Citation Nr: 1721966 Decision Date: 06/14/17 Archive Date: 06/23/17 DOCKET NO. 15-16 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Shannon K. Holstein, Attorney ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1955 to June 1963. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2015 and June 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In the March 2015 rating decision, the RO granted entitlement to service connection for PTSD and assigned an evaluation of 30 percent, effective as of February 13, 2013. In June 2015, the RO continued the evaluation of the Veteran's bilateral hearing loss at 50 percent and denied entitlement to TDIU benefits. The Board first considered the issues in January 2016, remanding the case for additional evidentiary development and issuance of a Statement of the Case (SOC). The Board remanded these issues again in July 2016 for additional evidentiary development, and accepted the withdrawal of the issue of entitlement to an increased evaluation for bilateral hearing loss. In the January 2017 brief submitted by the Veteran's representative, it is indicated that a 70 percent evaluation would represent a grant of full benefits sought on appeal. In that brief, the Veteran additionally waived his right to have new evidence submitted considered by the RO, and asked that the case to be expedited to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's PTSD has been manifested during the claim period by 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); and an inability to establish and maintain effective relationships. 2. The Veteran's service-connected disabilities prevent him from obtaining and maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for an acquired psychiatric disorder have been met. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.129, 4.130, Diagnostic Code 9435 (2016). 2. The criteria for the assignment of TDIU due to service-connected disabilities have been met. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Notice As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Increased Rating The Veteran contends that his acquired psychiatric disorder merits a 70 percent disability rating, which, as asserted by his representative, would be a full grant of benefits sought on appeal. After a thorough review of the evidence, the Board finds that a 70 percent evaluation is warranted for his condition. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2016). The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). The Veteran currently receives a 30 percent rating for his PTSD, under Diagnostic Code 9411, 38 C.F.R. § 4.130. A 30 percent rating represents occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. A 70 rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In a February 2015 VA examination, the Veteran was found to be only mildly impaired by his PTSD. The Veteran reported hallucinations, feelings of being followed, and endorsed frequent distressing thoughts of military trauma and nightmares. He reported a strong physical reaction to reminders of the trauma, including a racing heart, sweating, and shaking. He avoided conversations, thoughts, crowds, situations, and media that reminded him of the trauma. He reported negative beliefs that no one could be trusted, hypervigilance, exaggerated startle response, and irritability. He denied suicidal and homicidal ideations. The examiner noted that the disturbances caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. In sum, however, the examiner assessed the condition as mild. In May 2015, the Veteran's wife submitted a statement detailing her own observations of her husband's condition. She reported that her husband's inability to properly communicate with customers at work angered him, and he regularly became defensive when confronted with his mistakes. He was increasingly distressed by his own mistakes, and would struggle as a result. The Veteran would be irritable, angry, and mentally exhausted at home, and would lose sleep. He retreated from the family as a result. In May 2016, a private psychologist assessed the Veteran's PTSD, and determined that it was more severe than estimated by the VA psychologist. The private psychologist noted the long history of mental health treatment sought by the Veteran, which is supported by ongoing clinical documentation associated with the file, and stated that the Veteran continues to experience flashbacks to his stressor - the shooting of a child in Korea. He noted documentation of the worsening of the Veteran's symptoms, which included increases in his anger, hypervigilance, and nightmares. The Veteran filed his first claim for PTSD just days before suffering a stroke that affected his speech and portions of his brain. The Veteran was first assessed by the VA examiner after that stroke. The psychologist determined that the Veteran's PTSD caused occupational and social impairment in most areas, and stated that the VA examiner minimized the symptoms reported by the Veteran in his analysis. The private psychologist, based on his analysis, established 19 of 20 of the symptoms of PTSD, stating that the Veteran suffered from these even before his stroke, thus ruling out the possibility that these symptoms were a product of his stroke. After a thorough review of the Veteran's medical history, including lay evidence of record, as well as application of each of the symptoms characteristic of PTSD, the psychologist assessed the Veteran with severe PTSD, just short of a total impairment for rating purposes. In May 2016, the Veteran's stepdaughter spoke to her own observations of the Veteran's PTSD through her childhood and into adulthood. She described her stepfather's withdrawal from the family, ongoing hypervigilance, and anger. She also described an instance in which he was unable to be touched by her without provoking an extreme anger response. In an October 2016 VA examination, the Veteran was again assessed with mild impairment due to his PTSD. At the outset, the examiner noted that the Veteran was alert, and almost fully oriented. The Veteran endorsed flashbacks to his stressor a few years ago, and psychological distress when something reminded him of the military. He estimated these memories with distress at about once per month. The Veteran stated that he tried to avoid them by watching television or reading. He also spoke to avoiding unexpected noises due to his exaggerated startle response, and that his wife had become adept at approaching him without startling him. The Veteran denied having negative feelings about himself or the world after his experiences in Korea. The Veteran continued to have persistent, distorted cognitions in which he blamed himself for the death of the child in Korea, and it was a persistent negative emotional state. The Veteran also had markedly diminished interest in participation in activities. He had irritable behavior, and avoided crowded environments. Hypervigilance was reportedly mild, and he no longer complained of sleep problems. The VA examiner distinguished his analysis from that of the private psychologist in that the private psychologist relied on a checklist of PTSD symptoms. The examiner attributed the Veteran's hallucinations to a cause other than his PTSD. The examiner expressed a belief that the Veteran was endorsing symptoms from the checklist that he did not actually experience, and thus invalidated the Veteran's responses to the checklist symptoms in his analysis. In January 2017, the Veteran's wife submitted another statement regarding his PTSD. She stated that her husband would spend all day staring into space if she let him, and noted that it had been several years since her husband had any friends. He seldom attempted to speak to anyone anymore. His wife also stated that her husband's dementia and Parkinson's disease have caused him to decline even further. Based upon her observations during the October 2016 VA examination, she believed that he only answered the questions in the manner he thought the person asking wanted to hear. She did not believe he was in any condition to answer questions properly at the time of the examination due to his deteriorating mental health. In a Disability Benefits Questionnaire (DBQ) submitted by a private psychologist in January 2017, the Veteran is once again assessed with severe symptoms of PTSD. The psychologist noted that the Veteran had most of the symptoms characteristic of PTSD, and wrote an extensive response to the VA examiner's October 2016 opinion. The psychologist noted many inconsistencies in the VA examiner's reasoning. First, the examiner failed to establish the Veteran's PTSD mood symptoms that are noted as chronic major depressive disorder by at least one treating VA psychiatrist, and existed prior to the Veteran's stroke. Second, the psychologist noted that the Veteran was not entirely oriented for the interview, and thus the Veteran instead relied upon the examiner's language to respond to questions. The psychologist believed that the Veteran's descriptions of his own health were unreliable at the time, and noted that the examiner explicitly disregarded corroborating information from the Veteran's wife. Third, the psychologist objected to the examiner's dismissal of hallucinations as a symptom of PTSD as the American Psychiatric Association concluded that the hallucinations are part of the PTSD symptomatology. Fourth, in attributing symptoms as "primarily" related to hearing loss, the examiner failed to establish those symptoms as related to PTSD at all. Fifth, the examiner overlooked the Veteran's feelings of detachment demonstrated by his inability to touch his wife and the negative state of their relationship, as well as the social isolation described by his stepdaughter. In sum, the Veteran's symptomatology related to PTSD remained severe, consisted with the psychologist's previous assessment. Based on the above, the Board finds that a disability rating of 70 percent is warranted. The Board finds that the VA examiners failed to adequately consider lay evidence of record in attempting to corroborate the symptoms reported by the Veteran. As such, the examinations are afforded a lower probative weight. The record contains a significant amount of medical and lay evidence to substantiate the severity of the Veteran's PTSD symptoms since his claim date. Lay testimony may not diagnose a condition, but it is certainly credible and probative to the nature and severity of the symptoms of an observable disorder. While there are differing opinions among the VA and private examination reports, the evidence is, at the very least, in relative equipoise when considering all of the credible evidence of record. As previously noted, a 70 percent rating envisions occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to symptoms such as suicidal ideation, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, and impaired impulse control. 38 C.F.R. § 4.130, Diagnostic Code 9411. In the present case, examining physicians have determined that the Veteran's occupational outlook is not promising and that he suffers from periods of spacing out and aggression when approached by others. When the evidence stands in relative equipoise, the benefit of the doubt must be afforded to the Veteran. As such, a 70 percent evaluation is warranted for his PTSD. III. Entitlement to TDIU The Veteran contends that he is unable to work due to the symptomatology associated with his service-connected disabilities. After a thorough review of the evidence, the Board concludes the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). The Veteran is presently service connected for PTSD (now rated as 70 percent disabling), bilateral hearing loss (50 percent), and tinnitus (10 percent). The Veteran's combined evaluation since the date of the TDIU claim is now 90 percent. As one disability is rated over 60 percent with a combined total over 70 percent, he is initially eligible for schedular TDIU consideration. In light of the competent medical evidence and lay testimony of record, the Board concludes that the Veteran is entitled to an award of TDIU. At the outset, the Veteran's VA treatment records and employment records are consistent with the work history dates provided by him, and tend to corroborate the Veteran's assertion of his employment and education level. In this regard, the Board finds the Veteran's claimed unemployment to be credible. See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). A private psychologist and vocational specialist both submitted statements, and an addendum, regarding the Veteran's ability to maintain gainful employment. As supported by lay statements, the Veteran's hearing loss caused mistakes on the job, as well as negative interactions with customers that then aggravated his behavior at home. It is their opinion that the combination of hearing loss, tinnitus, and PTSD prevent him from following and securing a substantially gainful occupation. The Veteran had worked several skilled positions in the past that required communication and public interaction. The skills he acquired do not transfer to other occupations that require less communication or public contact. Moreover, any skills that he acquired were outdated. If he could work at all, it would be limited to unskilled work, however, according to the vocational specialist, he cannot meet the base minimum requirements of an unskilled position to sustain a competitive advantage. The VA examiners stated that the Veteran would be suitable for some types of employment, which did not require complex thinking and sustained concentration. Options offered by one examiner included gatekeeper, night watchman, and parking lot attendant. In January 2017, the vocational specialist submitted an addendum rebutting the examiner's opinion regarding work capacity. She stated that, while she agreed that his irritability interfered with a work environment, the Veteran's skills would preclude him from transferring to the types of positions suggested. Additionally, his acquired skills do not transfer to other less physically demanding work or less public contact without significant additional vocational training. His hearing loss alone would preclude him from professions requiring use of a telephone or interactions in a room with others speaking because he would not be able to understand the interactions. Therefore, the Veteran would be limited to the performance of unskilled work based on his disabilities, which he is unable to perform as he does not possess the very basic requirements to be competitive in that work environment. In evaluating medical opinions, the Board may place greater weight on one opinion over another depending on factors such as reasoning employed by the medical professionals, and whether or not and to what extend the review prior clinical records and other evidence. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Here, the Board places greater probative weight on the opinions of the vocational specialist. As someone experienced in vocational rehabilitation, this specialist is uniquely equipped to provide detailed information about work potential based upon a set of disabilities or impairments. She adequately explained why the Veteran could not reasonably engage in the limited types of work described by the VA examiner. Her assertions were supported by lay evidence from both the Veteran's wife and stepdaughter regarding the combined impact of his hearing impairments and PTSD on his ability to function. In sum, the credible, probative evidence of record tends to demonstrate an inability to maintain substantially gainful employment. As of the date of the TDIU claim, the Veteran was effectively prevented from obtaining and retaining gainful employment due to his service-connected disabilities. The Veteran's disability may not preclude him from unskilled jobs, but adapting the Veteran's work experience for such a position would, at the very least, require training that is not feasible due to his physical and emotional limitations, as well as limited skill set and education. With the benefit of the doubt resolved in favor of the Veteran, the Board finds that the Veteran is entitled to an award of TDIU. ORDER 1. Entitlement to an initial evaluation of 70 percent for post-traumatic stress disorder (PTSD) is granted. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs