Citation Nr: 18146792
Decision Date: 11/01/18	Archive Date: 11/01/18

DOCKET NO. 14-31 640A
DATE:	November 1, 2018
ORDER
The issue of entitlement to service connection for post-traumatic stress disorder (PTSD) is dismissed.
Entitlement to an initial rating in excess of 70 percent for an anxiety disorder, to include insomnia (claimed as sleep disorder and lack of concentration), is denied.
Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.
FINDINGS OF FACT
1. On December 7, 2017, prior to the promulgation of a decision on the appeal, on the record at the Board hearing, the Veteran withdrew his appeal of the issue of entitlement to service connection for PTSD, and raised the issue of entitlement to a TDIU, to be decided in addition to his existing claim for an increased rating for an anxiety disorder.
2. Throughout the appeal, the probative evidence of record shows that the Veteran’s service-connected psychiatric disability manifested in no worse than occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment.
3.  Throughout the appeal, the probative evidence of record demonstrates that the Veteran has not been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for PTSD have been met. 38 C.F.R. § 20.204 (2017).
2. The criteria for entitlement to an initial rating in excess of 70 percent for an anxiety disorder, to include insomnia, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9499-9440.
3. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served in the Army from October 1979 to March 1995.
These matters are before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.
The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in December 2017. A transcript of the hearing is associated with the record. 
The Veteran most recently requested a motion for a 30-day extension of time which was granted by the VLJ on July 12, 2018. As more than 30 days have passed and the Board has received no additional documentation from the Veteran, the Board may proceed with appellate review. 
1. Withdrawal of appeal.
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 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his representative, withdrew his claim for service-connected PTSD at his December 2017 Board hearing and raised the issue of entitlement to a TDIU, to be decided in addition to his existing claim for an increased rating for an anxiety disorder. Thus, the Board finds that the Veteran has successfully withdrawn his entitlement to service connection for PTSD.
2. Entitlement to an initial rating in excess of 70 percent for an anxiety disorder, to include insomnia (claimed as sleep disorder and lack of concentration), is denied.
As an initial matter, the RO attempted to provide the Veteran with a VA examination to obtain needed medical evidence as to the severity of his disability. The record indicates that the Veteran did not respond to compensation and pension examination scheduling requests including telephone contact attempted on February 6, 2018 and February 15, 2018 with messages left for the Veteran. The examination requests were canceled on February 26, 2018 after the Veteran, without good cause, failed to show or respond. Therefore, the Board must adjudicate the severity of his anxiety based on the evidence of record. See 38 C.F.R. § 3.655.
Psychiatric disorders, such as anxiety disorder, are rated pursuant to the criteria under 38 C.F.R. § 4.130, Diagnostic Code 9499-9440. See General Rating Formula for Rating Mental Disorders (General Rating Formula). Relevant to the issue on appeal, under the General Rating Formula, a 70 percent rating is assigned where there is objective evidence demonstrating 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 the inability to establish and maintain effective relationships. 
The next higher and maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as 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 and place; memory loss for names of close relatives, own occupation, or own name. 
Symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Id. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Id. 
The Veteran is currently in receipt of a 70 percent disability rating for his PTSD from July 5, 2005, starting from the date that service connection was effectuated, to the present. A disability rating in excess of 70 percent is not warranted because the evidence does not demonstrate that the Veteran is totally occupationally and socially impaired. 
Turning to the relevant evidence of record, in July 2005 at his first psychiatric consultation, the Veteran reported that since moving cross-country to be with a girlfriend, he had only intermittently been able to find work, and not at all as a Foreman, the level that he had previously worked at, because he had not “been able to break into the heavily union-controlled jobs here.” It was noted that while the Veteran spoke of situational anxiety, he stated that it was, “completely atypical for him, and that usually he is quite calm, especially when he was in the military or working steadily.” Further, the Veteran was reportedly calm, cooperative, had intact intention and memory, and denied perceptual abnormalities. 
In December 2007, the Veteran complained of persistent insomnia and nightmares which made “studies harder at the junior college he attends.” He also stated that “he has been doing ok[ay] in terms of depression”.
In February 2010, the Veteran’s wife submitted a lay statement asserting that he suffers from depression, panic attack attacks, and anxiety and does not sleep well. She also asserted that the Veteran’s psychiatric issues had “affected our relationship in the worst way.”
In May 2010, the Veteran reported he had been experiencing a depressed mood and anxiety for an uncertain duration. He further asserted that “he has felt blue most days, with poor appetite and some weight loss, relative anhedonic, and occasional tearfulness. He feels more distract[ed], with short attention lately.” It was noted further that he was “friendly, cooperative, mildly anxious. Speech slightly pressured. Affect full and appropriate; briefly tearful. Fully oriented and alert. No thought disorder. Neatly groomed. No suicidal or aggressive ideas or impulses.” It was also noted that in addition to crediting his depression and anxiety to service-connected events, the Veteran also attributed his psychiatric issues to financial stress and recent conflicts with his wife. 
In July of 2010, he was comparatively better, and his prescribed medications were helping. The Veteran “noticed that he has improved somewhat since switching to paroxetine; less anxious; tearful only rarely, and with provocation.”
After a hiatus from treatment, in April of 2011, the Veteran reported that “sometimes he feels irritable, and stays to himself; he has sometimes become so angry that he has hit trees, but does not consider suicide.”
In May of 2011, the Veteran reported that, while still depressed, he had “resumed playing the guitar” and was “sleeping well”. He also reported that he felt pride and responsibility regarding his volunteer work at a soup kitchen. The Veteran was noted as having adequate grooming, being alert, and having a neutral mood and full effect that included laughter. 
In April of 2012, a VA examiner recorded that the Veteran “reported not being close to his children, and is not in contact with them currently. He reported being close to his sister, in fact he lives in the same house and sees her on a daily basis. He is close to another sister and sees her weekly. He is not close to 2 of his other sisters. He has 3 neighborhood friends. He reported not socializing.” 
In April of 2015, the Veteran described a singular incident from March 2015 when he was hospitalized with hallucinations after not sleeping for days and exceeding the dosage on over-the-counter medication. The VA examiner reported that his affect level was dysphoric, “but he was able to laugh and smile some, especially when describing the weird hallucinations he’d had that day in March (‘although at the time I wasn’t laughing. I was upset at all these people who had gotten into my home’). The [patient] spoke fluently and in a normal tone of voice. Except for the March day, he denied psychotic symptoms and denied any manic symptoms. He also denied ever experiencing any [suicidal or homicidal inclinations].”
In June of 2017, it was reported that the Veteran “he has good eye contact but does not reciprocate emotionally. Speech is spontaneous. Affect is constricted and mood is dysphoric. Thought process is coherent. There is no delusional thinking and patient denies having perceptual problems but thinking is ruminative and he is preoccupied with pain.” Additionally, the he was described as being “alert, oriented, cognition is globally intact. There is no suicidal and/or homicidal ideation. He has some insight, his impulse control and judgment is fine.”
At the December 2017 Board hearing, the Veteran reported having panic attacks, that he is anxious much of the time, and that he continues to have difficulties sleeping. Due to his lack of sleep, he stated that his concentration is affected and that he “wouldn’t want to operate no vehicle or operate any kind of dangerous equipment” though he stated that he “can read a technical menu that’s got short instructions on there”.  
In July of 2018, the Veteran submitted, through his representative, medical records from a private treatment provider, Dr. J.R. Dr. R. observed that the Veteran was “oriented to person, place and time” and that “there is no evidence of formal thought disorder, hallucinations, delusions”. Dr. R. also determined that “despite his emotional state, he is sufficiently competent to manage his own funds.”
After considering the evidence of record under the laws and regulations set forth above, the Board finds that, throughout the relevant rating period, the Veteran’s service-connected acquired psychiatric disability manifestations were, at worst, no more severe than productive of functional impairment comparable to occupational and social impairment deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.
The Board assigns significant probative value to the medical evidence and clinical findings in the record, which noted the Veteran’s specific reported symptoms. These symptoms include the Veteran’s reported sleep disruptions which led to insomnia, depression and being generally anhedonic. As explained in detail above, the clinical findings, including the Veteran’s reported symptoms, suggest occupational and social impairment in the areas of thinking and mood, which is most consistent with a disability rating of no greater than 70 percent.
Overall, he has been able to interact appropriately with treatment providers, VA examiners, and others. He has maintained good relationships with two of his sisters, including the one he lives with, and his neighbors. He has reported being able to volunteer at a soup kitchen and the hobby of playing the guitar. Throughout the medical record, the Veteran is noted as having a rational thought process and at all times he has been appropriate in his appearance. The Veteran has had only one isolated hallucination and has not reported any persistent delusions or hallucinations. There is no indication that the Veteran has ever been disoriented to time or place, nor that he has ever experienced memory loss for names of close relatives, his own occupation, or his own name.
The Board acknowledges that the Veteran reported at his December 2017 hearing that he had not brushed his teeth or shaved in several days, which is an example of the inability to maintain personal hygiene symptom provided in the criteria for a 100 percent rating. However, the Board reiterates that the Veteran has presented with adequate dress and hygiene at all times. Given all the other symptoms that are consistent with a 70 percent rating and not a 100 percent rating, the Board concludes that, overall, the Veteran’s psychiatric symptomatology more closely coincides with the criteria for a 70 percent rating in terms of severity, frequency, and duration.
The Board recognizes that the 2010 lay statement submitted by the Veteran’s wife is consistent with his claimed symptoms of sleep disruption, panic attacks, and depression. The Board does not refute these claims, but also does not find that the Veteran’s symptoms are indicative of a total impairment. As stated above, the Veteran has been able to continuously interact with others appropriately, and even, at times, volunteer and engage in the hobby of playing his guitar. The reported symptoms do not represent a total impairment on the Veteran’s occupational and social abilities.  
In reaching its conclusion, the Board has also considered Dr. R’s opinion that the Veteran’s psychological condition precludes employment. Dr. R reviewed the record and observed the Veteran for an examination. However, his conclusion is inconsistent with his reported observations or with the evidence on record. For example, Dr. R notated that the Veteran’s “psychomotor behavior was inconsistent” but also stated that he “was alert and responded appropriately to directions” and “his level of consciousness was unimpaired”. Dr. R also noted that “attempts to engage in employment at this point is likely to result in an acute deterioration in psychological functioning” but did not refer to any records showing that the Veteran cannot function independently, appropriately, and effectively as to justify this conclusion. Further, Dr. R described the Veteran as having only a “Moderate-to-Marked psychological disability” which is consistent with the Veteran’s current 70 percent rating.  
As stated above, the Veteran has continuously interacted appropriately with his care providers, VA examiners, and others at all times and consistently exhibits a rational mental state. While Dr. R stated that he found the Veteran credible, he also recorded that the Veteran “demonstrates questionable insight into, and manifests a tendency to externalize, his symptoms and situational problems.”
The Board has also considered the records furnished by the Social Security Administration (SSA). However, SSA uses a different standard in determining claims than the VA. Further, the “treating physician” rule (in SSA requiring SSA to give more evidentiary weight to the treating physician and accept the opinion unless contradicted) is not applicable to VA claims. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). 
The Board recognizes that the Veteran has a limited work history and has not worked since, at the latest, 2011. The Board cannot determine the exact date of the Veteran’s last work experience because the Veteran has reported conflicting employment dates to various providers and subsequently failed to respond to the RO’s 21-4192, Request for Employment Information, or provide complete addresses for the employers listed on the Veteran’s VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Nonetheless, the fact that the Veteran’s service-connected acquired psychiatric disability results in occupational impairment has been considered by the Board. Such impairment is explicitly contemplated by the schedular criteria. That the Veteran was not working during the period at issue does not by itself define his level of impairment, and does not by itself demonstrate that a rating in excess of 70 percent is warranted. Specifically, it does not, in and of itself, demonstrate that the Veteran had total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9499-9440. In the above discussion, the Board detailed the factors constituting the Veteran’s overall disability picture. The Board has coordinated the Veteran’s demonstrated level of impairment with the rating criteria. See 38 C.F.R. § 4.21; see also Mauerhan, 16 Vet. App. 436. Although the record shows that the Veteran has not worked since July 2011, it also shows that, overall, the Veteran’s psychiatric symptomatology does not more closely approximate the level of severity contemplated by the criteria for ratings in excess of 70 percent. Therefore, the Board finds that the Veteran was not entitled to a rating in excess of 70 percent for the service-connected acquired psychiatric disability despite the fact that he has not worked since 2011, at the latest.
The Board has considered assigning staged ratings.  However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21Vet. App. 505 (2007).
Following a thorough review of the evidence of record, the Board finds that the evidence is not found to support a higher evaluation for anxiety than the 70 percent currently assigned from July 5, 2005 to the present.
3. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.
A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher.
In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question.
In this case, the issue of entitlement to a TDIU was raised at the Veteran’s December 2017 hearing as part of the Veteran’s claim for entitlement to higher initial ratings for his service-connected psychiatric disability. Therefore, the applicable period for consideration is from July 5, 2005, the effective date for the award of service connection for anxiety disorder, to the present. See 38 C.F.R. § 3.400. The Veteran meets the preliminary schedular percentage requirements for a TDIU because he has had a single service-connected disability rated at higher than 60 percent since he was granted a 70 percent rating for anxiety effective July 5, 2005. The Board notes that the Veteran is also service-connected, compensable, for: instability of the right knee associated with osteoarthritis (20 percent), osteoarthritis of the right knee (10 percent), and bilateral tinnitus (10 percent). He is service-connected, non-compensable, for: seasonal allergies, inguinal hernia repair, bilateral hearing loss, residuals of elbow laceration, and residual neurological deficit of the right ring finger. The Veteran asserted on his December 2017 VA Form 21-8940 that he is prevented from obtaining substantially gainful employment due to his “sleep disorder, lower back pain, torn m[eni]scus, [and] lack of concentration”. However, as a TDIU may only be granted for service-connected disabilities, the Board has considered only whether the Veteran’s psychiatric issues and right knee prevent him from being able to obtain substantially gainful employment as those are the only service-connected ailments the Veteran asserted.  
Documents within the Veteran’s VA Vocational Rehabilitation and Education folder reflect that he has a high school education with additional training in Microsoft Office and computers. The Veteran’s vocational rehabilitation file indicates that he worked from 1998 to 2004 as a communications installer and foreman and as a personal trainer in 2005. 
He applied for VA vocational rehabilitation and education services in July 2005 and was eventually placed in an individualized computer tech support and customer service program. In January 2008, the Veteran stopped attending the program after reporting problems with his disabilities and a concern that he was not ready to take his computer technician certification exam. In February 2008, the Veteran’s request for an extension of his training was denied after it was determined that the Veteran had completed all necessary training and had the skills for entry level employment. Numerous attempts were made by several means to assist the Veteran further. The Veteran did not respond to subsequent attempts of contact, and his training VA vocational rehabilitation program was eventually closed in September 2012.
The Veteran completed a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in December 2017. On the form, he indicated that he has a high school education and two additional years of computer training from 2004 to 2006. He also stated that he worked at a telephone company from 1996-2002, and then at a separate communications company from 2002 to 2005 making $48,000 per year at each job. 
The Board acknowledges that the Veteran was unsuccessful in his vocational rehabilitation program. However, the Veteran’s vocational rehabilitation folder does not show that his occupational goals were ever deemed unfeasible. Rather, it shows that the Veteran was initially successful in his training program, albeit with extended training to meet his needs, but that he was eventually removed from the program due to excessive absences. He did not follow up with the vocational rehabilitation program to indicate when he would return to training. The Veteran’s vocational rehabilitation folder therefore merely shows that he voluntarily stopped communicating with the program, and that his program was closed due to that lack of communication. It does not show that his program was closed due to an observed inability to complete the program or that employment or further education were considered not feasible. As such, the Board does not consider the Veteran’s inability to complete the vocational rehabilitation program to be an indication that he was unable to secure or follow a substantially gainful occupation.
The Board has also considered the private medical records from Dr. R. However, the Veteran’s statements to this care provider are inconsistent with previous statements made to other care providers. Namely, although the Veteran told this care provider that his emotional issues began to emerge when he became a Sergeant during his active service, he told another care provider in July 2005 that his situational anxiety was “atypical” especially “when he was in the military”. The Veteran also told this provider that he was last employed in 2011 through his union after reporting to another provider in 2015 that he last worked in 2008, reporting to another provider in 2012 that he last worked in 2006, and stating on his VA Form 21-8940 that he last worked in 2005. Given the inconsistencies in the Veteran’s statements, the Board finds them to be not credible. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant).
Further, the Board has considered the December 2010 report and Medical Impairment Questionnaire written by VA examiner Dr. T.B. and contained in the SSA records. In those records, which she based on his “chronic, aching, and sometimes stabbing back and knee pain, depression, post-traumatic stress disorder, anxiety, hypertension, and anemia”, Dr. B. rated the Veteran’s physical residual functional capacity as able to sit for an hour and stand or walk from zero to one hour in terms of an eight-hour workday, and lift and carry from zero to five pounds occasionally. She further stated that he presents significant limitations for reaching and lifting due to his shoulders and back pain. However, the determination of a TDIU may only be based on the consideration of the effect of his service-connected disabilities. Dr. B.’s conclusions are, instead, based on all of the issues the Veteran had asserted at that time, including those that have been withdrawn or denied service connection. Although all medical opinions constitute medical conclusions that the Board cannot ignore or disregard, the Board is not obligated to accept any examiner’s opinion.  Hayes v. Brown, 5 Vet. App. 60, 69 (1993). The Board affords minimum weight to this opinion because it is not based solely on service-connected disabilities.
As stated above, the RO attempted to provide the Veteran with a VA examination to obtain needed medical evidence as to the current severity of his disabilities. The Veteran, without good cause, failed to attend a VA examination. As a result, medical evidence that could have been used to support this claim was not available to the Board. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding in pertinent part that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”).
The Board acknowledges that the Veteran’s work history primarily includes communications installation, and that the Veteran’s physical limitations would prevent him from returning to that job. However, his work history and level of education would not prevent him from transitioning to an occupation that involves a basic, routine occupation of a low exertional level such as clerical work or computer support. At the Veteran’s December 2017 hearing, he stated that he “can read a technical menu that’s got short instructions on there, how to complete certain tasks.” The evidence on record indicates that he would be able to transition to a position with simple instructions that did not require physical exertion.
The Board concludes that the probative evidence of record demonstrates that the Veteran has not been unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. The preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 55 (1990).
 
MICHAEL MARTIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K.Smith, Law Clerk