Citation Nr: 1754929 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-33 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for a psychological disorder, claimed as post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1998 to February 2005. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions issued in June 2016 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and in October 2016 by the RO in Denver, Colorado. Jurisdiction of this appeal is now with the RO in Denver. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDINGS OF FACT 1. For the appeal period, the Veteran's acquired psychiatric disorder has been characterized by occupational and social impairment with deficiencies in most areas; however, total occupational and social impairment has not been shown. 2. After affording the Veteran the benefit of the doubt, the evidence indicates that the Veteran is unemployable due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 70 percent for an acquired psychiatric disorder, characterized as PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. VA provided relevant and adequate examinations in April 2015, October 2016, and February 2017. The examiners reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In a June 2015 rating decision, the Veteran was service connected for an acquired psychiatric disorder, characterized as PTSD, but he has since disagreed with the assigned 70 disability rating under 38 C.F.R. § 4.130, DC 9411 (2017) (addressing PTSD). In order to warrant the next-higher 100 percent rating, the evidence must show total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411 (2017). Based on the evidence of record, the Board determines that an evaluation in excess of 70 percent is not warranted. Specifically, the record indicates that although the Veteran has exhibited occupational and social impairment in most areas, his symptoms do not rise to the level of total occupational and social impairment. Indeed, the Veteran's psychological condition has been relatively stable during the appeal period. For example, throughout most of the appeal period, the Veteran maintained a neat appearance. His April 2015 C&P examiner noted that his clothes were clean, but "with an air of neglect." Further, during an October 2016 C&P exam, appropriate casual and neat dress were noted. Thus, the Veteran shows the ability to maintain minimal personal hygiene. Further, the Veteran spoke appropriately with clear thought content. His April 2015 examiner noted no impairment of concentration or executive functions, and that the Veteran was always oriented to person, time, place, and situation. The Veteran was also able to communicate by and comprehend spoken and written language. During a June 2009 mental status exam, he was determined to be oriented to person, time, and place. While the Veteran endorsed occasional marijuana use in his October 2016 C&P examination, he denied alcohol use and did not exhibit gross impairment in thought processes or communication throughout the appeal period. While the Veteran has exhibited impaired impulse control, he does not suffer from near-continuous panic or depression. During his April 2015 examination, the Veteran reported hopeless, helpless feelings, sadness, and concentration and focus problems. He also endorsed panic attacks more than once a week. During his examination, the examiner noted tearfulness and a sense of being overwhelmed by his circumstances. However, in his October 2016 examination, the Veteran mentioned not feeling depressed. Further, while his examiner noted that he was generally sad, crying on and off throughout the evaluation, this was mostly in connection with the Veteran's mother and daughter, rather than his experiences in service. The Veteran also smiled and laughed appropriately during his interview. The examiner noted that the Veteran's PTSD affects his ability to handle stress. However, the symptomology described above is adequately compensated by his current evaluation. Similarly, while the Veteran's October 2016 examination states that he may have difficulty establishing trust and effective working relationships due to PTSD, he does not experience total occupational impairment in this regard. Despite the finding of unemployability below, the Veteran likely maintains the capacity to engage in simple tasks in a loosely structured environment. Also, the Veteran has been found as recently as October 2016 to be able to manage his own financial affairs. While the Veteran exhibited chronic sleep impairment, such symptoms are already contemplated under his current disability rating. Sleep difficulties are noted in several documents of record. Specifically, in his June 2014 statement, the Veteran endorses sleep impairment due to involuntary movements during sleep. The Veteran's April 2015 C&P examiner noted chronic sleep impairment, and the Veteran said that he does not sleep much because of the impulse to see what is going on. Likewise, the Veteran's October 2016 examiner noted chronic sleep problems, and that the Veteran only slept two to four hours per night. These difficulties were highlighted in the Veteran's August 2017 hearing testimony. Sleep disturbances such as those described above are not uncommon with PTSD and do not constitute total impairment. The Veteran's memory was normal and intact throughout the appeal period. Specifically, although the Veteran's April 2015 examiner noted "mild memory loss," the Veteran denied memory problems in his April 2015 and October 2016 C&P examinations. There is no indication that he experienced the total memory loss for names of close relatives, his own occupation, or his own name. Likewise, the record does not reflect impairment of judgment, and his April 2015 C&P examiner noted normal judgment. The Veteran did not experience delusions or hallucinations during the appeal period, nor did he experience suicidal ideations. In the Board's view, the criteria for the next-higher 100 percent rating depict a level of impairment, when viewed as a whole, are more severe than the symptoms displayed by the Veteran. Indeed, many of these objective symptoms, to include gross impairment in thought processes or communication, persistent delusions or hallucinations, and memory loss for the names of close relatives, his own occupation, or his own name, have not been demonstrated. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as grossly inappropriate behavior and memory loss, to include social and occupational inadaptability. In this regard, it is clear that the Veteran's disorder impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 70 percent is warranted. Specifically, the Veteran has shown the capacity to maintain relationships with close relatives. According to his October 2016 examiner, the Veteran's mother unfortunately passed away in 2010. He describes her in the examination report and in his hearing testimony as his best friend. Moreover, the Veteran expresses a desire to have a relationship with his daughter, despite not having been ready to be a father when she was born. The Board concedes the Veteran's social and romantic isolation, mentioned in his 2016 C&P examination report as well as in his August 2017 hearing testimony. However, the Veteran is not totally socially impaired, and certainly not to the level that a 100 percent disability rating would be warranted. The Veteran has, in his October 2016 examination report and in August 2017 hearing testimony, expressed difficulty with finding and keeping work of any kind due to problems with social interaction and maintaining effective working relationships. However, due to the grant of a TDIU rating in this decision, the Veteran's current levels of compensation adequately address these symptoms. See Thun v. Peake, 22 Vet. App. 111 (2008). Because the Veteran's VA examinations did not contain GAF assessments, the Board was not able to consider the Veteran's Global Assessment of Functioning (GAF) score. However, given that the GAF is no longer considered in a Veteran's functional assessment, the Board finds that this is unlikely to affect the Veteran's rating. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his PTSD is worse than the rating he currently receives. 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 claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a 70 percent rating is warranted for the Veteran's PTSD. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). Here, as mentioned above, the Veteran's grant of TDIU in this decision adequately addresses the Veteran's occupational impairment. Based on evidence of record, the Board determines that an increased rating for the Veteran's PTSD is not warranted for the period on appeal. As such, the appeal is denied. Total Disability Based on Individual Unemployability The Veteran claims that the combined effect of his service connected disabilities prevents him from securing and following substantially gainful employment. Specifically, because of his service-connected disabilities, the Veteran cannot maintain working relationships, concentrate, or tolerate stress well enough to maintain more than marginal employment. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2017). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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 service-connected disabilities. 38 C.F.R. § 4.16(a) (2017). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19 (2017). See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b) (2017). In this case, the Veteran is service-connected for three conditions: post-traumatic stress disorder, rated at 70 percent, tinnitus, at 10 percent, and left ear hearing loss, at 0 percent disabling. His total disability rating is currently 70 percent. Therefore, the schedular requirements under 38 C.F.R. § 4.16(a) have been met. Affording the Veteran the benefit of the doubt, the Board concludes that TDIU is warranted based on the evidence of record, as it does not appear that the Veteran is able to secure or follow a substantially gainful occupation despite his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2017). The evidence of record documents serious symptoms that would make it difficult or impossible to secure or maintain any type of substantially gainful employment. Indeed, the Veteran's 70 percent rating for PTSD contemplates serious symptoms that result in occupational impairment. The record affirms that the Veteran suffers from severely depressed mood, decreased concentration, and difficulty establishing and maintaining work relationships. The Board finds that the Veteran's mental condition causes him difficulty in any type of employment. At his August 2017 hearing, the Veteran testified that he is held back from employment due to interpersonal conflicts. He was fired from his last place of employment because of a disagreement with his supervisors over his being promised a vacation day for his birthday. Further, the Veteran's October 2016 C&P examiner explained that the Veteran's sleep disturbances cause fatigue and concentration disturbances that may exacerbate his inability to maintain employment. Despite the Veteran's symptoms, the evidence of record shows that the Veteran has had temporary employment including a position at a warehouse, and a subsequent position involving hours that were not suitable for an individual with the Veteran's symptomatology. Thus, although the Veteran has shown employment, such employment does not necessarily preclude an award of TDIU unless the employment is not considered "substantially gainful employment." See id. There is no regulatory definition of "substantially gainful employment." However, 38 C.F.R. § 4.16(a) instructs that "[m]arginal employment shall not be considered gainful employment." "Marginal employment" exists when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Here, the Veteran states in his Application for Increased Compensation based on Unemployability, that the most he has earned in a year is $20,000. Regardless, even if the income exceeds the poverty threshold, marginal employment may still exist on a facts-found basis. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran's temporary periods of employment constitute no more than marginal employment, and do not preclude an award of a TDIU. In sum, the Board finds that after affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to secure and follow substantially gainful employment due to service-connected disabilities, and an a TDIU rating is warranted. 38 U.S.C. § 5107(b) (2014). ORDER An initial rating in excess of 70 percent for a psychological disorder, claimed as PTSD, is denied. TDIU is granted. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs