Citation Nr: 1801682 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in the District of Columbia that granted service connection for PTSD, evaluated at 30 percent disabling effective May 6, 2008. Additionally, a July 2014 rating decision of the VA in Roanoke, Virginia, denied entitlement to a TDIU. This appeal has previously been before the Board, most recently in May 2012, when it was remanded for additional development. The Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran's PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but not occupational and social impairment with reduced reliability and productivity or worse. 2. The evidence of record does not show that the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103A , 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. With regard to the private treatment records, the Veteran's records were requested on multiple occasions, but the Veteran's treating medical professional never submitted the requested records. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was afforded two VA examinations in connection with his claim, and neither the Veteran, nor his representative objected to the adequacy of the examinations. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Of note, the Veteran was scheduled for an additional psychiatric examination, but he canceled the appointment. The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Increased Rating In May 2013, service connection was granted for PTSD with a 30 percent rating assigned as of the date the claim was received in May 2008. The Veteran filed a notice of disagreement with his initial disability evaluation. In support of this claim, the Veteran asserted that his PTSD symptoms were more severe than the 30 percent rating that was assigned. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.S. § 1155; 38 C.F.R. Part 4. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the several grades of the disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. PTSD is evaluated under either the General Rating Formula for Mental Disorders. 38 C.F.R § 4.130, Diagnostic Codes 9201 - 9440 (2016). Pertinent to this appeal, the General Rating Formula for Mental Disorders rates PTSD as follows: 30 percent: 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 50 percent: 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 70 percent: 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 that is 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 inability to establish and maintain effective relationships. 100 percent: 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, for the veteran's own occupation, or own name. 38 C.F.R § 4.130, Diagnostic Code 9411 General Rating Formula for Mental Disorders. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442. Nevertheless, as 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. A June 2008 private mental health evaluation from L. Glogau, M.A., a licensed psychological associate, and Dr. Freeman is of record. The evaluators indicate that the Veteran experiences symptoms of sleep problems, including nightmares and waking up sweating with his heart racing; avoidance behaviors related to the war; easy startle response to loud noises; problems with memory and concentration; discomfort in crowds; and social isolation with no desire to have close friends or attend social events. Upon examination, the Veteran was assessed as cooperative, displaying normal dress, dysthymic mood, restricted affect, linear thought process, and limited judgment and insight. He was negative for homicidal or suicidal ideations. The Veteran's hypervigilance and hyperarousal were noted to interfere with his productivity. His sleep problems were noted to cause difficulty maintaining memory and concentration, therefore negatively impact his ability to learn new skills. Additionally, evaluators noted the Veteran's hypervigilance severely compromised his ability to initiate and sustain work relationships. His isolating behaviors compromised his ability to initiate or sustain social relationships. The Veteran's prognosis was noted as poor, and he was deemed permanently disabled and unemployable. A September 2008 VA examination is of record. The Veteran was diagnosed with PTSD. The examiner noted that the Veteran had never been prescribed psychiatric medications, and that his primary care records from July 2006 to January 2008 were entirely negative for PTSD and depression. The examiner also noted the private evaluation conducted on May 2008 at which the Veteran was diagnosed with PTSD, chronic, severe and assigned an extremely low GAF of 36. The examiner expressed concern about the details of the private evaluation. Specifically, the examiner noted that the details were vague, provided an incomplete life history, and made no mention of employment history. Further, the examiner was concerned that the private evaluation concluded that the Veteran was permanently and totally unemployable, but the Veteran had no history of mental health treatment. The examiner also noted that the Veteran's impetus for seeking the private mental health evaluation was related to filing for disability and a referral from his Veteran's service representative, rather than any emotional distress on his own part. The examiner stated the private mental health evaluation "should be viewed with extreme caution." Upon examination, the Veteran demonstrated no suicidal or homicidal ideations, no memory impairment or obsessive compulsive behavior, no impairment of thought process or communication, no delusions or hallucinations, and adequate personal hygiene and basic activities. The Veteran denied significant problems with depressed mood, excessive anxiety, and impulse control. The Veteran reported sleep problems with initial insomnia most nights and frequent waking and middle insomnia on "bad nights." The Veteran also reported mild hypervigilance, but denied avoidance behaviors, irritability, poor concentration, excessive hyperstartle response, reexperiencing phenomena or other triggers. The examiner noted that the Veteran reported functioning well at work for thirty-three years after his separation from service, had good family relationships, and participated in regular activities such as travel and fishing. A February 2009 statement from Ms. Glogau and Dr. Freeman is of record. The statement indicates the Veteran has received psychiatric treatment since May 2008. The evaluators report that the Veteran's PTSD symptoms include sleep difficulties, nightmares, intrusive thoughts of his military experience, hypervigilance, and hyperirritability-demonstrated by road rage. The evaluators noted that the Veteran's PTSD symptoms interfere significantly in all areas of his life. A May 2012 statement from Ms. Glogau and Dr. Freeman is also of record. The statement indicates the Veteran is currently diagnosed with PTSD, chronic, severe, and has attended treatment visits approximately every three to four months from May 2008 until May 2012. The evaluators report that the Veteran's PTSD symptoms interfere significantly in all areas of his life. Specifically, the Veteran is noted to experience problems with sleep, nightmares, night sweats, intrusive thoughts, hyperirritability, hypervigilance, and social isolation. The Veteran was also noted to experience problems with memory and concentration that negatively impact his ability to learn new skills; experience cognitive problems, making him unable to participate in extended periods of concentration, problem solving, or decision making; and hyperirritability, hypervigilance, and isolation behaviors, which compromise his ability to initiate or sustain work and social relationships. The Veteran's prognosis was noted as poor, and he was deemed permanently disabled and unemployable. A January 2013 VA examination for PTSD is also of record. The Veteran was assessed with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. A May 2014 statement from Ms. Glogau and Dr. Freeman is of record. The statement indicates the Veteran reports that he is more short tempered, more hypervigilant, and has more problems focusing. He reports only feeling safe in his home. Additionally, the Veteran reported that as he has gotten older he thinks more about his experiences in Vietnam, particularly related to deceased soldiers. Generally, the Veteran's VA and private somatic treatment records from 2006 to 2013 show no indication of psychiatric problems. The Veteran is consistently assessed as alert and oriented to person, place, and thing; well-groomed, and well nourished, in no acute distress. The Veteran reported no suicidal or homicidal ideation. Additionally, there is no indication the Veteran experiences memory problems or barriers to learning. PTSD and depression screens are negative for symptoms. Specifically, no nightmares, avoidance behaviors, or exaggerated startle response were reported. Importantly this case was remanded in 2012 to obtain clinical mental treatment records other than the summary corresponded provided by Ms. Glogau and Dr. Freeman. Attempts made in April and June 2014 resulted in two additional documents summarizing the Veteran's treatment, but no records of individual treatment sessions. This stymies the Board's ability to understand the basis for the mental health professionals' opinions as to the severity of the Veteran's psychiatric symptomatology, which as described is so far departed from the other evidence of record as to call into question its validity. While treatment summaries from Ms. Glogau and Dr. Freeman indicate varying difficulties with sleep, memory, and socialization, these summaries also indicate linear thought process, negatives for self-injurious behaviors, and limited, but not impaired judgment and insight. Additionally, when the Veteran's symptoms are noted to be more severe, his biggest difficulties seem to be an increase in difficulty with memory/concentration, irritability, hypervigilance, and isolation. However, as stated previously, these difficulties were not observed by other medical practitioners, suggesting that they are experienced only occasionally or intermittently, rather than significantly impacting all areas of his life as suggested by Ms. Glogau and Dr. Freeman. With symptoms and impact as severe as described by the private mental health treatment providers, one would expect them to manifest with the Veteran's other treatment providers. As noted, a VA examiner significantly questioned the merit of the initial private treatment reports. The evidence of record consistently demonstrates that the Veteran experienced at most mild symptoms during treatment visits for somatic complaints and mental health evaluations conducted outside of his sessions with Ms. Glogau and Dr. Freeman. He was consistently negative for depression or other psychiatric screenings, and while such is not dispositive that his PTSD is not severe, if one were to believe that the Veteran's symptomatology was meritous of a GAF of 36, it would be surprising that the severity of his symptoms would only be apparent to the two private mental health professionals and not to any of the other medical professionals who treat him for a number of conditions, including his PTSD. Aside from these summaries of private treatment, there is no indication that the Veteran experiences occupational and social impairment with reduced liability and productivity. The evidence of records does not indicate symptoms of panic attacks, difficulty in understanding complex commands, tendency to forget tasks, impaired abstract thinking, non-linear thought patterns, disturbance of motivation or mood (other than two occasions-June 2008 and January 2013), or flat affect. The Board acknowledges that the Veteran is noted to experience some symptoms associated with a higher disability evaluation. Specifically, the Veteran has reported experiencing sleep disturbance, which manifests as memory difficulty and an inability to learn new skills; and hypervigilance, which manifests as an inability to establish and maintain social and work relationships. However, the evidence of record indicates the severity of these symptoms is not sufficient to warrant a disability evaluation in excess of 30 percent. With regard to the private medical summaries, the Board finds that they are so out of line with the remainder of the medical evidence of record as to wholly eliminate their probative value. The VA examiner explained that the results should be approached with extreme caution and provided a number of reasons for doing so. The Board concurs with this assessment. The Veteran argues that the only appropriate disability evaluations in this case are either 70 percent or 100 percent. Further, the Veteran argues that there "is absolutely no evidence in the record" against a rating increase. The Veteran states his activities in Vietnam haunt him to this day. The Board finds that as a lay person, the Veteran is competent to report what comes to him through his senses, yet he lacks the medical training and expertise to provide a medical opinion as to the severity of his PTSD disability. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board has considered whether the evidence of record warrants an increased disability evaluation. Neither the Veteran's report of symptoms, nor the objective medical evidence demonstrates that the Veteran's psychiatric symptoms cause more than intermittent and occasional impact on his ability to function in occupational and social settings. Accordingly, an increased disability evaluation is not warranted. III. Total Disability Based on Individual Unemployability (TDIU). Disability evaluations are determined by comparing the Veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, the disability shall be ratable at 60 percent or more, and that if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. May 2012 and 2014 treatment records from Ms. Glogau and Dr. Freeman indicate that the Veteran's PTSD causes him to be permanently and totally disabled and unemployable. The Board also notes that the Veteran filed a claim for a TDIU in May 2013. At that time, the Veteran indicated that he last worked in 2002 as a trucker. The Veteran's claim for a TDIU was denied in a July 2014 rating decision. The Veteran timely appealed arguing his PTSD significantly interfered with his ability to maintain employment. The Veteran is currently service-connected for PTSD evaluated at 30 percent disabling, effective May 6, 2008; diabetes mellitus type II with erectile dysfunction evaluated as 20 percent disabling, effective January 29, 2002; bilateral peripheral neuropathy of the lower extremities, associated with diabetes, each evaluated as 20 percent disabling, effective May 6, 2008; and bilateral peripheral neuropathy of the upper extremities, associated with diabetes, each evaluated as 10 percent disabling, effective May 6, 2008. Additionally, the Veteran is service connected for coronary artery disease evaluated as 30 percent disabling, effective January 29, 2003, 60 percent disabling, effective January 12, 2007, 100 percent disabling, effective January 17, 2007, and 60 percent disabling, effective May 1, 2007. During the relevant period, the Veteran's combined disability evaluation was 90 percent, effective May 6, 2008. As such, the schedular requirements of 38 C.F.R. § 4.16(a) are met. Once the threshold requirement has been satisfied, the pertinent question becomes whether the Veteran's disabilities preclude him from obtaining or maintaining substantially gainful employment. VA records indicate the Veteran earned 12 years of education, achieved the rank of E-4, and held the position of specialist prior to separation from service. While in service, the Veteran served as a stock records specialist and a supply handler. After separation from service, the Veteran worked as a trucker. On his initial application for a TDIU, the Veteran indicated that he worked as a trucker from 1968 to 2002 and lost only 8 days from work due to illness during this time. Based on the evidence of record, the Board finds TDIU is not warranted. As discussed above, the Veteran's PTSD does not cause more than occasional and intermittent impairment in occupational and social functioning. Regarding the Veteran's diabetes, treatment records from 2003 to 2006 indicated the Veteran's diabetes is controlled with medication and diet. Treatment records received June 2008 indicate the Veteran's diabetes mellitus requires medication and a restricted diet and is associated with complications of diabetic neuropathy. In August 2013, the Veteran was noted to experience 1+ edema bilaterally in his extremities. Regarding his heart condition, the Veteran's treatment history is notable for an irregular heartbeat, some dizziness, and occasional shortness of breath in 2008. A September 2010 VA examination indicates the Veteran's heart condition is stable and is treated with medications. The Veteran was noted to be able to perform self-care, drive, walk stairs slowly, and walk no more than 50 yards before stopping due to shortness of breath. The Veteran's heart condition was noted to have no effects on his usual daily activities or ability to work. August 2013 treatment records indicate the Veteran has normal cardiac heart sounds with no murmur, auscultation, wheezing, or crackles. After weighing all the evidence, the Board finds the greatest probative value in the VA treatment records and examinations. VA treatment records show no indication that the Veteran's service connected disabilities either individually or in total combine to render the Veteran incapable of obtaining or maintaining substantially gainful employment. The medical evidence of record indicates the Veteran's service-connected physical disabilities are controlled with medication and diet. The Veteran's most significantly disabling condition, coronary artery disease, is considered stable and found to have no effect on his ability to work. The Veteran's more recent cardiac symptoms have been noted as normal. While the Veteran's private mental health treatment providers have opined that he is permanently disabled and unemployable due to his PTSD, the evidence of record does not support this conclusion, and their opinions have been found to lack probative value. Regardless, there is no indication of many of the symptoms considered to be reflective of severe symptoms such as suicidal or homicidal ideations, hallucinations or delusions, illogical thought or speech, inability to perform activities of daily living, neglect of personal appearance, or an inability to function independently or appropriately in social or occupational environments. The Veteran has reported spending time fishing and taking annual trips to places such as Las Vegas. In January 2013, shortly before the initial claim for a TDIU, a VA examiner found total occupational and social impairment due to PTSD did not exist. Notably, at this exam, the Veteran reported taking a regular retirement at age 55 and denied any job-related difficulties or problems at work. The Veteran also reported sleep disturbance, intrusive memories, suspiciousness, and mild memory loss. The severity of these symptoms, however, did not rise to the level of total inability to maintain employment. Specifically, having considered the totality of the Veteran's psychiatric symptomatology, the examiner concluded that it would most likely cause occupational and social impact with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. There is persuasive evidence in the record indicating that the Veteran will experience limitations working, but he is not prevented from obtaining or sustaining substantial gainful activity. While the Veteran asserts his PTSD symptoms have caused an inability to obtain work, the evidence of record does not support his position. While the Board does not wish to minimize the nature and extent of the Veteran's overall service connected disabilities, the evidence of record does not support his claim for a TDIU. Given the Veteran's work experience and the impact he experiences from his physical and mental disabilities, the Board cannot say that the Veteran's service-connected PTSD, or the combination of his service connected disabilities, prevent him from obtaining or maintaining substantially gainful employment with the ability to work in a solitary environment as needed. The totality of the medical evidence of record weighs against finding the Veteran unable to obtain or maintain substantially gainful employment. Accordingly, a TDIU is not warranted. ORDER A disability evaluation in excess of 30 percent for PTSD is denied. A TDIU is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs