Citation Nr: 18144548 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-19 082 DATE: October 24, 2018 ORDER The claim for entitlement to service connection for a left knee disability is dismissed. The claim for entitlement to service connection for bilateral hearing loss is dismissed. The claim for entitlement to service connection for tinnitus is dismissed. The claim for entitlement to service connection for a breathing disorder is dismissed. The claim for entitlement to service connection for a thyroid disability is dismissed. An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to promulgation of a decision in the appeal, the Veteran indicated in his July 2018 hearing that he would like to withdraw his appeal regarding entitlement to service connection for a left knee disability. 2. Prior to promulgation of a decision in the appeal, the Veteran indicated in his July 2018 hearing that he would like to withdraw his appeal regarding entitlement to service connection for bilateral hearing loss. 3. Prior to promulgation of a decision in the appeal, the Veteran indicated in his July 2018 hearing that he would like to withdraw his appeal regarding entitlement to service connection for tinnitus. 4. Prior to promulgation of a decision in the appeal, the Veteran indicated in his July 2018 hearing that he would like to withdraw his appeal regarding entitlement to service connection for a breathing disorder. 5. Prior to promulgation of a decision in the appeal, the Veteran indicated in his July 2018 hearing that he would like to withdraw his appeal regarding entitlement to service connection for a thyroid disability. 6. The Veteran’s PTSD is not manifested by occupational and social impairment with deficiencies in most areas. 7. The Veteran’s service connected disabilities do not render him unemployable. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the issue of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the issue of entitlement to service connection for a breathing disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the issue of entitlement to service connection for a thyroid disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 6. The criteria for entitlement to an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9411. 7. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1963 to March 1967. The Veteran had a hearing before the undersigned Veterans Law Judge in July 2018. Withdrawn Claims The veteran or the veteran’s representative may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204(b)(1). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204(b)(3). Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.204(c).  At his July 2018 hearing, the Veteran’s representative indicated the Veteran’s desire to withdraw his appeal regarding his claims for service connection for a left knee disability, bilateral hearing loss, tinnitus, a breathing disorder, and a thyroid disability. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. PTSD Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson, 12 Vet. App. 119 (1999). The Veteran’s mental health disability is currently rated under DC 9411. Under DC 9411, a 50 percent evaluation for PTSD requires 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; and, difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is prescribed when there is evidence of 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); and inability to establish and maintain effective relationships. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran is currently rated as 50 percent disabling for his PTSD. A February 2016 letter from one of the Veteran’s counselors stated his symptoms included hypervigilance, avoidance, difficulty sleeping, and survivor’s guilt. The Veteran’s experiences affected his ability to function and created nightmares and memories of his combat experience. A June 2015 letter from a counselor stated although the Veteran continued to seek treatment for his mental health, he still experienced symptoms including dissociative events on a weekly basis, hypervigilance, and living behind a locked fence. The Veteran had to leave his last job because he could not adapt to the work setting where he constantly tried to avoid interactions with customers. The Veteran had been unsuccessful in maintaining long interpersonal relationships and had been told by friends and family that he came off as cold and unfeeling. The Veteran also struggled with confusion, feeling overwhelmed, and survivor’s guilt. A July 2015 letter from a mental health provider said the Veteran suffered from nightmares, flashbacks, intrusive thoughts, hypervigilance, heightened startle reflex, and increased irritability. The Veteran also suffered from symptoms of avoidant behaviors, and struggled when he heard helicopters flying overhead. The Veteran had an examination for his PTSD in September 2013. The examiner noted the Veteran’s diagnosed PTSD with occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran suffered from symptoms such as depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The examiner also noted the Veteran suffered from intrusive thoughts, survivor’s guilt, anxiety, irritability, avoidance, feelings of detachment, decreased motivation, difficulty concentrating, hypervigilance, and poor sleep. The Veteran has been seen throughout the years for his PTSD. In July 2012, the Veteran noted he had not been feeling down, depressed, or hopeless. The Veteran also said in the past month, he had not had nightmares, avoidant thoughts, or an overactive startle response. A July 2012 medical letter said the Veteran experienced anxiety, avoidance, difficulty sleeping, hypervigilance, and emotional numbing. In June 2012, the Veteran reported he had anxiety and depression but no suicidal or homicidal ideations. In March 2012, the Veteran stated he had felt down sometimes but denied suicidal or homicidal ideations. At a June 2010 doctor’s visit, the Veteran stated he had not thoughts of Vietnam for years, but it had come back. The Veteran reported he was not triggered by images, locations, or people and did not have avoidance and was not easily startled. The Veteran reported he was happy with his children, grandchildren, and friends. The veteran reported he didn’t like closed quarters or loud crowds. The examiner noted the Veteran did not appear to have depression, did not have a history of suicidal or homicidal ideations, hallucinations, or hopelessness. The examiner did note the Veteran had insomnia. Multiple statements have been submitted by the Veteran’s friends and family. A friend submitted a statement in February 2016. The friend knew the Veteran from a veterans’ group. The friend said he could hear the pain in the Veteran’s voice as he recounted his story and had observed the Veteran’s hypervigilance. In July 2012, the Veteran’s sister wrote a letter on behalf of her brother. She noted the Veteran was depressed and avoidant when he returned from service. The Veteran also would get angry and sad. A July 2012 letter also stated the Veteran had become difficult to live with. Additionally, the Veteran’s brother wrote a letter in July 2012. He was a young boy when the Veteran went to Vietnam and remembered when the Veteran returned home, he was different, quiet, distant, and angry. In July 2012, the Veteran’s daughter submitted a statement. When living with the Veteran, she said she observed him being irritable and wanting to be alone. The Veteran’s daughter also noted the Veteran’s mood swings. The Veteran’s daughter also noted the Veteran walking around early in the morning and having trouble sleeping. The Veteran was also very reluctant to talk about his time in service. The Veteran’s daughter also noticed the windows and doors were always closed. The Veteran himself submitted a statement in July 2012. The Veteran stated he still had nightmares and flashbacks of his fellow service members getting killed and wounded. The Veteran also stated he felt like he cheated death. The Veteran reported he was always looking over his shoulder, couldn’t trust anyone, isolated himself, had nightlights in every room, and would walk the perimeter of his house every night. The Veteran testified at a July 2018 hearing. He reported he was having panic attacks three to four times a week, didn’t want anyone around him, and would often get mad at himself for no reason. The Veteran reported he built a security gate about three and a half years ago and was still seeking professional help. The Veteran said all his personal relationships were terrible and that he couldn’t feel the emotions the other people need. The Veteran has children and grandchildren but didn’t see them often. The Veteran said he knew his family loved him but he would rather be by himself because he didn’t want anyone to get close to him. The Veteran remembers what happened to his friends in Vietnam and he didn’t want that to happen to anyone else. The Veteran last had an examination for his PTSD in 2013. Since then, the Veteran reported his psychiatric medication has doubled. He takes medication for anxiety, nightmares, flashbacks, trouble sleeping. The Veteran described a bad day with his PTSD was beating his fists through the wall, wanting to pull his hair out and destroy things. The Veteran used to love riding his motorcycle but now doesn’t. Regarding his occupational impairment, the Veteran reported he worked as a carpenter for almost 30 years prior to working at a storage facility. The Veteran made a good living as a carpenter because he didn’t have to deal with the public. The Veteran said this job would now be a problem with his PTSD because he would not be able to concentrate anymore dealing with power tools. The Veteran is not working. The Veteran has said this is because it is so stressful to deal with the public. Previously at the storage facility, the Veteran’s main job was doing maintenance and then changed to him dealing with the public. The Veteran said one of the facilities was right by an airport where he would hear airplanes and helicopters and smell diesel fuel. Regarding the Veteran’s social impairment, as discussed above, the Veteran does not have many friends, does not see his family often, and prefers to be alone. Additionally, the evidence shows the Veteran does not like to deal with the public and has had difficulty maintaining interpersonal relationships. The Board finds a higher, 70 percent rating, is not warranted. Neither the medical evidence or the lay evidence of record shows the Veteran suffers from symptoms productive of occupational and social impairment with deficiencies in most areas. While the Veteran reported not working due to his inability dealing with the public, there is no evidence of record suggesting the Veteran’s PTSD would make him unable to work in a quiet, more isolated work setting. Additionally, while the evidence shows the Veteran struggles with isolation, anger, insomnia, flashbacks, nightmares, and maintaining relations with friends and family, the evidence does not show the Veteran suffers from symptoms such as suicidal ideations, obsessional rituals, intermittently illogical speech, near-continuous panic attacks, impaired impulse control, spatial disorientation, or neglect of hygiene. The many statements cited above wound support the finding that the Veteran has many problems with his PTSD, but this is the basis of the current 50% evaluation. The Board has carefully considered whether a new examination is warranted based on the medical evidence, the Veteran’s statements, and the statements submitted by his friends and family. However, as discussed above, at his recent hearing, the Veteran did not describe having symptoms that would warrant a higher rating or would warrant a new examination. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board turns now to the Veteran’s claim for a TDIU. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016). In reaching such a determination, 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a) (2016). The Veteran’s total combined disability rating is 60 percent disabling with his PTSD rated as 50 percent disabling. As such, the Veteran does not meet the schedular requirement for TDIU under 38 C.F.R. § 4.16(a). Therefore, a TDIU is denied. Regarding all the above, the Board acknowledges the Veteran’s, his friends’, fellow service members’, and family’s statements that the Veteran’s mental health causes him problems, including trouble sleeping, anger issues, depression, anxiety, and irritability. Clearly, during this time-frame, the condition was getting worse. The Board also acknowledges the Veteran believes his symptoms to be worse than evidenced by his current disability ratings. The Board also recognizes the Veteran believes he is unemployable due to his service connected conditions, including his PTSD. However, while the Veteran is competent to report his symptoms, he is not competent to opine on matters requiring medical knowledge, such as determining the extent and severity of his mental health diagnosis. The medical evidence does not support a higher rating. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran’s PTSD clearly does bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. If his mental health did not cause him problems, there would be no basis for compensable rating, the only question is the degree. It is important for the Veteran to understand that the medical findings pertaining to his mental health and his employability status provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his mental health is worse than his current rating and that he is unemployable due to his service connected disabilities, providing a highly clear basis for the opinion. The Veteran had a long, productive work history (clearly with limitations, as he himself has noted, that he was able to adapt to) until his retirement. His employment history, given the problems he faced with his PTSD over many years, is highly impressive (he clearly adapted to the problems he was having over many decades). Unfortunately, we can not use the Veteran’s age as a basis to find he can not find work as a basis for a TDIU finding. (Continued on the next page)   Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel