Citation Nr: 1803705 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 15-06 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), unspecified depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith,Counsel INTRODUCTION The Veteran served on active duty from February 1989 to May 1994. 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) (2012). This case comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which originally had jurisdiction over this appeal, and Louisville, Kentucky, to which jurisdiction over this case was transferred and which forwarded the appeal to the Board. A temporary total hospitalization rating was assigned to the service-connected PTSD, unspecified depressive disorder, from June 16, 2015, to August 31, 2015. The current claim for an increased rating does not include this period. In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A written transcript of the hearing has been prepared and incorporated into the evidence of record. In May 2017, the claims were remanded for additional evidentiary development, and the case has now been returned to the Board for further appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claims. FINDINGS OF FACT 1. Throughout the period on appeal and exclusive of a period of a temporary total hospitalization rating, the Veteran's PTSD with unspecified depressive disorder manifested as self-reported sleep disturbance, nightmares, difficulty getting along with others, and isolation tendencies; symptoms attributable to his service-connected PTSD with unspecified depressive disorder resulted in no more that occupational impairment with reduced reliability and productivity. 2. The Veteran's service-connected mental health disorder, residuals of stress fracture of the left ankle, and tinnitus, reduce his capacity for working in a high pressure environment or closely with other employees, but do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating greater than 50 percent for PTSD with unspecified depressive disorder (exclusive of a period of a temporary total hospitalization rating) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 4.1, 4.15, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial Considerations The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The discussion below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings - In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012) ; 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Under the general rating formula for the evaluation of mental disorders, 38 C.F.R. § 4.130, DC 9411, effective November 7, 1996, PTSD will be rated as follows: 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; memory loss for names of close relatives, own occupation, or own name. - 100 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 that 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 worklike setting); inability to establish and maintain effective relationships. - 70 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 judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. - 50 percent The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Entitlement to an Initial Rating in Excess of 50 Percent for PTSD, Unspecified Depressive Disorder. The Veteran asserts that his service-connected PTSD, unspecified depressive disorder, is worse than what is reflected by his current 50 percent rating. Specifically, at the recent hearing, he reported sleep disturbance, nightmares, difficulty getting along with others, and isolation tendencies. Review of the record reflects numerous mental health examinations were conducted by VA over the years. It is noted that VA examinations and 2008 and 2011 did not diagnose PTSD. Moreover, VA examination in July 2016 did not find that the criteria for a diagnosis of PTSD were met. It was specifically noted by the VA examiner that when VA diagnosed PTSD in 2015, no psychological test was utilized, and the diagnosis was based on the Veteran's self-report of symptoms. The Board remanded the claims for additional development in May 2017, to include a contemporaneous examination to address the severity of PTSD. The remand noted that the evidence of record included treatment records subsequent to a July 2016 VA examination report, to include a document which attested to the Veteran's abrasiveness with others. Also of record was a January 2017 VA physician's statement that reported auditory and visual hallucinations. The Board has also considered the February 2017 statements by the Veteran's wife and a DAV representative. The Veteran's spouse claimed that he often said that he was going to hurt himself and/or others. He experienced panic attacks and spent time alone in the woods away from others. She indicated that he would not bathe or shave. The DAV representative reported that the Veteran had come into their office on occasion looking unkempt and in pajamas. He exhibited aggressive behavior and paranoid personality. Review of the May 2017 VA mental health examination report reflects that the examiner reviewed the claims file. The final diagnoses were anti-social personality disorder, stimulant use disorder, and alcohol use disorder. The examiner noted that the Veteran's mental health symptoms were attributable to these nonservice-connected conditions. He agreed with the July 2016 examination report in that the criteria for a diagnosis of PTSD were not met. For rationale, he pointed to PTSD diagnostic criteria which were not demonstrated, to include intrusion symptoms associated with a traumatic event, persistent avoidance of stimuli, negative alterations in cognition and mood, and marked alterations in arousal and reactivity. The examiner also specifically noted that the Veteran's "idiosyncratic" responses were not typically seen by those with actual PTSD. For example, he gave the same symptoms description for hallucinations, flashbacks, and dreams. The examiner also noted that the Veteran's responses were inconsistent (as they had been in previous examinations). Clearly, the preponderance of the evidence is against the Veteran's claim of entitlement to an increased disability rating for PTSD and unspecified depressive disorder in excess of 50 percent as his mental health symptoms have been attributed to nonservice-connected conditions. The most recent compensation examiner agreed with previous examiners that a diagnosis of PTSD was not supported. The examiner indicated that other than periods of intoxication and withdrawal, all of the Veteran's symptoms were attributable to his antisocial personality disorder. Service connection is not in effect for a personality disorder. The 2017 examiner agreed with previous examiners and also pointed out that the previous diagnosis of PTSD was inadequate. As the symptoms of the service-connected PTSD and unspecified depressive disorder are not shown to meet or approximate the criteria for a rating in excess of 50 percent, a higher initial rating is not warranted. There is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert, supra. In making this determination, the Board considered the Veteran's reported history of symptomatology for his service-connected PTSD. It is acknowledged that he is competent to report such symptoms and observations because this requires only personal knowledge as it comes through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the more probative evidence concerning the nature and extent of the Veteran's disabilities has been provided in the medical evidence of record. This evidence considers whether the Veteran manifests an acquired psychiatric disorder. (Personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c).) The Board finds these records to be more probative than the Veteran's subjective complaints and worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). TDIU - In General It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate "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(a)(1), 4.15 (2017). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2017). The Court noted the following standard announced by the United States Eighth Circuit Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore, 1 Vet. App. at 359. As noted above, a claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. at 34-35. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (Dec. 27, 1991). 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 to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). A total disability rating 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 service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2017). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2017). Entitlement to a TDIU The Veteran is service connected for three disabilities: PTSD and unspecified depressive disorder, rated as 50 percent disabling, residuals of stress fracture of the left ankle, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. His combined disability rating of 60 percent does not meet the criteria for consideration of a TDIU. The Board does not have the authority to assign an extra-schedular total disability rating for compensation purposes based on individual unemployability in the first instance. The Board will consider whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation, such that referral for extra-schedular consideration is warranted. The evidence of record reflects that the Veteran last worked in 2008 in a temporary position. In 2015, he reported work experience as a cook and completion of high school. As noted above, his mental health symptoms, which are significant, have been attributed to psychiatric disorders other than his service-connected PTSD with depressive features. Subsequent to the Board's 2017 remand, additional examination was conducted to determine the severity of his service-connected left ankle. The June 2017 report reflects that X-ray was interpreted as normal. The examiner noted that the Veteran's complaints of ankle pain were not congruent with the actual physical findings. There simply was no objective evidence that supported his reports of left ankle limitations. His tinnitus is noted by the Board, but the report did not include discussion of this disorder. The Board finds that the Veteran's PTSD, left ankle fracture residuals, and tinnitus, on their own, do not make him unable to secure or follow a substantially gainful occupation. Therefore, there is no basis to refer the TDIU claim for extra-schedular consideration. The Board has considered the Veteran's reported history of symptomatology for his service-connected disabilities. It is acknowledged that he is competent to report such symptoms and observations because this requires only personal knowledge as it comes through his senses. Layno, supra. However, the more probative evidence concerning the nature and extent of the Veteran's disabilities has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert, supra. Therefore, the Board is unable to identify a reasonable basis for referring the Veteran's claim for extra-schedular consideration. ORDER Entitlement to an initial rating in excess of 50 percent for PTSD, unspecified depressive disorder, is denied. Entitlement to a TDIU is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs