Citation Nr: 18150351 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-07 508 DATE: November 15, 2018 ORDER Entitlement to service connection for tinnitus is withdrawn. Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran withdrew the issue of entitlement to service connection for tinnitus. 2. Throughout the appeal, the functional impairment resulting from the Veteran's PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but has not caused total occupational and social impairment. 3. Throughout the appeal period, the Veteran’s service-connected disability precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim for service connection for tinnitus have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Throughout the appeal period, the criteria for a 70 percent rating for PTSD, but no higher, have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). 3. Throughout the appeal period, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the U. S. Army from November 1966 to September 1969. His many awards include the Vietnam Service Medal with three Bronze Service Stars and the Silver Star. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2017, the Board denied the Veteran’s claims for service connection for tinnitus and for an increased initial rating for PTSD. These denials were appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court approved a Joint Motion for Partial Remand (JMPR) vacating the Board's denials and remanding the claims for further action. Additionally, the Court directed that the Board address a claim for TDIU which was reasonably raised by the record. 1. Entitlement to service connection for tinnitus The Board may dismiss any appeal that fails to allege a 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(a). Withdrawal may be made by the appellant or by his or her authorized representative on the record during a hearing before the Board or in writing. 38 C.F.R. § 20.204. Here, the Veteran’s representative submitted an October 2018 letter withdrawing the claim for entitlement to service connection for tinnitus. Accordingly, the Board finds that the Veteran has clearly and unambiguously withdrawn the appeal of this claim. There is no remaining allegation of error of fact or law for appellate consideration with respect to this issue. Therefore, the Board does not have jurisdiction to review it, and the claim is dismissed. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. PTSD is rated under 38 C.F.R. § 4.130 , Diagnostic Code 9410, according to the General Rating Formula for Mental Disorders. The Veteran’s PTSD is currently evaluated as 50 percent disabling. Under the General Rating Formula, a 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is justified when there is 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 relationship. Id. A 100 percent disability rating is reserved 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the claimant's symptoms, but it must also make findings as to how those symptoms impact the claimant's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the claimant's impairment must be “due to” those symptoms; therefore, a claimant may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. The medical evidence of record includes VA PTSD examinations of April 2015 and January 2016, an October 2018 evaluation by a private psychiatrist, Dr. C., and VA treatment records from October 2014 to April 2016. The record reflects that the Veteran has not participated in any treatment after April 2016. All relevant medical records are associated with the file and the issues may be fully adjudicated. The Veteran served as a combat medic in Vietnam. On his return to civilian life, he worked as a psychiatric nurse for 34 years. He married and raised two daughters. He maintains good relationships with his wife of over 40 years and his adult children. While the Veteran successfully fulfilled his work and family obligations over many years, he provided an September 2018 statement explaining that he did so despite suffering PTSD symptoms. In his words, he “worked hard to have a somewhat normal life in spite of them.” The Veteran retired from nursing in 2004. He reported to his VA therapist, the VA examiner and Dr. C. that his PTSD symptoms increased after retirement. A VA PTSD examination was provided in April 2015. The examiner noted the Veteran experienced nightmares twice a week, had daily flashbacks, persistent moderate hypervigilance, and social discomfort. He preferred not to leave his house and was prone to isolation and periods of emotional numbing. He had a moderate level of sleep disturbance and his ability to enjoy daily activities was persistently moderately impaired. The examiner described a recurring startle response. The Veteran reported during the examination that he used marijuana on a regular basis to alleviate his PTSD symptoms. The examiner opined this drug use did not constitute abuse. The Veteran did not report suicidal thoughts. The same VA examiner completed a second examination in January 2016. The Veteran reported his feelings were “stirred up” due to his use of journaling as directed by his VA therapist. The examiner observed “a significant increase in the overall severity of his PTSD symptoms.” The Veteran experienced nightmares three or four times per week. His daily flashbacks and memories were now accompanied by “marked hyperarousal.” His isolation was increased and he would not go out in public unless “absolutely necessary.” He had “frequent and very disruptive startle reactions” which resulted in his feeling shaken for most of a day or longer. He spent most of his time alone in the garage. His continuing sleep disturbance had increased from moderate to marked. No suicidal thoughts were reported. VA treatment records reveal in December 2014, the Veteran reported to therapist that he was experiencing intrusive flashbacks, memories, and nightmares. He described his startle reaction as “bad” and his behavior as hypervigilant. He reported smoking marijuana every other day. In January 2015 he reported flashbacks and “being startled a lot.” He felt his “radar [was] off the screen.” In February 2015 he expressed his desire to gain control over his anxiety and isolation. He was greatly worried that his startle reaction was so disruptive he would be embarrassed by it in a public setting. In March and April 2015, he described frequent and persistent flashbacks as well as his use of journaling to address his memories. In July 2015, the Veteran discussed his negative reactions and feelings produced by Fourth of July fireworks. In August 2015 he related that he was “driven crazy” by the sound of gunfire on a shooting range on his neighbor’s property. In October 2015 his therapist noted the Veteran’s candor in discussing his reaction to “certain smells in the woods” which brought to mind the jungle in Vietnam and his experiences there. The therapist’s records indicate that over many months, the Veteran’s began to reveal greater and more personal detail about his experiences, symptoms, and ongoing difficulties. In April 2016, the Veteran reported using marijuana every other day to lessen his symptoms. The Veteran did not report suicidal thoughts during any therapy appointments. The Veteran stopped attending therapy after April 2016 because his therapist left VA due to her own cancer diagnosis. He related in his September 2018 statement, “I found it very, very hard to bear my secrets, my soul to this woman. I couldn’t do it over again.” His therapist did not return to work and he did not continue any additional treatment. Private psychiatrist, Dr. C., examined the Veteran and reviewed his medical history in October 2018. Dr. C. observed the Veteran had “become so thoroughly socially isolated that he stays in his garage and rarely leaves his home, relying on his wife to maintain the day-to-day household functioning.” He noted “severe flashbacks, intrusive memories, hypervigilance, startle response, panic attacks, and fatigue.” He characterized the Veteran’s PTSD as “severe.” In addition to the medical evidence discussed above, the Veteran’s wife submitted statements of June 2015 and October 2018. In June 2015, she described her husband’s history of avoiding social interaction and his choice to spend much of his time “alone in our garage.” She noted his increased use of alcohol to manage social situations. She reported his startle response as “intense and scary.” Over the years, she learned it was best “to approach him slowly and call his name before getting too close.” Her October 2018 statement recounts the Veteran’s inability to discuss his combat experiences, his continued isolation, and his struggles to control his startle response. In a September 2018 statement, the Veteran revealed that he was not fully truthful in reporting his use of marijuana and prescription medications to the VA examiner. He “downplayed” his drug use over concern about keeping his nursing license. Further he expressed shame over using other drugs which had not been legally prescribed for his use. He reported he also “downplayed” his history of suicidal thoughts. Noting the Veteran’s difficulty discussing his experiences with his wife and his inability to continue with PTSD treatment after his trusted therapist became unavailable, the Board finds his statements of underreporting his drug use and suicidal thoughts are credible. After resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's PTSD resulted in occupational and social impairment that more nearly approximated the criteria for a 70 percent disability rating throughout the course of the appeal. The symptoms of isolation, reluctance to leave the house, disruptive and intense startle response, daily experience of flashbacks and memories, ongoing drug use to attempt to lessen symptoms, and a history of suicidal thoughts existed over the entire appeal period. Nonetheless, the Board finds the Veteran has not demonstrated total occupational and social impairment from PTSD during the course of the appeal to warrant a 100 percent disability rating. He maintains his family relationships and has demonstrated his ability to thoughtfully relate to the medical professionals who have treated or evaluated him over the appeal period. Importantly, at no point has the Veteran's PTSD manifested in symptoms as severe as lack of orientation to time and place, significant memory loss equivalent to being unable to remember the names of close family member’s or his own name, significantly disturbed thought processes, or being a persistent danger to himself or others. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) As noted above, the Court approved JMPR directs that TIDU has been raised by the record and must be addressed by the Board. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Now, the Board has determined a 70 percent disability rating is warranted over the appeal period. The schedular requirement for PTSD is met. See 38 C.F.R. § 4.16(a). In determining entitlement to a TDIU, 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). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop. Id; see also, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). 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 non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2015). Here the Veteran completed the educational and licensing requirements to work as a nurse. He was employed full time as a nurse for 34 years and retired in 2004. From 2006 to 2011 he worked part time as a nurse. In a statement accompanying his October 2018 formal claim for TDIU, the Veteran expressed that after 2011 his PTSD symptoms had become too intense to allow him to continue working. As discussed above, the Veteran suffers from social isolation, an extreme startle response, fatigue (induced by nightmares and sleep disruptions), daily flashbacks and intrusive memories. The Veteran is qualified to work as a nurse. However, nursing requires personal interaction with patients and other medical professionals to facilitate appropriate patient care. The Veteran’s isolation and startle response would likely prohibit him from working as a nurse or in any other situation (such as medical or pharmaceutical sales) which requires social interaction. In addition, fatigue, flashbacks, and disruptive memories would prevent the Veteran from staying on task and completing work in an independent setting (such as reviewing medical claims or bills). Resolving reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise with respect to the issue of whether the Veteran is capable of obtaining and maintaining substantially gainful employment; thus, TDIU is warranted over the entire appeal period. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel