Citation Nr: 18145369 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 12-20 831A DATE: October 26, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has not had a current PTSD disability throughout the appeal period. 2. The Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1973 to February 1975 in the United States Army, and from January to October 1977 in the United States Navy. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2017. This case was last before the Board in December 2017, at which time it remanded the above issues. Although the Agency of Original Jurisdiction (AOJ) uploaded the Social Security Administration (SSA) records as directed, the AOJ only readjudicated the TDIU claim in the June 2018 supplemental statement of the case. However, as will be addressed below, the SSA records are either redundant records related to VA treatment records that have already been associated with the claims file previously or are otherwise not pertinent to PTSD issue. Accordingly, as these records are either not new evidence or are otherwise not relevant to the PTSD claim, the Board finds that a readjudication of that issue is not required in this case. The Board will therefore proceed with adjudication of both the PTSD and TDIU issues at this time. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Service Connection for PTSD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To be entitled to service connection for PTSD, as opposed to another mental health disorder, the record must include (1) medical evidence establishing a diagnosis of the condition under the Diagnostic and Statistical Manual 5 (DSM-V) in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Turning to the evidence of record, the Board reflects that throughout the appeal period, the Veteran has indicated several stressors that occurred during military service. Specifically, the Veteran indicated that his stressors during military service stemmed from his time as a correctional officer. He indicated that he had to watch a prisoner on suicide watch who would scald himself with hot water repeatedly. He also indicated that he was told that prisoners had urinated in the guards’ Kool-aid and put soap in the guards’ coffee; he stated that he was not able to eat anything he did not cook himself after that. He also indicated that he witnessed prisoners at night praying and screaming, do sexual things, play with, smell or make messes with their own waste, and “go a bit crazy”; he described it as a “mad-house.” He stated that he was not able to discuss it with anyone, and when he told his supervisor he was told to “suck it up and shut up.” He indicated that due to the stress of service, he began drinking and abusing drugs during service. The Veteran additionally indicated that he felt distrust due to being misled by his superiors during both his periods of Army and Naval service; he also began to have isolative behaviors and nightmares about his Army period of service during his period of Naval service. Post-service, the Veteran’s initial psychiatric evaluation at VA was in October 2009, at which time he indicated several of the same stressors as noted above from his time as a prison guard during service. After examination, he was diagnosed with dysthymic disorder, PTSD, and alcohol dependence in full remission. The examiner noted at that time that the diagnosis of PTSD was based on the Veteran’s presentation of nightmares related to “military trauma” during his time as a prison guard, and also based on his score on the PCL-M assessment. The balance of his VA treatment records show continued treatment for his psychiatric disability; the diagnosis of PTSD is carried through those records The Board finally notes that a May 2015 VA psychiatric consultation noted that the Veteran met the criteria for the diagnosis of PTSD under the DSM-V, although that examiner did not explain her conclusions with respect why those criteria were met, particularly Criterion A requiring exposure to actual or threatened death, serious injury, or sexual violence; in other words, the examiner did not explain how the Veteran’s claimed stressor related to “actual or threatened death, serious injury, or sexual violence.” The Veteran underwent a VA psychiatric examination in May 2016, in which the examiner noted that he was evaluated using the DSM-V. During that examination, the Veteran reported stressors during service as a correctional officer that were substantially similar in kind and content to those noted above. Based on review of the claims file and examination of the Veteran, and based on the stressors reported therein, the examiner found that the Veteran met the criteria for a diagnosis under the DSM-V for other specified trauma and stressor related disorder and alcohol use disorder in early remission. The examiner specifically noted that the Veteran’s stressors do not fit [the] PTSD criteria but Vet[eran] reports PTSD-like symptoms. Consequently the above d[iagnosis] is noted. Based on Vet[eran]’s history and presentation, his disorder is at least as likely as not related to stressors he had in the military. These stressors are non-combat stressors and did not involve fear of hostile military or terrorist activity. Finally, SSA records associated with the claims file are duplicates with regard to the Veteran’s VA treatment records insofar as those records contain any VA treatment records. Likewise, the SSA records generally pertain to the Veteran’s claim for unemployability related to his nonservice-connected orthopedic disorders, particularly his lumbar spine disorder. The Board reflects that the SSA records do not indicate any diagnoses of PTSD in any non-VA records. Based on the foregoing evidence, the Board finds that the May 2016 VA examiner’s opinion is the most probative opinion related to whether the Veteran has a diagnosis of PTSD under the DSM-V. Initially, the Board notes that although the Veteran is competent to state the symptoms he experiences, he does not have the requisite medical knowledge and experience to render a psychiatric diagnosis 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). The Board reflects that the October 2009 diagnosis of PTSD is based on the DSM-IV criteria and in any event, that examiner did not explain the rationale for concluding that all the criteria had been met. Furthermore, the February 2015 diagnosis, while based on the DSM-V criteria, is not adequately explained by that examiner, particularly as it relates to how the Veteran’s claimed stressors—which the Board notes are indeed quite stressful in nature—meet Criterion A. Moreover, that examiner did not engage in any discussion related to whether a diagnosis of other specified trauma and stressor related disorder would have been the more appropriate diagnosis for the Veteran’s psychiatric disorder as the May 2016 VA examiner did. In short, the Board finds that the May 2016 VA examiner’s review and discussion as to the appropriate psychiatric diagnosis and his conclusion that the Veteran met the criteria for other specified trauma and stressor related disorder rather than a diagnosis of PTSD under the DSM-V to be the most thorough and probative evidence of record with respect to the Veteran’s current psychiatric disability during the appeal period. Accordingly, the Board must conclude that the Veteran does not have a current PTSD disability under the DSM-V as required in this case. His claim of service connection must therefore be denied based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303, 3.304; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). Entitlement to TDIU 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. 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, service connection has already been established for a psychiatric disability, rated as 50 percent disabling since September 9, 2009; tinnitus, rated as 10 percent disabling since September 9, 2009; and, bilateral hearing loss, rated as noncompensable since September 9, 2009. The Veteran’s total combined disability evaluation for the appeal period is shown to be 60 percent disabling. Consequently, the Veteran does not meet the criteria laid out in 38 C.F.R. § 4.16(a). Nevertheless, the Board has considered whether to refer this case to the Director of Compensation for an appropriate opinion, as required under 38 C.F.R. § 4.16(b). The Board, however, finds that such is not necessary, as the Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment at any time during the appeal period. In his November 2009 Application for TDIU, VA Form 21-8940, the Veteran indicated that he completed three years of high school education. He further indicated that he worked as a prison guard during service and that he worked as a telemarketer in sales. He indicated that he worked until January 2009, at which time he was unable to work due to his diabetes and PTSD. In his June 2010 Application for TDIU, VA Form 21-8940, the Veteran indicated that he finished two years of high school, although he earned his General Education Degree (GED). He further indicated that he worked most recently from May 2008 through January 2009 in sales. He indicated that he left that job due to his alcohol abuse and depression, noting that he was angry and depressed over wages and dealing with certain people every day. He left because he did not know who to trust and felt taken advantage of. He indicated that he was offered a job in June 2010, however. In a June 2010 statement, the Veteran’s spouse indicated that the Veteran had numerous jobs before they were married and that before he was put on psychiatric medications he did not hold a job for very long. However, on medications, she noted that he “works better with others and tries to trust those in authority at work.” She did note, however, that he had held 24 jobs in the 12 years they had been together. In a September 2010 VA Form 21-4192, the Veteran’s second to last employer indicated that he worked for that company from April to July 2008 in sales; that company indicated that he left the company because he found another job. A second September 2010 VA Form 21-4192 from the Veteran’s most recent employer indicates that the Veteran worked fulltime for that company in sales from May 2008 through January 2009. The company indicated that the Veteran was laid off in January 2009 due to business decline. The Board has also reviewed the SSA records associated with the claims file. Generally, those records do not relate to any employment problems related to his audiological and psychiatric disabilities. Rather, those records focus on several nonservice-connected orthopedic conditions, including knee and lumbar spine disorders, as well as other conditions that he has claimed as—but VA has denied as—service connected. It is unclear whether SSA ever found the Veteran unable to work, as there is no decision from SSA contained in the documents obtained from that agency. In his December 2010 notice of disagreement, the Veteran stated that he was unemployable because his service experiences resulted in his “distrust, PTSD, etc., alcohol abuse to hide the pain and dreams, difficulty hearing, my foot pain and other symptoms accompanying my diabetes, sleep apnea, along with [his] lung function compromised by asbestos/dust working on [the] deck [during service], holding jobs has been a nightmare.” He indicated that the job he was offered in June 2010 lasted until October 2010. The Veteran made similar statements in his other correspondences throughout the appeal period. The Veteran testified in his February 2017 hearing that his psychiatric symptoms affected his ability to hold a job for longer than 6 months, particularly due to his “anger, depression, and so many other things.” The Veteran denied having any issues with obtaining and maintaining employment related to his hearing loss and tinnitus during the hearing. The Veteran’s last VA audiological examination was in September 2010, at which time the examiner indicated that the Veteran was not employed; it was noted that the Veteran had a hearing difficulty that would impact his occupational functioning, although there was no effect on his usual daily activities. Other VA records demonstrate that the Veteran’s hearing difficulty was improved with issuance of hearing aids. Finally, the May 2016 VA psychiatric examiner indicated that the Veteran’s psychiatric disability manifested the following symptomatology: depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work-like setting. The examiner found that the Veteran had occupational and social 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. After examination, the examiner further noted that the Veteran tended to maximize how his mental health issues had impacted his life in a negative manner and noted that he had not worked for many years. The examiner, however, concluded that the Veteran appeared capable of working and would likely do best with something that involved specific tasks at home or in an area that did not involve lots of other people and would allow him frequent breaks as needed. Based on the foregoing evidence, the Board finds that the Veteran’s service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. The Board reflects that the Veteran’s audiological disabilities—his hearing loss and tinnitus—do not have any impact on his ability to obtain and maintain employment; in fact, the Veteran specifically denied such having any effect on his employability during his February 2017 hearing. Thus, the Board is left with solely addressing whether the Veteran’s psychiatric disability precludes employment. Although the Board acknowledges the Veteran’s statements that he has problems maintaining employment for long periods due to his psychiatric symptoms, he does not appear to have been recently fired or otherwise released from his jobs due to his psychiatric symptoms during the appeal period. He left the second most recent job he had in 2008 in order to take the most recent job he had. The Veteran was noted to have been laid off due to a decline in the business of the company in January 2009, not related to the Veteran’s psychiatric symptoms or any other behavior, attendance, or performance issues. Thus, insofar as the Veteran stated that he left that job in January 2009 due to his psychiatric symptoms and inability to work with people, the Board finds those statements to be not credible; the Board finds the employer’s statements that he was laid off due to lack of business to be the most probative evidence. This is further bolstered by the Veteran’s clear ability to get another job in June 2010, even if he left that job in October 2010. The Board notes that the Veteran has not submitted any information related to that job and the reasons that “job ended” in October 2010; the Board finds it significant that the Veteran indicated that the job “ended” in October 2010, rather than stating that he was fired or was otherwise forced to leave his job as a result of his psychiatric symptoms. Finally, although the Veteran has indicated that he cannot work due to his psychiatric problems, the Board notes that the Veteran’s spouse indicated that his ability to work had improved since he began taking psychiatric medication. Of most probative value, however, is the May 2016 VA examiner’s findings that the Veteran was only impaired with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, and that the Veteran was “capable of working and would likely do best with something that involved specific tasks at home or in an area that did not involve lots of other people and would allow him frequent breaks as needed.” The Board finds the probative value of the May 2016 examiner’s findings to vastly outweigh the Veteran’s statements that he is unable to work in this case. In short, the evidence does not demonstrate that the Veteran was precluded from obtaining and maintaining substantially gainful employment as a result of his service-connected disabilities at any time throughout the appeal period. Accordingly, entitlement to TDIU must be denied in this case based on the evidence of record at this time. See 38 C.F.R. § 4.16. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel