Citation Nr: 1800432 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-13 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 50 percent. 2. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Bryan Held, Agent ATTORNEY FOR THE BOARD Amanda Christensen, Counsel INTRODUCTION The Veteran had active military service from May 2002 to August 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The Veteran's PTSD manifest with symptoms including anxiety and depression, causing occupational and social impairment with reduced reliability and productivity. 2. The Veteran's service connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to an Increased Rating for PTSD Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran's PTSD is currently evaluated as 50 percent disabling, effective May 19, 2011, under the criteria of Diagnostic Code 9411. See 38 C.F.R. § 4.130. A 50 percent rating contemplates 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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; intermittently illogical obscure, or irrelevant speech; 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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 memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association. 38 C.F.R. § 4.130. The fourth edition of the manual (DSM-IV) contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran first underwent a VA compensation and pension PTSD examination in October 2011. The Veteran reported having two romantic relationships since service, but indicated he was currently single. He reported having no close friends and stated that he spends much of his time alone or with his family. He described feeling anxious and stated that he is terrified to show affection. He denied overt panic attacks, but indicated he isolates himself due to anxiety. He indicated that he had completed an associate's degree in 2010 and had been working for the same company since June 2011. The examiner indicated that that Veteran has the following symptoms due to his PTSD: depressed mood, anxiety, suspiciousness, panic attacks weekly or less, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The examiner found the Veteran to have good eye contact; mild psychomotor agitation; fair insight into his emotional impairment; organized thought processes, although obsessively ruminative of reportedly traumatic experiences; and normal, spontaneous, and goal-directed speech. The examiner opined that the Veteran struggles to establish and maintain healthy intimate relationships due to an inability to trust others or himself. His anxiety also results in a chronic state of hypervigilance and episodes of panic in social situations. The examiner noted that the Veteran denied a plan or intent to hurt himself but suggested that he would view death as a relief. The examiner assigned a GAF of 55 and opined that the Veteran's symptoms cause occupational and social impairment with reduced reliability and productivity. A letter from the Veteran's employer states that he was fired in May 2012 after worsening behavior over several months after being assigned a new position in an office environment. The employer stated that the Veteran struggled with being self-directed and had trouble getting along with and trusting co-workers. According to a letter from another employer, the Veteran was later hired as a seasonal employee as a home improvement store, but after a week the Veteran reported his anxiety was getting bad and he was worried about being around customers. He switched to a position unloading trucks, but in March 2013 quit stating that his anxiety was just too bad. An April 2012 VA treatment record indicates that the Veteran's employment at the home improvement store lasted only three weeks. He reported severe, unbearable anxiety and stated that he avoids people and becomes anxious when he has to deal with them. The treatment note states that the Veteran reported avoidance behaviors, intrusive thoughts, irritability, watchfulness, and nightmares. The examiner noted the Veteran had a neat appearance; no psychomotor retardation; normal speech; a calm mood and appropriate affect and behavior; and normal insight, judgment, memory, and concentration. The examiner assigned a GAF of 55. A September 2014 VA treatment record indicates the Veteran worked overseas for a private contractor from November 2013 to May 2014, although he reported being a nervous wreck during that time, feeling paranoid and distrustful. The Veteran reported continuing to avoid crowds and people and stated that his friends are mostly drinking buddies. He reported suicidal thoughts in terms of being tired of feeling the way he feels and wishing he would die. In January 2017 the Veteran underwent another VA examination. He reported when working overseas in 2013 and 2014 he had limited interactions with others but some bouts of paranoia where he worried others know about the rape allegation against him. When he returned stateside he reported working for cash "here and there" and for a cousin. He then opened his own business building decks and fences in March 2015, but work dried up. In November 2015 he returned overseas as a contractor. He stated that it is easier for him to work alone and in isolated locations, although he reported that has worked with a partner, with whom he feels comfortable, on more than one occasion. He reported he has been offered another contracting job in the upcoming months. The Veteran reported being a little depressed and stated that his anxiety is triggered by being in groups, authority figures, and interactions with his child's mother. He denied panic attacks but reported flashbacks and an occasional nightmare. He stated he has nonserious thoughts of suicide. The examiner noted the following symptoms due to PTSD: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner noted the Veteran was appropriately groomed; alert and oriented; cooperative with a subdued mood but a full-range of affect appropriate to content; had good eye contact; normal, spontaneous, and goal-directed speech; generally organized thought processes; and fair insight. The examiner opined that the Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity. The Board finds that the evidence does not support that the Veteran is entitled to a rating in excess of 50 percent. The Veteran has reported a number of PTSD symptoms, primarily anxiety and depression. However, the Board finds that the nature and severity of those symptoms and their occupational and social effect on the Veteran do not cause his PTSD to more closely meet the criteria for a 70 percent rating. Occupationally, the evidence reflects that the Veteran's anxiety has impacted his work. He reported he lasted only three weeks working at a home improvement store because his anxiety, even when not working around customers, was too bad. However, he reported being able to function as an overseas contractor, spending approximately six months in a position in 2013-2014 and again going overseas with the same company for almost a year in 2015-2016. The Veteran has reported that he prefers working alone, but has worked with a partner. The Veteran's employer until mid-2012 reported that the Veteran had trouble getting along with and trusting others when employed with the company. Thus, the evidence, along with the Veteran's own statements, is consistent that the Veteran's PTSD symptoms cause him difficulty in establishing and maintaining effective work relationships. Although the Board appreciates the impact of the Veteran's anxiety, the evidence does not support that the symptom causes the Veteran to be entirely unable to maintain an effective work relationship. The Veteran himself has reported being able to work with a trusted partner. His two overseas contracting stints with a third lined up as of January 2017 suggest success in working with that employer. The evidence further reflects that the Veteran's anxiety in particular has caused him to isolate socially. However, he has indicated he does spend time with his cousin and brother. He also reports he chats with others when out at a bar, although such conversations do not lead to established relationships. He reported most of his friends are drinking buddies. He has described his romantic relationships as flings. Thus, the evidence supports that the Veteran's PTSD symptoms do cause him difficulty in establishing and maintaining social relationships, but does not suggest that they prevent it entirely. While the Veteran has reported some depression, he has not indicated it is continuous or near-continuous. He has denied overt panic attacks, but has reported attacks of anxiety. He has denied any plan or intent to hurt himself, although he has suggested viewing death as a relief. Despite all of his reported PTSD symptoms, the Veteran has regularly been found to have significant functioning. He has always been appropriately groomed at VA examinations and medical appointments, he has been noted to have good eye contact and normal speech, with fair insight and generally organized thought processes, and no gross memory impairment or attentional defects. The Board acknowledges all the symptoms reported by the Veteran. However, the Board finds that the Veteran's condition overall reflects that the nature and severity of the Veteran's PTSD symptoms causes at most occupational and social impairment with reduced reliability and productivity. While the Veteran has symptoms that clearly interfere with his social and occupational functioning, he has been able to perform activities of daily living; perform some work, including in an overseas environment; and maintain relationships with some family members. His overall functioning is greater than that contemplated by a 70 percent rating, and the nature and severity of his symptoms are adequately considered by his currently assigned 50 percent rating. The Board notes a 50 percent evaluation indicates a one-half reduction in occupational capability, a considerable disability evaluation which would cause many of the problems the Veteran has reported. Based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 50 percent. Entitlement to TDIU VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran is rated 50 percent for PTSD and also has ratings for lumbosacral strain and lower extremity radiculopathy, for a combined rating of 70 percent effective May 19, 2011. Therefore, the Veteran meets the schedular rating criteria for TDIU. 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2012); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). At his October 2011 VA PTSD examination the Veteran reported he completed an associate's degree in 2010 and had worked for a company since June 2011. On the Veteran's application for vocational rehabilitation he reported he worked from January 2012 to May 2012 as a liaison between vendors and clients and then developing training materials before being fired "for trust issues relating to anxiety/depression." He then reported he worked for a company from July 2012 to November 2012 building decks, doing roofing, and other similar work before moving to a different state to find work in the government/military sector. He then did inventory work from January 2013 to February 2013 before quitting when he found a job closer to home. From February 2013 to March 2013 he worked at a home improvement store but reported he left due to anxiety from customer interaction. At his January 2017 VA PTSD examination he reported he worked in fabrications for a private contractor overseas from November 2013 to May 2014. When he returned stateside he reported working for cash "here and there" and for a cousin. He then opened his own business building decks and fences in March 2015. He reported work dried up, and he returned overseas as a private contractor again from November 2015 to December 2016. He indicated he had future contracting work lined up. Thus, the evidence reflects that although the Veteran has held a number of different jobs since 2011 he has generally been employed the entire time, with some periods of unemployment between jobs. The Veteran has reported his PTSD symptoms caused him to lose or leave one job in 2012 and another 2013. However, he has not reported his service-connected disabilities prevented him from doing other types of work. For example, he did construction-type work for about five months in 2012 before quitting to move to a different state and again in 2014 and 2015 between overseas private contracting positions. The Veteran also appears to have found occupational success in the private contracting field, going overseas on contracts twice, from November 2013 to May 2014 and from November 2015 to December 2016 in the field of fabrications. While the Veteran has reported some difficulties in his employment, particularly due to his anxiety, he has nonetheless demonstrated an ability to be gainfully employed despite those difficulties. The Board acknowledges the Veteran's preference to work alone or with a trusted partner, and notes that he appears to have training in experience in fields that allow him to do so. The January 2017 VA examiner opined that despite the Veteran's symptoms it is less likely than not that the Veteran would have significant difficulty functioning effectively in the workplace and sustaining gainful employment, particularly if he is able to work independently with his current skill set. Based on the forgoing, the Board finds that the Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation; therefor his is not entitled to TDIU. Duties to Notify and Assist The Board finds that the VA has met its duties to notify and assist. The claim for a higher initial rating arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. Therefore, and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). A statement of the case as to the appeal for a higher rating was issued in March 2014 as required by 38 U.S.C.A. § 7105(d). In September 2016, as ordered by the Board in its September 2016 remand, the AOJ provided the Veteran notice as to a claim for TDIU as well as a VA Form 21-8940, which the Veteran did not complete and return. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished as the Veteran's VA treatment records have been obtained and he has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded VA examinations in October 2011 and in January 2017. He has not alleged the examinations were inadequate. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER A rating in excess of 50 percent for PTSD is denied. A total disability rating based on individual unemployability is denied. ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs