Citation Nr: 18140412 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-08 241 DATE: October 3, 2018 ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating for individual unemployability based upon service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected PTSD has manifested as no worse than occupational and social impairment with deficiencies in most areas due to symptoms such as: anxiety, depression, suspiciousness, distrust of others, avoidance, difficulty sleeping, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, mild memory loss, such as forgetting names, directions or recent events, and sporadic suicidal ideation without plans or intent. He has managed his symptoms effectively with regular outpatient psychiatric treatment and medications, maintained some positive family and other social relationships, and had employment opportunities. 2. The preponderance of the evidence shows the Veteran’s service-connected disability does not render him unable to secure or follow substantially gainful employment, consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1964 to July 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an RO rating decision dated September 2012, which granted the Veteran entitlement to service connection for PTSD beginning May 16, 2011, and assigned a disability rating of 50 percent. Although the Veteran indicated he was specifically seeking a 70 percent rating in a written statement submitted with his February 2016 VA Form 9, which the RO subsequently granted in a rating decision dated April 2017, his representative then filed two briefs, in July 2017 and May 2018, asserting the RO erred in not granting him a higher rating. Thus, the Board will continue to consider the initial rating issue on appeal. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the November 2015 statement of the case and June 2017 supplemental statement of the case and are not repeated here in full. Except as discussed herein, neither the Veteran nor his representative has raised any other specific duty to notify or duty to assist issues regarding the claim denied above. 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). Finally, neither the Veteran nor his representative has raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). 1. Entitlement to initial rating in excess of 70 percent The Veteran currently receives a 70 percent disability rating from May 16, 2011 for his service-connected PTSD under Diagnostic Code (DC) 9411, 38 C.F.R. § 4.130. He seeks the next higher, 100 percent rating. Disability evaluations are determined by comparing the Veteran’s symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. For acquired psychiatric disabilities, a 70 percent disability rating is assigned 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 work-like setting); and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, DC 9411. A 100 percent disability rating is assigned 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, one’s own occupation, or one’s own name. Id. The symptoms enumerated in DC 9411 are not an exhaustive list, and VA must holistically consider all evidence in the record that bears on the Veteran’s occupational and social impairment. However, evaluation of the Veteran’s condition is “symptom driven” and are the “primary focus when deciding entitlement to a given disability rating.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). As such, a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Id. at 117. Moreover, the evidence must show those symptoms have caused the degree of occupational and social impairment associated with the requested disability rating. See id.; see 38 C.F.R. § 4.130, DC 9411. The Board finds the Veteran is not entitled to a 100 percent rating because the severity and nature of the Veteran’s PTSD symptoms and their effects on his occupational and social functioning have not satisfied or approximated the 100 percent disability rating criteria, which requires “total occupational and social impairment,” at any point during the appeal period. Throughout the appeal period, the Veteran consistently has reported and been observed to have the following PTSD symptoms upon examination: anxiety, depression, suspiciousness, distrust of others, avoidance, difficulty sleeping, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See May 2012, January 2014, and March 2017 VA examinations. The January 2014 and March 2017 VA examinations also indicated he had mild memory loss, such as forgetting names, directions or recent events. The March 2017 VA examination also indicated he had suicidal ideation without plans or intent, which related to the Veteran’s three-day, “voluntary psychiatric hospitalization in January 2016 due to suicidal ideation without any self-harming behavior.” However, a review of the hospitalization records shows the Veteran checked himself in to a VA hospital after having a “breakdown” due to his depression, and was negative for suicidal or homicidal ideation, as well as for hallucinations. The May 2012 VA examiner concluded the Veteran had occupational and social impairment with reduced reliability and productivity (indicative of a 50 percent rating), and the January 2014 and March 2017 VA examiners concluded the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood (indicative of a 70 percent rating). With respect to the symptoms relevant to a 100 percent rating, all three VA examinations showed no gross impairment in the Veteran’s thought processes or communication, no delusions or hallucinations, no persistent danger of hurting himself or others, no inability to perform activities of daily living (including maintenance of minimal personal hygiene), no disorientation to time or place, and no memory loss for names of close relatives, one’s own occupation, or one’s own name. In short, upon three separate examinations, the Veteran showed none of the enumerated symptomology for a 100 percent rating, nor any other symptoms of similar severity, frequency, and duration that demonstrate total occupational and social impairment. The Veteran’s VA outpatient psychiatric treatment records from throughout the appeal period also show an absence of any of the enumerated symptomology for a 100 percent rating, nor any other symptoms of similar severity, frequency, and duration, and generally corroborate the VA examiners’ findings regarding the nature and severity of the Veteran’s PTSD symptoms. See, e.g., February 2011 VA treatment record (finding upon mental status examination normal or negative findings regarding appearance, demeanor, speech, suicidal and homicidal ideation, thought process, thought content, and orientation); March 2012 VA treatment note (same); May 2013 VA treatment record (reported feeling anxious and depressed at times, with physician finding upon mental status examination normal or negative findings regarding appearance, demeanor, speech, suicidal and homicidal ideation, thought process, thought content, and orientation); March 2014 VA treatment record (overall coherent and oriented, with anxiety and subdued but not actively depressed mood, and no active suicidal or homicidal ideation); August 2014 VA mental health record (normal or negative findings regarding behavior, speech, thought process, and orientation, and noting Veteran’s active participation and engagement throughout group therapy session, to include providing positive feedback to other group members and sharing his previous therapeutic experiences); January 2015 VA treatment record (Veteran reported periodic startle responses and sleep trouble, and physician noted upon mental status examination subdued but not actively depressed mood with anxious affect, but normal or negative findings regarding appearance, speech, orientation, suicidal and homicidal ideation, and thought process); September 2015 VA treatment record (finding upon mental status examination less depressed and despondent but slight anxious mood, with normal or negative findings regarding appearance, speech, orientation, suicidal and homicidal ideation, thought process, and thought content with no psychotic symptoms); November 2016 VA treatment record (Veteran noted as frustrated, irritable, and anxious, but with normal appearance, with physician noting no psychotic symptoms and no imminent risk of self-harm or overt danger to others); May 2017 VA mental health records (finding Veteran able to independently complete all activities of daily living and upon mental status examination, normal or negative findings regarding appearance, demeanor, speech, suicidal or homicidal ideation, thought process, thought content, orientation, insight, and judgment, and noting no panic attacks or hallucinations); June 2017 VA mental health record (finding upon mental status examination normal or negative findings regarding appearance, demeanor, speech, suicidal and homicidal ideation, thought process, thought content, orientation, insight, and judgment). The Veteran has managed his PTSD symptoms effectively through regular VA outpatient treatment and psychotropic medications throughout the appeal period. See, e.g., October 2013 VA treatment record (noting Veteran appeared stable, with no indication to change meds); September 2015 VA treatment record (noting satisfaction and efficacy of medication regime and ongoing psychotherapy); December 2017 VA treatment record (same). Regarding social functioning, the evidence shows the Veteran lives alone and experiences some social isolation and relationship difficulties, but engages in social activities and maintains social relationships sufficient to demonstrate he does not have or approximate “total” social impairment. See, e.g., May 2012 VA examination (reported he mainly talks to his children but does not date or entertain visitors, and has “fought with other agencies such as Veterans of Foreign Wars and other social organizations”); December 2012 VA treatment record (reported he “takes up too many community projects”); May 2013 VA treatment record (reported he was “involved in some community projects”); January 2014 VA examination (reported having friends that visit him three to four times per year); January 2014 VA treatment record (reported he had just returned from visiting his sister in Texas); February 2014 VA treatment note (reported going to stay with family members / friends over the weekend); April 2015 VA treatment record (discussed experiences with online dating); May 2015 VA treatment record (same); August 2015 VA treatment record (reported he went out with friends for dinner); January 2016 VA treatment record (reported joining various organization, maintains contact with children and ex-wife); June 2016 VA treatment record (reported he was traveling to his son’s wedding the next day); November 2016 VA treatment record (reported issue he was having with someone at his Moose Lodge and his discussions about it with another friend, his prior negative dating experiences, and his mediation of a dispute between two of his daughters); March 2017 VA treatment record (reported a significant relationship that occurred and ended during appeal period). Regarding occupational functioning, the Veteran is retired and receives a pension from IBM (for which he worked for 23 years), Social Security retirement benefits, and VA disability compensation. The evidence shows the Veteran has some degree of occupational impairment from his PTSD, but not “total” occupational impairment as required for a 100 percent rating. The Veteran has had at least one job during the appeal period, with the Census Bureau in 2013, and, in a July 2015 VA treatment record, reported being offered an unspecified job, which demonstrates the Veteran has had the ability to obtain employment. The Board considered documents submitted by the Veteran that were prepared by his former VA psychiatrist, including a student loan discharge application dated June 2010, and a letter describing the Veteran’s treatment symptoms and treatment history dated March 2011. The June 2010 loan discharge application notes diagnoses of bipolar disorder, anxiety disorder, attention deficit disorder, and “probable PTSD,” and states the Veteran’s “mood shifts, marked anxiety, [and] irritability have severely impacted his functioning. He has repeatedly tried to obtain [and] maintain employment for past 15 years without sustained success.” The document contains preprinted language stating the signer certifies, in his or her “best professional judgment, the applicant identified above is unable to work and earn money in any capacity in any field of work because of an injury or illness that is expected to continue indefinitely or result in death.” (emphasis in original). The Board finds this document has no probative value. The physician’s certification that the Veteran was unable to work in any field of work is undermined by the Veteran’s report in a May 2011 VA treatment record that he was working until 2011 in the mortgage banking field. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based upon an inaccurate factual premise has no probative value). Further, the same psychiatrist who signed this letter advised the Veteran starting in November 2010 (just five months later) to “consider work in the service industry,” such as dining, and noted the Veteran was considering bartending. This directly contradicts the psychiatrist’s certification that the Veteran was incapable of work in any field due to a condition expected to continue indefinitely. Next, the VA psychiatrist’s March 2011 letter notes the Veteran’s ongoing treatment for mood instability, depression, high anxiety, “signs and symptoms” of PTSD, and attention deficit disorder. It notes the Veteran had marked lability of emotions and at times had to struggle to control feelings of intense anger; had great difficulty being organized and completing tasks; had struggled to complete job applications and when he obtained employment it had not worked out well for the Veteran; repeatedly had conflict at work with people in positions of authority, which at times led to premature termination of his employment; and that the Veteran was “hardly ever . . . able to make anything like a sustainable wage.” Although the letter is credible evidence of some degree of occupational impairment, the Board finds its probative value as evidence of “total” occupational impairment is undermined by the aforementioned suggestion by its author that the Veteran consider food service industry work, and is further diminished by other evidence in the record that shows the Veteran has been able to obtain employment despite his limitations. See, e.g., May 2015 VA treatment record (noting Veteran was working until 2011 in the mortgage banking field); July 2015 VA treatment record (Veteran reported being offered employment). The Board also considered the Veteran’s complaints regarding the January 2014 VA examination, including that the examination was “short,” that the examiner was “abrupt” and “bordered on being hostile,” and that the narrative of the examination report does not accurately reflect what the Veteran reported. The Board finds these complaints are vague and non-specific, as the Veteran does not identify any particular errors or omissions in the report. Moreover, the Board finds the January 2014 VA examination report is generally consistent with the May 2012 and January 2017 VA examination reports in that neither of those reports showed that the Veteran had any of the of the enumerated symptomology for a 100 percent rating, nor any other symptoms of similar severity, frequency, and duration. The Board finds the evidence as a whole is insufficient to support a legal finding that the Veteran’s service-connected PTSD symptoms have not resulted in total occupational and social impairment at any time during the appeal period. The preponderance of the competent and credible evidence shows the Veteran’s symptomatology and level of impairment from his service-connected PTSD are consistent with and contemplated by the current, 70 percent rating, which the Board again notes is what the Veteran himself initially requested. He does not satisfy the criteria for a 100 percent rating, and his claim for an increased rating must be denied. The Board considered the applicability of the benefit-of-the-doubt doctrine and finds it inapplicable because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to a TDIU The question of whether the Veteran’s service-connected PTSD prevents him from maintaining long term employment has been raised by the record. See February 2016 VA Form 9 addendum. When a request for a TDIU is made during the pendency of a claim, whether expressly raised by a veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Thus, the issue of entitlement to a TDIU is before the Board. The RO properly considered this issue as part of the appeal in the 2017 Supplemental Statement of the Case. VA will grant TDIU benefits when the evidence shows the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to be eligible for schedular TDIU. The Veteran’s single service-connected disability of PTSD, rated at 70 percent, meets that criterion, thus the question before the Board is whether the Veteran is unemployable. In determining whether unemployability exists, 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 the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). After a full review of the record, the Board finds a TDIU is not warranted. The preponderance of the evidence shows the Veteran remains capable of obtaining substantially gainful employment. He has a bachelor’s degree in economics, 23 years of sales experience with IBM, and sales and other experience with other companies. His VA treatment records show he worked until about 2011 in the mortgage banking field according to a May 2015 psychology consult note and for the Census Bureau in 2011 and 2013, and was also offered unspecified employment in or about July 2015. The evidence is not in at least relative equipoise that the Veteran’s service-connected PTSD disability alone is of sufficient severity to produce unemployability. As previously noted, the Veteran’s psychiatrist recommended the Veteran consider work in the food service industry, from which it may be reasonably inferred the Veteran was deemed medically capable of maintaining work from a functional limitations standpoint. An August 2015 VA note indicates not only that the Veteran was considering seeking employment, but he was “strongly encouraged” to pursue this, again clearly showing that treating provider also felt he was medically capable of working. None of the VA examiners suggested the Veteran’s PTSD prevented him from obtaining or maintaining employment. The Veteran points to letters his treating psychiatrist wrote indicating he was totally disabled with respect to his ability to repay his student loans. Those documents, however, do not suggest that PTSD alone was sufficient to render him unemployable, but, rather, list other diagnoses and the resulting impairments due to each. For example, the only impairment listed due solely to PTSD was hypersensitivity to circumstances with emotional overreactions, which has led to marked interpersonal conflict. It is the Board’s obligation to evaluate the medical evidence and determine whether it supports a finding of unemployability. Here, the symptoms and impairments listed by that doctor as attributable to the PTSD would not be enough, standing alone, to prevent gainful employment. That doctor clearly provided his conclusions on total disability based on the various diagnoses and constellation of symptoms, and not strictly on PTSD. The Board recognizes the Veteran’s service-connected disability negatively affects his ability to work. However, the sole fact that a claimant has occupational impairment is not enough to warrant the grant of a TDIU. A schedular rating itself is recognition that a claimant’s occupational capacity is impaired to some degree. See Van Hoose, 4 Vet. App. at 363. 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 injury. 38 C.F.R. § 4.1; Van Hoose, supra. In this case, the Veteran’s PTSD is rated as 70 percent disabling under 38 C.F.R. § 4.130, DC 9411. The rating criteria for DC 9411 expressly contemplate symptomatology that would impact a veteran’s ability to work. The Veteran’s 70 percent schedular rating for his service-connected PTSD adequately addresses his impaired occupational capacity. [CONTINUED NEXT PAGE] The benefit of the doubt rule does not apply because the evidence is not in at least relative equipoise that the Veteran’s service-connected PTSD disability alone prevents him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Ortiz, supra. Accordingly, the Veteran is not entitled to a TDIU. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel