complete occupational tasks.  
In conclusion, while the Board does not wish to minimize the nature and extent of the Veteran’s overall service-connected PTSD, the evidence of record simply does not support his claim that it is sufficient to produce unemployability.   Although his PTSD exhibits a degree of impairment, the evidence does not reflect that gainful employment is precluded solely due to it.  To the extent the Veteran is limited by his service-connected PTSD, any such limitation is contemplated in, and is being adequately compensated by, the current disability rating assigned for this disorder.
 
TRACIE N. WESNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Daniels, Associate Counsel 

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