Citation Nr: 18141511 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-42 167 DATE: October 10, 2018 ORDER Entitlement to a disability rating in excess of 70 percent for an acquired psychiatric disability, characterized as posttraumatic-stress disorder (PTSD), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran’s acquired psychiatric disability was manifested by occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood; there is no showing of total occupational and social impairment. 2. The evidence does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for an acquired psychiatric disability, characterized as PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1969. In December 2011, the Board rendered a decision that increased the initial disability rating for the Veteran’s acquired psychiatric disability to 50 percent and remanded the Veteran’s TDIU claim for issuance of a duty-to-assist letter on the issue of entitlement to TDIU due to service-connected disability. The Board is satisfied that there was substantial compliance with this remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, in July 2013, Department of Veterans Affairs Regional Office (RO) in Winston Salem, North Carolina issued a duty-to-assist letter to the Veteran. Accordingly, the Board finds that the remand directive was substantially complied with and, thus, there is no Stegall violation in this case. In December 2013, the Board issued a decision that increased the initial disability rating for the Veteran’s psychiatric disability to 70 percent. Contemporaneously with the Board’s issuance of the December 2013 decision, the RO issued a rating decision effectuating the Board’s increase of the Veteran’s initial disability rating. In February 2014, the Veteran filed a “Request for Reconsideration, in the Alternative, Notice of Disagreement.” The RO treated the Veteran’s filing as a notice of disagreement with the December 2013 rating decision. The Veteran did not appeal the December 2013 Board decision to the United States Court of Appeals for Veterans Claims within 120 days. Because the Veteran’s February 2014 filing did not appeal from the December 2013 Board decision, it is not an appeal from the last prior final denial. Accordingly, the Board will treat the Veteran’s February 2014 filing as a new claim seeking an increase of the 70 percent rating assigned to the Veteran’s acquired psychiatric disability for the period on appeal. 1. Entitlement to a disability rating in excess of 70 percent for an acquired psychiatric disability, characterized as PTSD The Veteran is seeking an increased disability rating for his service-connected acquired psychiatric disability. Specifically, the Veteran contends that he is entitled to a higher disability rating because the medical evidence shows that his PTSD is of great severity, compromising his ability to work, and that his PTSD symptoms cause him to experience “major impairment.” Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is proper to consider factors outside the specific rating criteria when appropriate to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s acquired psychiatric disability, characterized as PTSD, has been assigned a 70 percent rating under 38 C.F.R. § 4.130, DC 9411. In order to warrant the maximum 100 percent rating, the evidence must demonstrate total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. After a review of the evidence of record, the Board determines that a rating in excess of 70 percent is not warranted. Indeed, while the Veteran has occasional symptoms that could support a higher rating, the Veteran’s symptoms do not otherwise cause total occupational and social impairment. Specifically, in a July 2014 VA examination, the Veteran presented with symptoms of depression, anxiety, chronic sleep impairment, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. On examination, the July 2014 VA examiner reported that the Veteran was “alert and oriented,” his affect was “normal,” his attention was “normal,” and he was “not distracted.” The Veteran’s spontaneous speech was fluent and grammatic, and his immediate, recent, and remote memories were “within normal limits.” There was no evidence of suicidal ideations, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, or intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The July 2014 VA examiner opined that the Veteran’s symptoms caused occupational and social impairment with reduced reliability and productivity. In a May 2018 examination by the Veteran’s private psychiatrist, he presented with symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, an inability to establish and maintain effective relationships, obsessional rituals that interfere with routine activities, and neglect of personal appearance and hygiene. The Veteran’s affect was constricted. On examination, the Veteran’s private psychiatrist reported that the Veteran was cooperative, answered questions appropriately, was able to relate well, did not experience delusions, and that he described himself as forgetful and his memory as “not as good as it used to be.” There was no evidence of peristent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting himself or others. Indeed, the Veteran expressly denied any auditory, visual, or tactile hallucination, suicidal or homicidal thoughts, or self-injurious behavior. In view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 70 percent for the period on appeal. Although the clinical evidence reflects some evidence of memory loss and neglect of personal appearance or hygiene, VA must nevertheless engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 115-17. In this case, the Board determines that these symptoms alone are insufficient to warrant an increased rating given that the Veteran displayed normal thought processes without any signs of suicidal ideation, psychoses, hallucinations, or delusions, and did not display grossly inappropriate behavior, disorientation to time or place, a persistent danger of hurting himself or others. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disabilities, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). Thus, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as gross impairment of the thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, and disorientation to time or place. In this regard, it is clear that the Veteran’s acquired psychiatric disability has some impact on his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 70 percent is warranted. Although the Veteran reports that he does not go near large crowds, is hyperalert, and guarded, and his wife has reported that he isolates himself socially, he nevertheless reported a “good” relationship with his wife. Further, the June 2014 VA examination indicates that the Veteran reads challenging materials such as history and philosophy. Therefore, the Veteran did not display total social and occupational impairment even when factoring in other relevant criteria outside of the rating code. See Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his acquired psychiatric disability is worse than the rating he currently receives because it causes him major impairment. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s acquired psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. The medical findings of the July 2014 VA examiner and the Veteran’s private psychiatrist in May 2018 (as provided in the examination reports) directly address the criteria under which this disorder is evaluated. Specifically, while the Veteran has asserted that his PTSD symptoms cause him major impairment, the impact of the Veteran’s PTSD symptoms was discussed and addressed by the July 2014 VA examiner and his private psychiatrist, and the Board finds their assessments of greater probative weight. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of the Veteran’s symptoms related to his acquired psychiatric disability on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic code. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board’s analysis. Thus, the Veteran’s symptoms are not so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 2. Entitlement to TDIU The Veteran has asserted that he has been unable to work because of his service-connected PTSD. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As a threshold matter, the Board notes that the Veteran has met the schedular requirements for TDIU throughout the period on appeal. The Veteran’s service connected PTSD is rated at 70 percent (effective June 2005) and his sleep apnea secondary to PTSD is rated at 50 percent (effective February 2018), for a total combined rating of 90 percent. Given that the Veteran’s 70 percent PTSD rating was effective June 2005, he has had a single disability rated at least 60 percent during the entire period on appeal. Notwithstanding that the Veteran has met the schedular requirements for TDIU throughout the period on appeal, TDIU is not warranted because the Veteran’s service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. See 38 C.F.R. § 4.16(b). Here, the evidence indicates that the Veteran took early retirement when in 2009, and has not been employed since he retired. However, at both the April 2012 and July 2014 VA examinations, the Veteran principally attributed his decision to take early retirement to non-service-connected orthopedic problems. Thus, the Veteran’s own statements to the June 2012 and July 2014 VA examiners undermine his claim that his service-connected PTSD has prevented him from securing or following a substantially gainful occupation, instead showing that non-service-connected orthopedic ailments were the principal factor behind his decision to stop working. In addition to the Veteran’s own statements, the June 2012 and July 2014 VA examinations constitute probative evidence that the Veteran’s service-connected PTSD does not prevent him from securing or following a substantially gainful occupation. Based upon his examination of the Veteran, the June 2012 VA examiner opined that the Veteran exhibited occupational and social impairment with reduced reliability and productivity. The June 2012 VA examiner did not opine or otherwise find that the Veteran experienced impairment of short-term and long-term memory, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, or an inability to establish and maintain effective relationships. Additionally, the June 2012 VA examiner opined that the Veteran was capable of managing his financial affairs. The absence of such symptoms and his ability to manage his financial affairs weighs against a finding that the Veteran is incapable of securing or following a substantially gainful occupation. Most importantly, the June 2012 VA examiner opined that although the Veteran would be expected to have moderate impairment of occupational reliability and productivity in most typical-full time job settings, he was employable. Consistent with the June 2012 VA examiner, the July 2014 VA examiner opined that the Veteran exhibited occupational and social impairment with reduced reliability and productivity after examining the Veteran and reviewing his medical records. The July 2014 VA examiner did not report that the Veteran experience impairment of short-term and long-term memory, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, or gross impairment in thought processes or communication. Additionally, the July 2014 VA examiner opined that the Veteran was capable of managing his financial affairs. Again, the absence of such symptoms and his ability to manage his financial affairs weighs against a finding that the Veteran is incapable of securing or following a substantially gainful occupation. Based upon the foregoing, the July 2014 VA examiner opined that the Veteran’s PTSD does not render him unable to obtain or maintain substantially gainful employment. Given the thorough examinations conducted by the June 2012 and July 2014 VA examiners and their persuasive rationales, the June 2012 and July 2014 VA examinations the Board finds that they are probative evidence that weighs heavily against a finding that the Veteran is entitled to TDIU. The Board also notes that the Veteran has a high school education and worked as a custodian until 2009. Prior to and contemporaneously with his employment as a custodian, the Veteran has also worked as a dryer at a textile mill, a foreman, a laborer, and a material handler. Moreover, the Veteran reported that in 2009 he worked 50 hours per week as a custodian. Thus, based upon the Veteran’s ability to perform activities such activities, in conjunction with the opinions of the June 2012 and July 2014 VA examiners, the Board finds that the Veteran is able to secure or follow a substantially gainful occupation, including his previous occupations despite his service-connected PTSD. The Board acknowledges that in June 2014, the Veteran’s private physicians opined that the Veteran’s PTSD symptoms have caused “significant disturbances in all areas of his life,” interfered with his ability to attend to and process information that would enable him to learn new tasks, and that they would consider him to be “totally and permanently disabled.” However, the Board finds the July 2013 opinion of the Veteran’s private physicians to be of less probative value than the evidence described above for several reasons. First, despite the Veteran’s admission that he retired due to orthopedic ailments, not PTSD, the Veteran’s private physicians do not appear to account for this admission. Second, the Board finds that June 2012 and July 2014 VA examinations to be of greater weight because the VA examiners performed thorough examinations and accounted for the reasons for the Veteran’s retirement before rendering their opinions. Thus, the Board assigns more probative weight to the well-reasoned medical opinions from the VA examiners, which indicate that the Veteran’s service connected PTSD does not prevent him from securing or following a substantially gainful occupation. Moreover, the Board finds that the clinical evidence is sufficient for the Board to make its own conclusions. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). In this regard, the Board also notes that despite the Veteran’s contentions that June 2013 opinion of his private physicians demonstrates that the evidence is at least in equipoise, the most probative evidence, including his admission, the June 2012 VA examination, and the July 2014 VA examination, does not support a finding that he is entitled to TDIU. Finally, the Board notes that although the Veteran has also been granted service connection for sleep apnea secondary to PTSD, the Veteran makes no allegation, nor is there any evidence that the Veteran’s sleep apnea in any way prohibits the Veteran from securing or following a substantially gainful occupation. By virtue of the foregoing, the Veteran’s TDIU claim is denied. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel