Citation Nr: 18142014 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-26 318 DATE: October 12, 2018 ORDER The appeal of the issues of service connection for obstructive sleep apnea (OSA), cold injury residuals, right ear hearing loss, and an undiagnosed chronic multi-symptom illness (claimed as a gastrointestinal disorder/stomach hernia and/or skin disorder/lupus), and an increased evaluation of his service-connected left ear hearing loss disability is dismissed. An initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to July 3, 2017, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 28, 2017, is denied. FINDING OF FACT 1. In September and October 2018 correspondences, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran—through his authorized representative—that a withdrawal of his appeal for the issues of service connection for OSA, cold injury residuals, right ear hearing loss, and an undiagnosed chronic multi-symptom illness, and increased evaluation of his service-connected left ear hearing loss disability was requested. 2. Prior to July 3, 2017, the Veteran’s psychiatric disability has not resulted in gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or, memory loss for names of close relatives, own occupation, or own name, or any other symptom of like kind which results in total occupational and social impairment. 3. Prior to June 28, 2017, the Veteran’s service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issues of service connection for OSA, cold injury residuals, right ear hearing loss, and an undiagnosed chronic multi-symptom illness (claimed as a gastrointestinal disorder/stomach hernia and/or skin disorder/lupus), and increased evaluation of his service-connected left ear hearing loss disability by the Veteran through his authorized representative are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for an initial evaluation in excess of 70 percent for PTSD prior to July 3, 2017, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to TDIU prior to June 28, 2017, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1990 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014, September 2015, and September 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in November 2017, when the above issues were remanded for additional development. The OSA, cold injury residuals, bilateral hearing loss, and undiagnosed chronic multi-symptom illness claims have been returned to the Board at this time for further appellate review. The PTSD and TDIU issues were also remanded in the November 2017 Board decision. During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) awarded the Veteran a 100 percent evaluation for his PTSD, effective July 3, 2017, and awarded him TDIU beginning June 28, 2017, in an August 2018 rating decision. The Board has recharacterized those issues on appeal in order to comport with those awards of benefits. The November 2017 rating decision indicated that the PTSD and TDIU awards were full awards of benefits sought on appeal. However, such awards of benefits are not full awards of benefits in this case, as the Veteran’s increased evaluation claim for his PTSD is an initial evaluation claim, with an appeal period that begins on November 13, 2013. Likewise, his TDIU claim is intertwined with that increased evaluation claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, as the Board cannot find that the award of benefits in the August 2018 rating decision is a full award of benefits sought on appeal regarding the PTSD and TDIU issues, those issues remain on appeal and have not been withdrawn by the Veteran and/or his representative in the September and October 2018 correspondence. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board will therefore address those issues below. Withdrawal of Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran—through his authorized representative—has indicated in September and October 2018 correspondences that he desired to withdraw the appeal of the OSA, cold injury residuals, bilateral hearing loss, and undiagnosed chronic multi-symptom illness claims. Hence, there remain no allegations of errors of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review the appeal of those issues and they are dismissed. Increased Evaluation for PTSD Prior to July 3, 2017 Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran filed his claim for service connection for a psychiatric disability on November 13, 2013, and service connection for PTSD has been in place that date. As noted above, in the November 2017 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a 100 percent evaluation for his PTSD beginning July 3, 2017; prior to that date, the Veteran’s PTSD has been assigned a 70 percent evaluation. Those evaluations have been assigned under Diagnostic Code 9411. As the Veteran has been assigned the highest possible rating for the period beginning July 3, 2017, the Board will only address the period prior to July 3, 2017, in this decision. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 70 percent rating is warranted for 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 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); inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. A 100 percent rating is warranted for 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; 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. See Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that 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 others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The Veteran filed his claim on November 13, 2013. He underwent a VA psychiatric examination in February 2014, at which time he was diagnosed with PTSD which was manifested by the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to maintain effective relationships, obsessional rituals which interfere with routine activities, and impaired impulse control such as unprovoked irritability with periods of violence. The examiner indicated that his psychiatric disability resulted in social and occupational 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. The examiner noted that the Veteran was quite anxious, moved about, and was “jittery” during the examination. The Veteran reported working in the maintenance department of a local school district after working for 7 years for the sheriff’s department. The examiner finally concluded that the did not pose any threat of danger or injury to himself or others. The Veteran underwent another VA examination of his PTSD in October 2015, at which time the examiner noted that his psychiatric disability was manifested by the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work and worklike settings, inability to maintain effective relationships, suicidal ideations, obsessional rituals which interfere with routine activities, impaired impulse control such as unprovoked irritability with periods of violence, and persistent delusions or hallucinations. The examiner, however, found that those symptoms only resulted in occupational and social impairment with deficiencies in most areas. During the examination, the Veteran indicated he was treated with several medications for his psychiatric symptoms, and that he began employment in the maintenance department of a school district after discharge from service, where he was still employed. The examiner further indicated that the Veteran had a shift between observable anxiety and a flat affect. He had difficulty making eye contact, was emotionally labile, and at times was in tears; he appeared genuine in his expression of concern. The examiner noted that the Veteran’s condition appeared to have deteriorated since his February 2014 VA examination. The examiner finally concluded that the did not pose any threat of danger or injury to himself or others. In an April 2016 statement, the Veteran indicated that he “had all the symptoms for a 100 percent” evaluation. In a May 2016 statement, the Veteran indicated that his job was in jeopardy and that he did not associate with people at work. He further stated that his co-workers were “accusing [him] of terroristic acts,” and he had filed a discrimination lawsuit with the Equal Employment Opportunity Commission (EEOC) regarding these accusations. He stated that he could not continue to work because his depression had increased and he did not get any sleep because of nightmares. He indicated that he also was seen at VA on May 19, 2016, and that they took his clothes; he thought he was there for his sleep, but it “turned out they wanted to admit [him] for [his] mental condition.” He submitted evidence of the EEOC discrimination complaint with his statement. In a June 2016 letter, VA social worker, M.D., indicated that the Veteran had PTSD and major depressive disorder, which presented with symptoms of physical and emotional arousal at exposure to internal and external cues that symbolized or resembled an aspect of traumatic event, hyperarousal, sleep disturbance, and mood disturbance that likely interfered with his employment. Additionally, the Board has reviewed the other VA, Vet Center, and Social Security Administration (SSA) records associated with the claims file and relevant to the period prior to July 3, 2017 in this case. Generally, those records demonstrate substantially similar symptomatology to that noted above in the VA examinations. The Board does note, however, that throughout those records, particularly the VA treatment records prior to and subsequent to October 2015, do not demonstrate any evidence of hallucinations or delusions. Finally, VA treatment records indicate that the Veteran was hospitalized for suicidal ideations in connection with his psychiatric disability on July 3, 2017. The Veteran underwent a July 2017 VA examination, and in a May 2018 addendum opinion, that VA examiner opined that the Veteran had total occupational and social impairment beginning on July 3, 2017, the date of his hospitalization. Based on the foregoing evidence, the Board finds that a 100 percent evaluation is not warranted prior to July 3, 2017. Although the Board acknowledges that the VA examiner checked the box in the October 2015 VA examination report noting persistent delusions and hallucinations, the examiner did not otherwise discuss hallucinations or delusions or provide any evidence to substantiate that finding. In contrast, the other evidence of record, namely the Veteran’s VA treatment records, do not demonstrate any evidence of hallucinations or delusions at any time during the appeal period; in fact, all the VA doctors who treated the Veteran’s psychiatric disability routinely noted that he did not have any hallucinations or delusions. Thus, while the Board acknowledges that finding by the October 2015 VA examiner, the Board does not find that finding to be particularly probative in this case, given the lack of any discussion of such by that examiner and the other evidence of record demonstrating that he did not have any hallucinations or delusions throughout the appeal period. In short, the probative value of the October 2015 VA examiner’s finding regarding hallucinations and delusions is outweighed by the other evidence of record. Thus, the evidence prior to July 3, 2017, demonstrates that at no time during that period did the Veteran’s psychiatric disability result in gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or, memory loss for names of close relatives, own occupation, or own name. Likewise, although the Board acknowledges the Veteran’s statements that he met all the criteria for a 100 percent evaluation, he is not competent to render such a medical opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Instead, the October 2015 VA examiner assessed the Veteran’s social and occupational impairment as deficient in most areas. Additionally, the July 2017 VA examiner additionally contemplated the date on which total occupational and social impairment occurred, and after review of the claims file and the evidence of record, found that he was totally occupationally and socially impaired until July 3, 2017, the date on which he was admitted as an in-patient for his psychiatric disability. The Board finds these opinions to be the most probative evidence of record. In conclusion, the Veteran’s psychiatric disability is not shown to result in gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or, memory loss for names of close relatives, own occupation, or own name, or any symptom of like kind, which results in total occupational and social impairment, throughout the appeal period prior to July 3, 2017. Accordingly, an initial evaluation in excess of 70 percent for PTSD for the period prior to July 3, 2017, must be denied based on the evidence of record at this time. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Entitlement to TDIU Prior to June 28, 2017 VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). There are two regulatory subsections that allow for a TDIU. The first, called a “schedular TDIU,” is found at 38 C.F.R. § 4.16(a) and requires that certain disability rating percentages be in place. Either the Board or the AOJ can grant a schedular TDIU in the first instance. The second, called an “extraschedular TDIU,” is found at 38 C.F.R. § 4.16(b). It does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance, it must be submitted to VA’s Director, Compensation Service in the first instance. 38 C.F.R. § 4.16(b). The schedular TDIU subsection provides that a total disability rating 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. If there is only such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. Id. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. As an initial matter, for the period prior to June 28, 2017, the schedular percentage criteria laid out in 38 C.F.R. § 4.16(a) are met. The Board reflects that the TDIU has already been awarded by the AOJ beginning June 28, 2017, as noted in the November 2017 rating decision; the AOJ awarded TDIU on that date as that was the date following the Veteran’s last date of employment noted by his employer in the July 2017 Request for Employment Information in Connection with Claim for Disability Benefits, VA Form 21-4192. The Veteran’s last employer indicated that he last worked June 27, 2017, that they had been accommodating him by allowing a schedule change, and that he was making more than the poverty threshold for one person. The Veteran was noted to have been a full-time employee, working 8 hours a day and 40 hours a week. In this case, although the Veteran is shown to have interference with employment due to his service-connected disabilities, particularly his PTSD as noted above, the evidence in this case clearly demonstrates that the Veteran was employable throughout the period prior to June 28, 2017, as he was employed in a full-time position in non-marginal employment. Finally, the Veteran has not argued, nor does the evidence demonstrate that he worked in a protected environment; he did not work for a family business in this case. Moreover, although his employer allowed him to change his schedule to accommodate him, such accommodations cannot be found in this case to be a sheltered workshop. In short, the evidence does not demonstrate that the Veteran was precluded from obtaining and maintaining substantially gainful employment prior to June 28, 2017. Accordingly, entitlement to TDIU prior to June 28, 2017, must be denied in this case based on the evidence of record at this time. See 38 C.F.R. § 4.16. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel