Citation Nr: 1728486 Decision Date: 07/20/17 Archive Date: 07/27/17 DOCKET NO. 13-17 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic disorder (PTSD) 2. Entitlement to a total rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. The Veteran appeared at a videoconference hearing in December 2015. The Board remanded the claim in February 2016. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran's PTSD has resulted in occupational and social impairment with reduced reliability and productivity. 2. The Veteran's service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent rating for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, DC 9411 (2016). 2. The criteria for assignment of TDIU are not met. 38 U.S.C.A. §§1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board is satisfied that there has been substantial compliance with the February 2016 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). PTSD Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD has been rated as 50 percent disabling under DC 9411. A 50 percent rating is assigned when there is 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 percent rating is assigned when the psychiatric condition produces 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. A maximum 100 percent rating is assigned when there is total occupational or 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. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the evidence of record, on September 2010 VA examination, the Veteran reported that his depression was better with medication. Generally, he felt depressed most of the day for weeks at a time. He had trouble with concentration, decreased appetite and sleep, feelings of guilt and worthlessness, psychomotor retardation, fatigue, anhedonia, and suicidal ideation. He denied any suicidal planning or intent. The Veteran reported an intact marriage of 44 years, with three children. His relationship with his children was strained and he was unable to see his grandchildren. He would attend church and had some relationships through that contact, but did not have other social relationships. He preferred to be alone and spent most of his time in the garage or yard. He avoided places with crowds. On mental status examination, the Veteran was casually dressed. His psychomotor activity was lethargic and his speech was slow. He was cooperative but his affect was constricted and blunted. He was anxious and depressed and easily distracted. He was oriented in all three spheres. He had racing thoughts and ruminations. There were no delusions. His judgment was within normal limits. There were no hallucinations and his behavior was appropriate. He described panic attacks occurring every 2 months. His remote memory was normal, but his immediate memory was moderately impaired. He had guarded behavior. It was noted that the Veteran worked for the post office until he retired in 2005 due to financial problems that contributed to increased depression and anxiety. The examiner reviewed the treatment records, noting that in July 2006 and March 2007, the Veteran was diagnosed with a dysthymic disorder and PTSD, and assigned a GAF score of 45. The examiner concluded that the Veteran's PTSD resulted in reduced reliability and productivity, contemplated by the 50 percent rating criteria. In October 2011, the Veteran reported that he did have suicidal thoughts. He reported that he was only able to sustain a previous job, working in maintenance, because of an accommodating boss. He reported that he had a strained relationship with his children due to his anger. VA treatment records reflect that in August 2012, the Veteran reported having short term memory loss, such as forgetting groceries, and also reported an instance when he thought he had seen spiders on the wall that were not there. He was experiencing restless sleep. In January 2013, the Veteran reported he had been doing a little better with regard to his mood and PTSD symptoms with a higher dose of medication. He continued to experience intrusive thoughts and nightmares 2-3 times per week, but they did not bother him that much. He was noted to be alert, attentive, and fully-oriented. His speech was not pressured and coherent. His mood was neutral. There were no active hallucinations. He denied active suicidal or homicidal ideations. His insight and judgment were good. In July 2013, the Veteran reported that he was experiencing increased irritability despite taking his medication. He was experiencing nightmares. In April 2015 and July 2015, the Veteran was seen for medication follow-up, when his dosage was increased due to worsening moods. He had noticed some improvement, including being able to drive cars for a car auction, being able to participate in physical therapy, and helping his wife around the home. He denied any hallucinations or suicidal ideation. Mental status examination was within normal limits but for a finding of fair insight and judgment. At his December 2015 hearing before the Board, the Veteran stated that his nightmares and ability to concentrate were worsening. He reported that he worked one day per week at a car auction, but did not socialize. He would see his VA psychiatrist every six months. On September 2016 VA examination, the Veteran reported that he currently worked for a car auction one day per week driving cars to and from the place where the auction was being held, and helped take care of his wife the rest of the time. His current symptoms included suicidal ideation, depression, and a general sense of feeling "down and out." He had panic attacks that occurred weekly or less often. He reported fear when thinking about Vietnam. He had suicidal ideation and difficulty in establishing and maintaining effective work and social relationships. Mental status examination showed that he was casually dressed. He made good eye contact and was cooperative and engaged in the examination. His mood was appropriate and his affect was euthymic. He was alert in all spheres. His speech and language were unremarkable. His thought process was logical and linear. His insight and judgment were good. He had adequate attention and concentration. His memory appeared intact. The examiner opined that the functional impairments that the Veteran was experiencing due to his PTSD were not severe enough to limit his capacity to work and manage serious responsibilities, such as providing care for a spouse with a serious illness and maintaining employment, if only for a few hours per week. He may have been too functionally impaired to be successful at the job from which he retired, but he has been able to maintain employment that adapted to his needs. From the above evidence, the Board finds that the Veteran's PTSD does not meet the criteria for a higher 70 percent rating. For one, deficiencies in most areas has not been shown. The Veteran's judgment and thinking have remained intact on examination throughout the appeal period. The evidence reflects that he is able to work for a car auction one day per week, he helps to take care of his wife, and he is able to attend to activities of his daily life. Repeat mental status examinations did not portray symptoms of a thought or judgment impairment that was more than moderate in degree, as contemplated by the 50 percent rating. While he retired from his job prior to the appeal period, and has stated that his PTSD and depression contributed to his inability to continue in that employment, he has been shown to have the capacity to retain other employment. The evidence also demonstrates an intact long-term marriage and some relationships through attending church. While the Veteran has also been shown to isolate himself and to have a strained relationship with his children, again, these symptoms are contemplated by the 50 percent rating that takes into account social impairment and difficulty establishing and maintaining effective relationships. The evidence also does not show other symptoms contemplated by the 70 percent rating, such as obsessional rituals, illogical or obscure speech, or near-continuous panic or depression that affects the ability to function independently. Rather, the Veteran is shown to be able to function independently in that he helps to care for his spouse and the evidence does not show that he is greatly impaired in this aspect of his daily life. While the Veteran has reported suicidal thoughts and ideation, he has also reported that he would not act on these thoughts due to his relationship with this wife. Significantly, the Veteran's mental status examination throughout the appeal period has not demonstrated more severe symptoms, such as impaired impulse control leading to unprovoked irritability with periods of violence or neglect of personal hygiene or appearance. Aside from an instance where he believed that he saw spiders on the wall, the Veteran has not been assessed to suffer from hallucinations or delusions. Thus, while the Veteran does suffer from disabling symptoms related to his PTSD, to include nightmares, intrusive thoughts and memories of his war experiences, a tendency to isolate, and irritability/anger, these symptoms are accounted for by his current rating. Suicidal ideation is listed as one of the symptoms contemplated by the 70 percent rating criteria, but "the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level." Bankhead v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 722, 2017 WL 2200746, at 9 (Vet. App. May 19, 2017); Mauerhan, 16 Vet. App. at 440-41. Rather, the overall evidence does not show that the symptoms experienced by the Veteran impact his social and occupational functioning to the extent that demonstrates deficiencies in most areas. Accordingly, the claim for a higher rating must be denied. The Board notes neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, from March 5, 2010, to May 20, 2013, the Veteran did not meet the schedular criteria for consideration of a TDIU, but did meet such criteria since May 20, 2013. Prior to May 20, 2013, the Veteran was in receipt of a 50 percent rating for PTSD and a 10 percent rating for residuals of prostate cancer, aside from a period of time when he was in receipt of a 100 percent rating for active prostate cancer. Since May 20, 2013, he has been awarded an increased 40 percent rating for residuals of prostate cancer, as well as ratings for coronary artery disease, lung cancer, and erectile dysfunction. The Board notes, however, that the Veteran has not contended that his lung cancer, coronary artery disease, or prostate cancer prevent substantially gainful employment, and the treatment records do not otherwise demonstrate such a finding. Significantly, a February 216 Disability Benefits Questionnaire (DBQ) reflects the conclusion that while the Veteran's coronary artery disease impacts his ability to work, he could do sedentary work as tolerated, but should avoid heavy exertion, lifting, pushing, or pulling or stressful situations. Similarly, an August 2016 DBQ found that the Veteran's lung cancer affected his employment in that he experienced shortness of breath and found it difficult to breathe with bending. A March 2014 VA examination found that the Veteran's residuals of prostate cancer, voiding dysfunction, did not impact his employment. From the above evidence, the Board concludes that the Veteran's coronary artery disease, lung cancer, and prostate cancer do not prevent the Veteran from sedentary employment. In that regard, the Veteran has reported that he works one day per week for a car auction driving cars to and from the auction site. The Board notes that the Veteran has not returned VA Form 21-8940, sent to him in September 2016, requesting information pertaining to his current employment and previous employment. Thus, further analysis as it relates to the Veteran's education and employment history cannot be accomplished. Moreover, it is unclear whether the Veteran is able to work more than one day per week for his current employer based upon the impact of his service-connected disabilities. In that regard, in September 2016, a VA examiner reviewed the claims file and conducted a psychological evaluation of the Veteran, and determined that the Veteran's PTSD was not severe enough to limit his capacity to work and manage serious responsibilities, as was evidenced by his employment working at the car auction and providing care for his spouse with a serious illness. The examiner took into consideration that his employment was only once per week, however, given the totality of the Veteran's social and occupational functioning, a severe functional impairment due to his PTSD was not found. Based upon the above VA opinion, the Board finds that the criteria for a TDIU, to include referral for consideration of a TDIU on an extraschedular basis prior to May 20, 2013, have not been met. The Veteran has not submitted medical evidence to support his claim that his service-connected disabilities prevent substantially gainful employment, nor has he provided sufficient information as to his current and previous employment or compensation of such to substantiate his claim. While the Veteran does suffer from impairments related to his service-connected disabilities these symptoms are contemplated by the disability evaluations assigned. ORDER A rating in excess of 50 percent for PTSD is denied. A TDIU is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs