Citation Nr: 1325066	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  10-09 195	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period prior to April 1, 2010.

2.  Entitlement to a total disability evaluation based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and H.R.



ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from December 1966 to November 1968.  He was awarded several decorations for this service, to include a Purple Heart.

This matter comes before the Board of Veterans' Appeals (Board) from a May 20092 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  The previously established 30 percent evaluation for the Veteran's PTSD was continued therein.  He appealed this determination.  In a June 2011 rating decision, the RO increased the Veteran's PTSD evaluation to 50 percent effective April 1, 2010.  The appeal continued for consideration of an even higher evaluation.  AB v. Brown, 6 Vet. App. 35 (1993).

In November 2011, the Veteran and his brother H.R. testified regarding this matter at a videoconference hearing before the undersigned Veterans Law Judge.  The Board increased the Veteran's PTSD evaluation to 50 percent for the period prior to April 1, 2010, and to 70 percent for the period beginning on this date in February 2012.  It was explained that, despite an appeal not yet having been perfected following the RO's denial, a TDIU was properly before the Board as part and parcel to his higher evaluation for PTSD.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  This issue then was remanded for development.

The Veteran appealed the portion of the Board's decision that denied an evaluation for his PTSD higher than 50 percent for the period prior to April 1, 2010, to the United States Court of Appeals for Veterans Claims (Court).  Specifically, his attorney and VA's Office of General Counsel filed a Joint Motion for Partial Remand (JMPR) in November 2012.  The Court issued an Order granting the JMPR later that same month.  The aforementioned portion of the Board's decision thus was vacated and remanded for adjudication action consistent with the JMPR.  Such action is taken herein.
Regarding a TDIU, the directed development has been completed or at least substantially completed regarding a TDIU.  Adjudication thus may proceed.  Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998).  Of note is that this development included readjudication via a supplemental statement of the case (SSOC).  An SSOC was issued in March 2013 regarding a TDIU as well as higher evaluations for each of the Veteran's service-connected disabilities.  While the discussion below reveals that evaluation of these disabilities is important when considering a TDIU, with the exception of PTSD their evaluations never were on appeal.  An SSOC shall not be used to announce decisions on issues not previously addressed during the appeals process.  38 C.F.R. § 19.31(a).  Higher evaluations for the non-PTSD disabilities therefore are not addressed herein.

Of final note is that additional pertinent evidence was submitted by the Veteran's representative in May 2013.  Attached was a representative statement waiving initial review of this evidence by the agency of original jurisdiction (AOJ), which in this case is the RO.  The Board accordingly may review it in the first instance herein.  38 C.F.R. § 20.1304(c).  The following determinations are made based on review of the Veteran's claims file and his Virtual VA "eFolder."

FINDINGS OF FACT

1.  The Veteran's PTSD did not cause occupational and social impairment with deficiencies in most areas during the period prior to April 1, 2010.

2.  The Veteran's service-connected disabilities, with a collective evaluation of 70 percent or higher including PTSD evaluated at 40 percent or higher, have not been of sufficient severity to render him unable to secure or follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 50 percent for PTSD for the period prior to April 1, 2010, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2012).

2.  The criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Before addressing the merits, the Board notes that VA has a duty of notification regarding a claim for VA benefits.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159.  VA must notify the claimant and his representative prior to initial adjudication by the AOJ of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Generic rather than specific notification of the evidence needed to substantiate a higher evaluation claim must be provided.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (overturning Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008)).  Information on how evaluations and effective dates are assigned also must be provided.  Id.; Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)).  None is found.  A March 2009 letter informed the Veteran, who was unrepresented at the time, of the criteria for establishing a higher evaluation and a TDIU, the evidence required in this regard, his and VA's respective duties for obtaining evidence, and how evaluations and effective dates are assigned.  This letter was dated prior to the initial adjudication by the AOJ/RO via the May 2009 rating decision.  Although after this rating decision, repeat notice of some or all of the aforementioned was provided to the Veteran in letters dated in September 2009, October 2009, and January 2010 and to him and his representative in letters dated in February 2012.  The September 2009 letter additionally provided information regarding the criteria for establishing a higher evaluation specifically for PTSD.  One of the February 2012 letters was sent pursuant to the Board's remand.

In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This includes a requirement to aid the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3).  VA also is required to provide a medical examination and/or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

Service treatment records and VA treatment records regarding the Veteran have been obtained by VA.  No private treatment records have been obtained by VA.  The Veteran has had opportunities to identify such records, such as by responding to the aforementioned letters, but he has not done so.  Further, neither he nor his representative has submitted any such records.  Social Security Administration (SSA) records also have not been obtained by VA.  A request for them was made, but the response received from the SSA is that there are none.  VA medical examinations, most containing at least one medical opinion, were performed in March 2009, May 2009, March 2011, and March 2012.  These latter examinations were pursuant to the Board's remand.  To the extent the claims file or "eFolder" was not reviewed by the examiners, it is of no great import since the Veteran gave a reasonably accurate account of his medical history.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008).  All of the examiners interviewed him regarding his symptoms and undertook an assessment of him.  These actions have provided sufficient detail so that the determinations made herein are fully informed.  As such, the examinations are adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

It is significant that neither the Veteran nor his representative has identified any further development necessary for fair adjudication on the merits that has not been completed.  The record also does not indicate any further development.  Thus, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183.  Appellate review therefore may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).

Of final note, the individual presiding over a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The undersigned identified a TDIU as one of the issues on appeal at the videoconference hearing, which occurred after the relevant period for a higher evaluation for PTSD ended on April 1, 2010.  The undersigned and the Veteran's representative elicited information from him concerning the impact of his PTSD symptoms on his occupational functioning.  Information also was elicited from him concerning his treatment, but none for which records had not been obtained was noted.

II.  Higher Evaluation

A.  Schedular

Evaluations are assigned pursuant to VA's Schedule for Rating Disabilities.  Separate Diagnostic Codes identify various disabilities and the criteria for a specific evaluation to be assigned for that disability.  The evaluations represent as far as practicably can be determined the average impairment in earning capacity due to a disability.  38 U.S.C.A. § 1155.  An evaluation is assigned by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the evaluation criteria.  Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that evaluation of the disability is accurate.  38 C.F.R. § 4.2.  If two evaluations are potentially applicable, the higher is assigned if the disability more nearly approximates the criteria required for it.  Otherwise, the lower evaluation is assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant, however.  38 C.F.R. § 4.3.  He thus prevails if the evidence supports a higher evaluation or is in relative equipoise but does not prevail when it is against a higher evaluation.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Consideration must be given to whether a staged evaluation is, or staged evaluations are, warranted when an evaluation is appealed.  Francisco v. Brown, 7 Vet. App. 55 (1994).  In staged evaluations, two or evaluations are assigned because a disability meets the criteria for one evaluation during one period on appeal but meets the criteria for another evaluation or evaluations during another or other periods on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Veteran's PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  It calls for evaluation based on the General Rating Formula for Mental Disorders (Formula).  A 50 percent evaluation is warranted thereunder for occupational and social impairment with reduced reliability and productivity due to such symptoms 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, and difficulty in establishing and maintaining effective work and social relationships.  An evaluation of 70 percent requires occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting 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), and inability to establish and maintain effective relationships.  The maximum 100 percent evaluation is reserved 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of closes relatives, own occupation, or own name.

Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  Richard v. Brown, 9 Vet. App. 266 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994)).  GAF scores ranging from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  GAF scores ranging from 31 to 40 indicate impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).

An examiner's classification of the level of impairment, by GAF score or by words, is to be considered but is not determinative.  38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995).  The symptoms listed in Formula further are "not intended to constitute an exhaustive list, but rather are to serve as examples ... that would justify a particular" evaluation.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  It is not required that "all, most, or even some of the enumerated symptoms" be found in order to assign a particular evaluation.  Id.; 38 C.F.R. § 4.21.  Rather, all manifested symptoms impacting occupational or social impairment must be considered.  Id.; 38 C.F.R. § 4.126.  If they demonstrate occupational and social impairment equivalent to what would be caused by the symptoms listed, then the equivalent evaluation is to be assigned.  Id.  The JMPR therefore set forth that the effect of the symptoms, rather than the symptoms, is of primary import.  In this regard, the Board's previous decision was deemed conclusory and accordingly inadequate for concluding without discussing that the required effects of the Veteran's symptoms was not present.

The probative value of the evidence must be assessed.  38 C.F.R. § 4.6.  In other words, the Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Both medical and lay evidence may be discounted in light of inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).

Only the most relevant evidence need be discussed, even though all the evidence must be reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  This clearly includes the evidence dated from the time the Veteran filed the instant claim in February 2009 through the end of March 2010.  It also includes the evidence from February 2008 to February 2009.  The effective date indeed generally cannot be earlier than the date of receipt of the claim, but the effective date for a higher evaluation can be the earliest date such evaluation was factually ascertainable if the date is within the one year period preceding the date of receipt of the claim.  38 U.S.C.A. §§ 5110(a), (b); 38 C.F.R. § 3.400(o).

At the outset, the Board notes that the Veteran was diagnosed with depressive disorder not otherwise specified, major depression, major depressive disorder, social phobia, and alcohol dependence in addition to PTSD prior to April 1, 2010.  Service connection was not (and still is not) in effect for any of these disabilities other than PTSD.  Differentiation between symptoms attributed to a non-service-connected disability and those attributed to a service-connected disability must be based on medical evidence.  Mittleider v. West, 11 Vet. App. 181 (1998); Mitchem v. Brown, 9 Vet. App. 136 (1996).  Some attempt at differentiation was made by the examiner who conducted the Veteran's March 2009 VA psychiatric examination.  At least some of the Veteran's psychiatric symptoms were attributed to his PTSD as well as to one of his nonservice-connected disabilities, however.  Complete differentiation thus was not possible.  Further, no attempt at differentiation was made in VA treatment records.  It is reiterated that no other medical evidence exists.  All psychiatric symptoms therefore shall be attributed to the Veteran's service-connected PTSD and considered herein in light of the lack of differentiation.

The Board additionally notes that factors in assessing a medical opinion include the qualifications and expertise of the examiner, access to the claims file or other pertinent evidence, the scope of the examination, the accuracy of the factual premise underlying the opinion, the rationale offered for it, and the degree of certainty provided.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  None of these factors is significant with respect to the opinion rendered at the March 2009 VA psychiatric examination.  Finally, the Board notes that the Veteran and his brother are lay persons because there is no indication either has a medical background.  They are competent to report his symptoms and their effects.  Indeed, such is personally experienced by him and capable of being observed by his brother.  Layno v. Brown, 6. Vet. App. 465 (1994).  Factors for assessing competent lay evidence include interest, self-interest, bias, inconsistency, inconsistency with other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor.  Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  None of these factors is significant regarding the Veteran's reports of those of his brother.  Therefore, they are credible.  Their reports are truthful, in other words.

Early 2008 VA treatment records document the Veteran's complaints of difficulty sleeping, distressing recollections, markedly diminished interest and participation in activities, restricted range of affect, depressed mood, irritability, outbursts of anger, and difficulty concentrating.  He began treatment to include medication and therapy, and by mid-2008 his sleep, energy, interest, motivation, mood, and concentration were improving and he had less guilt.  He described his energy and mood as pretty good.  Sleep, libido, and concentration were still problems despite the improvement.  The Veteran reported that he continued to drink, lived alone with his dog, was in between girlfriends, had no children, had a support system including his mother, brother, and friends, and was employed full-time.  He had had no anger problems at work or home.  He also began walking his dog and playing basketball again as well as did some work on his boat.  In late 2008, he indicated that he went to the park a few times per week, was trying to restart a fun as opposed to serious relationship with a former girlfriend, and had a good holiday season to include fishing near his mobile home in Florida.  He further indicated that neighbors there greeted him warmly and that he let children play with his dog.  In early 2009, the Veteran noted that he no longer worked, was at peace with being alone, and was able to enjoy life.

The aforementioned VA treatment records show that upon assessment, the Veteran was well-kempt, neat, and appropriately dressed with good hygiene.  He was fully oriented, and his behavior was within normal limits.  There was no psychomotor agitation, but the Veteran sometimes had hypervigilant eye contact, shifted in his seat, and startled easily.  He occasionally asked odd questions.  His speech was characterized by a stutter and anxious tone but was normal in terms of amount, rate, and volume.  He was pleasant, cheerful, friendly, cooperative, and unguarded but also anxious and overly attentive.  His mood ranged from okay to pretty good to good to euthymic, while his affect was described as generally euthymic but also anxious, stable, congruent, broad, reactive, and of constricted to full in range.  The Veteran was visibly nervous, with increased stuttering and sweaty palms, when meeting a new doctor and prior to a minor procedure.  His thought process was linear, logical, organized, and goal-directed.  With respect to thought content, he denied delusions, hallucinations, and suicidal and homicidal ideation.  His thought content otherwise was appropriate.  His executive function, attention, and memory were intact.  It was noted that he was a good historian.  The Veteran's insight and judgment were fair.  One GAF score of 55 and several GAF scores of 60 were assigned.  Significant interference with occupational and social activities due to anxiety and avoidance was referenced.

In his February 2009 claim, the Veteran complained of sleep problems, nervousness in new situations, losing his temper, and having trouble taking orders.  He stated that he disliked crowds and preferred to do things himself or with his dog.  Finally, he noted that he had retired early from his position in the shipping department of a steel mill due to stress and hearing problems.

The Veteran complained of continuation of his symptoms, with increased nervousness and irritability but less guilt, at the March 2009 VA psychiatric examination.  He reported talking to his family twice per week over the telephone and feeling close with them although they do not generally talk about personal matters.  He also reported talking to a few neighbors daily, not having contact with his best friend in over a year because they had grown apart, generally being standoffish, and having more problems with relationships with men than women.  Finally, he reported being a member of a Veteran's organization but not attending meetings, doing things such as tending his yard and fishing on his own, and typically reading and watching television but also shopping and getting a few beers at the local pub.  With respect to employment, the Veteran indicated that he last worked in January 2009 from a full-time position which included supervision that he had held for eight years.  He added that he was in the process of retiring because he was concerned that his medication made him drowsy and therefore put himself and others at risk.  He further added that he was irritable at times, had gotten into arguments with coworkers, had difficulty managing new or unexpected situations as he felt overwhelmed, and had concentration and short-term memory problems such that he took longer to complete tasks because he double and triple checked his work.  However, he denied ever having been fired or reprimanded.

Upon assessment at this examination, the Veteran was clean, neatly groomed, and appropriately dressed.  He therefore was deemed capable of maintaining minimum personal hygiene.  He was fully oriented with no inappropriate behavior.  He had good eye contact and spontaneous speech of normal volume characterized by a slight stutter.  The Veteran was cooperative but tense and nervous, with sweaty and slightly shaky hands.  His mood was anxious, and his description of anxiety symptoms to include increased heart rate, lightheadedness, and shortness of breath one to two times per week when faced with a new situation was found not consistent with panic attacks.  His affect was appropriate and full.  His thought process and content was unremarkable.  In this latter regard, there was no indication of delusions or hallucinations.  The Veteran denied recent suicidal and homicidal ideation, though he admitted suicidal ideation the previous year when he was depressed and a shoving altercation with his brother in December 2008.  His attention and concentration were good, and no memory problems were observed.  No deficiencies regarding judgment and insight were noted.  A GAF score of 60 was assigned.  His symptoms were mentioned as being mild to moderate.  It was opined that they would have a moderate impact on his occupational functioning and a mild to moderate impact on his social functioning.  A May 2009 addendum clarified that the Veteran's symptoms of decreased attention and concentration would cause reduced efficiency and productivity.

The Veteran was tense and had marked stuttering upon VA general medical examination in May 2009.  His behavior, coherence of response, and comprehension were normal.  Mid-2009 VA treatment records reflect his belief that he was doing well but his complaints of having continued symptoms, with increased depression, impulsiveness, and trouble tolerating others but less stress since he quit work.  Reference was made to him getting into arguments and ruminating about his anger almost to the point of having racing thoughts.  The Veteran reported that he quit work because he just did not want to deal with the stress of it anymore.  He additionally reported getting out one to two nights per week, getting drunk with two buddies after each respectively was diagnosed with cancer, spending more time in Florida, picking up golf in addition to fishing to fill the void left by not working.  It was noted that he did not always take his medications, partially so that he could drink.  Assessment was the same as in the earlier VA treatment records, with the exceptions that the Veteran was sweaty, that his mood ranged from OK to anxious to irritable, and that no GAF scores were assigned.

Having only one or two friends was reported by the Veteran in statement dated in September 2009 but received in October 2009.  He also reported rarely going out anywhere.  In a November 2009 statement, the Veteran indicated that he can hardly talk due to his stuttering whenever he gets the least bit nervous.

In VA treatment records dated in late 2009, the Veteran complained of continued symptoms to include ruminating, heightened anxiety, and isolating himself more after watching a military program on television.  He reported spending lots of time Florida when he can relax and socializing primarily with his brother, as they worked two to three days per week landscaping together.  Wanting to get back to golfing but feeling that his anxiety was interfering, being very anxious while at a neighbor's wedding, not having had a serious relationship in the past few years, and feeling anxious at the home of his new lady friend around the holidays also were reported by him.  Finally, he reported fleeting thoughts of suicide but no intent or plan.  His brother called to report that the Veteran was acting strangely, to include abruptly leaving for Florida and giving away military memorabilia that was important to him to a neighborhood child, and that his drinking was out of hand.  Assessment was the same as in the earlier VA treatment records, with the exceptions that the Veteran was red-faced, appeared uncomfortable with stuttering and clammy palms in the presence of a male therapist such that he apologetically requested a female therapist, had limited eye contact and a depressed mood, and was assigned no GAF scores.  Early 2010 VA treatment records reveal that the Veteran's mood and anxiety had improved, though they were still problems, since he was more consistently taking his medications.  His other symptoms continued, to include difficulty sleeping and isolating.  In this latter regard, he reported isolating less in Florida where he hangs out with neighbors.  Assessment was the same as in the earlier VA treatment records, with the exception that his mood was anxious but not as depressed.

The Veteran reiterated that he rarely goes out in a January 2010 statement.  He also noted that he does not like to be around people and that his speech had gotten much worse in the past several years.

Given the above, the Board finds that an evaluation higher than 50 percent is not warranted for the Veteran's PTSD prior to April 1, 2010.  That the effect of his symptoms was occupational and social impairment with reduced reliability and productivity during this period is recognized by the assigned 50 percent evaluation.  Yet, there is no indication that these symptoms caused even occupational and social impairment with deficiencies in most areas sufficient for a 70 percent evaluation.  It follows that consideration of whether there is no indication of total occupational and social impairment sufficient for the maximum 100 percent evaluation is unnecessary.

The Veteran's symptoms did not include many of those enumerated as being indicative of causing occupational and social impairment with deficiencies in most areas.  Indeed, there is no indication that he manifested spatial disorientation, intermittently illogical, obscure, or irrelevant speech, obsessional rituals that interfered with routine activities, near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively, neglect of personal appearance and hygiene, or an inability to establish and maintain effective relationships.  He always was fully oriented, and the only problem with his speech was a stutter.  This stutter has not as of yet been attributed to his service-connected PTSD.  No obsessional rituals were mentioned.  The Veteran was considerably anxious, but it specifically was determined that he did not suffer from panic attacks.  The Veteran also was depressed to varying degrees, but he nevertheless successfully lived alone.  He was able to function independently and effectively, in other words, to include dressing appropriately as well as bathing and grooming himself to maintain minimum personal hygiene.  His behavior also always was appropriate albeit strange on occasion.  Finally, the Veteran concededly had difficulty with relationships.  Yet, he was able to maintain relationships with his mother, brother, neighbors, and a few friends or buddies.  He even described his family relationships as close.  He also was able to establish a relationship with a new lady friend.  Interaction between him and the VA examiner, who had only minimal contact with him, and between him and his VA treatment providers, who have more contact with him, was not problematic but instead cooperative and unguarded as well as pleasant given his cheerfulness and friendliness.

Some of the symptoms enumerated as being indicative of causing occupational and social impairment with deficiencies in most areas were manifested by the Veteran.  He ultimately thought fleetingly of suicide, though he initially did not have such ideation and though he never had corresponding intent or a plan.  His impulse control was somewhat impaired.  The Veteran was irritable and angry without specification as to the reason why.  He did not go through any discernible period of violence, but he and his brother got into one shoving altercation.  Arguments to include with coworkers were noted, but there is no indication they devolved from being verbal in nature to being physical.  Finally, he had difficulty adapting to stressful circumstances.  This included working, ultimately having a male therapist, and new situations such as meeting new doctors, undergoing a minor procedure, and attending a wedding.  He indeed stopped working and requested a female therapist.  New situations, which are unavoidable, caused a physical reaction.  In addition to the aforementioned symptoms, the Veteran experienced difficulty sleeping, difficulty with his libido, some diminished interest, impulsiveness, some difficulty with attention and concentration, ruminations, trouble taking orders, nervousness, tension, some restricted range of affect, and hypervigilant eye contact.  He startled easily, typically avoided going out to socialize, and drank heavily.

Since it is the effect of the Veteran's symptoms rather than the symptoms themselves that matters, the aforementioned is not determinative.  What is determinative, then, is that the Veteran did not experience occupational and social impairment with deficiencies in most areas as a result of his symptoms.  Quite substantial deficiencies in most areas is required, as this is what would be caused by the symptoms listed.  Quite substantial deficiencies with respect to mood are conceded based on the aforementioned.  The Veteran indeed generally was depressed, anxious, or nervous.  However, he did not have quite substantial deficiencies in any other area.  His judgment was at worst only somewhat deficient on a regular basis.  It indeed always was fair, with the singular exception that it was poor when he worried his family by abruptly leaving for Florida.  The Veteran's thinking never was quite substantially deficient.  It was unremarkable in being linear, logical, organized, and goal-directed.  This allowed the Veteran to comprehend normally and respond coherently.  He was not attending school.  He worked full-time until early 2009.  He noted that his performance was lacking, but he was not fired.  Instead, he voluntarily retired.  There further is no indication that he was demoted, whether forcibly or voluntarily, because he could not complete job tasks successfully.  All of this conveys that his deficiencies on the job were not substantial.  Finally, the Veteran did not have quite substantial deficiencies with respect to family relations.  He had no children.  It is reiterated that he lived alone.  It further is reiterated that he was close with his mother and brother.  He communicated with them weekly over the telephone.  He also saw his brother with at least some regularity, as he socialized primarily with him and they did landscaping work together at least for a time.

Taking the Veteran's symptoms as a whole, one GAF score of 55 and several GAF scores of 60 were assigned.  These scores signify that he consistently had moderate symptoms and that their effect was moderate impairment in occupational and social functioning.  They do not signify that he had severe symptoms causing severe impairment in occupational and social functioning.  As such, they convey symptoms productive of occupational and social impairment of lesser severity than that with deficiencies in most areas.  The opinion that the Veteran's symptoms were mild to moderate and that they had a moderate impact on occupational functioning as well as mild to moderate impact on social functioning conveys the same.  So does the reference to significant interference with occupational and social activities.  Though not determinative, it is significant that the GAF scores, opinion, and reference all are in agreement with the determination that the effect of the Veteran's symptoms was not deficiencies in most areas.

Consideration has been given to reasonable doubt.  However, it does not apply because the determination made by the Board is based on the preponderance of the evidence.  Consideration also has been given to whether a staged evaluation within the period prior to April 1, 2010, is warranted.  It follows that such an evaluation is not warranted since the determination applies to this entire period.  In sum, a rating in excess of 50 percent for PTSD for the period prior to April 1, 2010, is denied.

B.  Extraschedular

The alternative to assigning an evaluation schedularly is to assign one on an extraschedular basis.  38 C.F.R. § 3.321(b); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).  There are three steps to be taken regarding extraschedular evaluations.  Thun v. Peake, 22 Vet. App. 111 (2008).  A determination of whether the evidence presents such an exceptional disability picture that the applicable schedular evaluation criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made.  If these criteria are inadequate, it second must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation.

Here, neither the Veteran nor his representative specifically has argued for an extraschedular evaluation for his PTSD prior to April 1, 2010.  The Board finds no indication that his PTSD cannot be contemplated adequately by the applicable schedular evaluation criteria discussed above.  The Veteran's symptoms were accounted for by the criteria and associated statutes, regulations, and caselaw to include Mauerhan.  Evaluation was based on these sources.  Higher evaluations exist pursuant to them.  As explained above, however, an evaluation of 50 percent accurately describes the severity of the Veteran's PTSD during the aforementioned period.  The effect his PTSD symptoms had on him is encompassed by the aforementioned evaluation, in other words.

The Board next finds that there is no exceptional PTSD picture since the applicable schedular rating criteria are adequate.  Discussion of whether there are related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary.  Yet it is of note that there is no indication that the Veteran ever has been hospitalized due to his PTSD.  It is reiterated that there was some interference, but not substantial or marked interference, with his employment due to his PTSD.  In sum, referral for consideration of the assignment of an extraschedular evaluation in excess of 50 percent for the period prior to April 1, 2010, is not warranted.

III.  TDIU

Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15.  A substantially gainful occupation is an occupation at which a livelihood is earned.  VA Adjudication Procedure Manual, Part IV.ii.2.F.24.d.  It thus is "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days" actually worked.  Faust v. West, 13 Vet. App. 342 (2000).  It does not encompass positions of marginal employment where annual income does not exceed the poverty threshold for one person or where annual income exceeds this threshold because the employment is in a protected environment such as a family business or sheltered workshop.  38 C.F.R. § 4.16(a).  In determining whether a claimant is unable to engage in a substantially gainful occupation., consideration may be given to level of education, special training, and previous work experience but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

A TDIU may be granted on a schedular or extraschedular basis.  It is granted schedularly when a claimant is unable to secure or follow a substantially gainful occupation due to a service-connected disability or service-connected disabilities evaluated at less than 100 percent.  38 C.F.R. § 4.16(a).  If the claimant has more than one service-connected disability, one must be evaluated at 40 percent or more with a combined evaluation for all of 70 percent or more.  Disabilities resulting from common etiology or a single accident and disabilities affecting a single body system will be considered as one disability with respect to the 40 percent evaluation requirement.  The combined evaluation is derived not by simply adding together the evaluations for each disability but by use of the combined ratings table.  38 C.F.R. § 4.25.  A TDIU may be granted extraschedularly even where the claimant does not meet the percentage evaluation requirements if he is unemployable due to a service-connected disability or service-connected disabilities evaluated at less than 100 percent.  38 C.F.R. § 4.16(b).  Referral to the Director of the C & P Service is required because VA, to include the Board, cannot assign an extraschedular TDIU in the first instance.  Id.; Bagwell, 9 Vet. App. at 337; Floyd, 9 Vet. App. at 88; Shipwash, 8 Vet. App. at 218.

The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive, like above.  Gabrielson, 7 Vet. App. at 36, Masors, 2 Vet. App. at 18; Wilson, 2 Vet. App. at 614; Hatlestad, 1 Vet. App. at 164; Gilbert, 1 Vet. App. at 49.  Both medical and lay evidence once again may be discounted in light of inherent characteristics and its relationship to other evidence.  Madden, 125 F.3d at 1477.  Also similar to above, the benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.  He thus prevails if the evidence supports a TDIU or is in relative equipoise but does not prevail when it is against a TDIU.  Finally like above, only the most relevant evidence need be discussed even though all the evidence must be and thus has been reviewed.  Gonzales, 218 F.3d at 1378.

At the outset, the Board notes that once again none of the factors for assessing a medical opinion are significant with respect to the opinions rendered at the VA medical examinations.  Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 120; Prejean, 13 Vet. App. at 444; Black, 10 Vet. App. at 297; Ardison, 6 Vet. App. at 405; Sklar, 5 Vet. App. at 140; Reonal, 5 Vet. App. at 458; Guerrieri, 4 Vet. App. at 467.  The Board also notes that the Veteran and his brother once again are competent as well as credible, since none of the factors in that regard are significant, to report his symptoms and their effects.  Pond, 12 Vet. App. at 341; Madden, 125 F.3d at 1477; Macarubbo, 10 Vet. App. at 388; Caluza, 7 Vet. App. at 498; Layno, 6. Vet. App. at 465; Cartright, 2 Vet. App. at 24.  Some minor discrepancies are evident in the Veteran's reports, but they as well as those of his brother by and large are truthful.

That the Veteran is service-connected for PTSD, bilateral hearing loss, tinnitus, and a scar underneath his right eye is further noted.  His 50 percent evaluation for his PTSD prior to April 1, 2010, was continued herein.  It is reiterated that the Board's previous decision granted him a 70 percent evaluation for his PTSD effective as of this date.  The Veteran's bilateral hearing loss is evaluated as noncompensable, while his tinnitus has a 10 percent evaluation and his scar underneath his right eye has a 30 percent evaluation.  Since they both arose from the common etiology of noise exposure and both affect the nervous system, the Veteran's bilateral hearing loss and tinnitus are considered as one.  Yet their evaluation is only 10 percent.  His PTSD, however, was evaluated at higher than 40 percent prior to April 1, 2010, and has been evaluated at higher than 40 percent beginning on that date.  His combined evaluation was 70 (rounded from 69) percent prior to April 1, 2010, and 80 (rounded from 81) percent beginning on that date.  A TDIU thus may be awarded on a schedular basis prior to April 1, 2010, and beginning on that date.  It follows that the relevant inquiry is whether the Veteran's PTSD, bilateral hearing loss, tinnitus, and scar underneath his right eye have been of sufficient severity to render him unable to secure or follow a substantially gainful occupation.

The Veteran reported that he had recently retired from his position in the shipping department of a steel mill due to stress and hearing problems in his February 2009 claim, as set forth above.  Also as set forth above, he indicated that this full-time position for eight years at the March 2009 VA psychiatric examination.  He further indicated that he retired because he was concerned that his medication made him drowsy and therefore put himself and others at risk.  Mention also was made of him having been irritable at times on the job, with the result being arguments with coworkers, as well as of him feeling overwhelmed by new or unexpected situations and taking longer to complete tasks because of the need to double and triple check his work.  A GAF score of 60 was assigned.  It was opined that the Veteran's symptoms moderately impacted his occupational functioning.  Specifically, they were determined to reduce his efficiency and productivity.

Upon VA audiological examination in March 2009, the Veteran complained of trouble with speech in background noise.  His puretone threshold was 41 (rounded from 41.25) decibels in each ear, and his speech recognition score for each ear was 80 percent.  It was opined that his bilateral hearing loss and tinnitus symptoms caused significant effects, namely hearing difficulty, on his occupational functioning.  A May 2009 addendum clarified that he would have great difficulty hearing in a noisy environment, over distances, on the phone, and during quiet one on one conversations without eye contact.  Hearing aids were identified as assisting at least somewhat in this regard.

The Veteran noted that his PTSD and hearing loss caused him to be unemployable in an April 2009 statement.  He additionally noted that they started affecting his work in 2005 and that he left his position as a loader for a steel mill due to them.  Finally, he noted that he had not looked for work since and that he has one year of college education.  Also in an April 2009 statement, the Veteran's supervisor at the steel mill indicated that the Veteran retired due to medical reasons.  Nerves specifically was referenced.  His dates of employment were listed as May 2000 to April 2009, with his last day of work in February 2009.

That he quit work because he just did not want to deal with the stress of it anymore was reported by the Veteran at the May 2009 VA general medical examination, as set forth above.  Tingling but no pain also was reported by him with respect to his scar underneath his right eye.  Upon assessment, it was small at 1/2 inch by 1/16 inch, difficult to see, and superficial.  The opinion was that it does not impact the Veteran's employability.

In a November 2009 statement, the Veteran noted that his PTSD alone caused him to be unemployable.  He also noted that his PTSD started affecting his work as a loader in a steel mill in 2009, that he had not looked for work since he left this position, and that he has a high school education.  In a January 2010 statement, the Veteran recounted having had several jobs during his life, with none lasting more than 12 years.  His supervisor at the steel mill indicated in January 2010 that he had retired from his position as a laborer/machine operator with no reason provided.  His beginning and ending dates of employment were reiterated, and it was indicated that his last day of work was in January 2009.

A late 2009 VA treatment record contains the Veteran's report that he was working two to three days per week landscaping with his brother, as set forth above.  April 2010 VA treatment records contain his report that he decided to quit working for his brother's landscaping company on his first day.  They also convey that he stopped therapy to reduce his alcohol consumption.  A June 2010 VA treatment record conveys that he stopped taking his medications.

The Veteran complained of continued symptoms, with increased loss of interest and neglect of personal hygiene, at a March 2011 VA psychiatric examination.  He reported having engaged in seven or eight physical fights and not feeling close to anyone except his brother, whom he does not spend a lot of time with and with whom he does not discuss personal matters.  He also reported that he quit work because he felt he could not handle the stress of the job anymore and because the job was dangerous.  The Veteran noted that he would get backed up as well as would get edgy and lose his temper, which resulted in confrontations with quite a few people but did not result in him being written up.  He denied missing any work due to his symptoms.  Indeed, he stated that he forced himself to go.  A GAF score of 50 was assigned.  That he appeared to have had mild problems with efficiency and productivity at work was mentioned.

In mid-2011 VA treatment records, the Veteran reported working two days per week cleaning up parts.  He further reported that he continued to work in a part-time position in parks.

The Veteran testified at the November 2011 videoconference hearing that he quit his job because it was too stressful.  His brother testified that he does not function well.

Upon VA audiological examination in March 2012, the Veteran complained of continued difficulty understanding speech in background noise.  His puretone threshold was 40 decibels in the right ear and 45 decibels in the left ear.  His speech recognition score for each ear was 84 percent.  It was opined that his bilateral hearing loss and tinnitus symptoms did not render him unable to secure and maintain substantially gainful sedentary or physical employment.  Noted in this regard was that his speech discrimination scores were good and that he was able to work for many years.

The Veteran complained of continued symptoms, though with increased guilt and decreased difficulty with personal hygiene, at a March 2012 VA psychiatric examination.  He further complained of the added symptom of feeling worthless.  He reported that he had rarely missed work, had no particular difficulty with any particular task, did not need to take a break and did not suffer decreased effectiveness upon feeling upset on the job, and that his relationships with his coworkers and bosses were good overall.  This was despite losing his temper with coworkers, for which he was reprimanded one to two times per month.  The Veteran also reported that the job he held for the longest period, 20 years, was at a liquor store.  A GAF score of 60 was assigned.  It was opined that the Veteran's symptoms have a mild to moderate impact on his occupational functioning and thus do not render him unable to secure and maintain substantially gainful employment.  Noted in this regard was that there was no indication that they had ever significantly impacted his occupational functioning when he was working.

It was opined at a March 2012 VA general medical examination that the Veteran is able to secure and maintain gainful sedentary or physical employment notwithstanding his PTSD, bilateral hearing loss, tinnitus, and his scar underneath his right eye.  Noted in this regard was that he has not been evaluated as totally occupationally impaired as a result of his PTSD.  Further noted was that he quit his last job due to stress rather than due to any of the aforementioned.

In an April 2013 statement, the Veteran indicated that he quit working because he could not take the pressure of the job to include interacting with people.  He complained of continued symptoms, with an increase in his loss of interest as well as his suicidal thoughts and anxiety attacks to daily.  He further complained of memory loss and inappropriate behavior when he drinks too much as well as feeling hopeless.  The Veteran's treatment provider indicated in a May 2013 letter that his PTSD symptoms included having to force himself to bathe.  They were noted to cause difficulty retaining information and following instructions as well as feeling out of control.

The Board finds that it is unclear, based on the above, whether or not the Veteran engaged in substantially gainful employment since he filed his claim in February 2009.  He retired from his full-time position as a loader or laborer/machine operator in a steel mill around the time of this filing.  Thereafter, he worked as a landscaper, cleaning up parts, and in parks.  No information exists as to how much each of these positions paid.  It is inferred that none paid well, given the nature of the work and that each position was part-time.  However, one or more may have lasted long enough that it constituted substantially gainful employment.  It may have lasted long enough for the Veteran's annual income exceeded the poverty threshold for one person, in other words.  This threshold, as established by the United States Department of Commerce, Bureau of the Census, for those both under and over 65 years, indeed has been only between $10,000 and $12,000 since 2009.  One of more of the Veteran's part-time positions not lasting long enough for his annual income to exceed the poverty threshold for one person also is possible.  To this extent, these positions would constitute marginal employment.

Here, it does not matter whether or not the Veteran's part-time positions were substantially gainful employment or marginal employment.  This is because the Board next finds that his PTSD, bilateral hearing loss, tinnitus, and the scar underneath his right eye are not of sufficient severity to render him unable to secure or follow a substantially gainful occupation.  His lack of a substantially gainful job, to the extent such a lack exists, is not synonymous with his unemployability.  The scar underneath the Veteran's right eye has no impact whatsoever on his ability to work.  His PTSD, bilateral hearing loss, and tinnitus concededly interfere with his ability to work.  His PTSD symptoms specifically result in him having problems interacting with coworkers, for which he both admits and denies has gotten him into trouble in the past, and problems concentrating and remembering, which leads to difficulty following instructions and needing longer to complete assignments.  They also result in difficulty with new or unexpected situations.  His bilateral hearing loss and tinnitus symptoms result in him having problems hearing others.  Yet, these effects of the Veteran's symptoms did not prevent him from working altogether.  He quit rather than was fired from his last full-time job due to stress.  It thus was noted that he did not quit due to his PTSD.  While he did not elaborate on what he means by stress, that he may mean stress caused by his PTSD symptoms is acknowledged.  In any event, he did not have difficulty with any particular task on the job.  There is no indication otherwise that the Veteran's work was unsatisfactory.

The effects of the Veteran's PTSD, bilateral hearing loss, and tinnitus symptoms further have not prevented him from working altogether since he quit his last full-time job.  Due to his lack of higher education or at least his failure to complete higher education and his previous employment history composed of manual positions, the Veteran is best suited for physical labor.  Of import is that none of the aforementioned disabilities are physical in nature.  There further is unanimous agreement among the medical opinions that the aforementioned effects of the Veteran's symptoms are not severe enough to render him unable to perform employment to include physical employment.  This is true notwithstanding that his PTSD, his most severe disability, increased in severity.  He has not looked for a full-time job since he quit as a steel mill loader or laborer/machine operator.  However, it is difficult to imagine that there are not at least some physical positions that are simple, follow a routine, and involve little to no interaction with others.  The effects of his PTSD, bilateral hearing loss, and tinnitus symptoms would not pose significant problems with such a position.

Consideration has been given to reasonable doubt.  However, it does not apply because the determination made by the Board is based on the preponderance of the evidence.  A TDIU, in sum, is denied.


ORDER

An evaluation in excess of 50 percent for PTSD for the period prior to April 1, 2010, is denied.

A TDIU is denied.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs