Citation Nr: 18150594 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-34 721 DATE: November 15, 2018 ORDER Entitlement to a disability rating in excess of 70 percent for service-connected anxiety disorder with depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected anxiety disorder with depressive disorder does not render him totally socially and occupationally impaired. 2. The Veteran’s service connected disabilities alone do not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for anxiety disorder with depressive disorder have not been met. U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.126; 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army honorably from February 1969 to September 1970. This case comes before the Board on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office. 1. Entitlement to a rating in excess of 70 percent for anxiety disorder with depressive disorder A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected anxiety disorder with depressive disorder is currently evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411 for posttraumatic stress disorder (PTSD) as 70 percent disabling. He asserts that a higher rating is warranted. PTSD and anxiety disorder are rated under the General Rating formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, a 70 percent rating is warranted where 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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; memory loss for names of close relatives, own occupation, or own name. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2018). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders. The Veteran’s anxiety disorder with depressive disorder has resulted in symptoms including nightmares related to experience in Vietnam, ongoing anxiety and depressed mood, problems with interpersonal relationships, flashbacks, intrusive memories, and an affected sleep pattern. His anxiety disorder has been noted to cause occupational and social impartment, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The evidence of record reflects that during the appeal period, the Veteran has obtained a perfect score of 20/20 on the Barthel Index of Activities of Daily Living which focuses on issues relating to mobility and hygiene. Additionally, the Veteran received perfect scores of 8/8 and 18/18 respectively on the Lawton-Brody Instrumental Activities of Daily Living (IADL) Scale and the Katz Index of Independence. These focus on one’s ability to do basic household chores and manage transportation. The Veteran’s medical reports during the appeal period consistently report that he presents as clear, coherent, alert, exhibiting logical thought processes, good memory, and fair judgment and insight. During a January 2016 VA examination, the examiner noted that the Veteran’s PTSD symptoms appeared to be related to mild to moderate impairment in most areas of functioning, including mental health, family relationships, social and occupation. The examiner noted that the Veteran tended to isolate himself from his social network, but had generally cohesive family relationships. The examiner found the Veteran’s overall symptomatology consistent with occupational and social impairment with reduced reliability and productivity. During an April 2018 examination, the Veteran reported that he has a stable relationship with his wife, enjoys time with his family, attends church regularly, and has one close friend. He reported his primary symptom as “nervousness,” and stated that he becomes more anxious going to the doctor. He stated he still has dreams of being in Vietnam, and will wake up sweating and screaming, but does not recall the contents of those dreams. He says he generally avoids conversations about Vietnam. The examiner noted he displayed detachment, persistent anger and fear, irritability, chronic insomnia and problems concentrating. Based on the above, the Board finds that a rating in excess of 70 percent is not warranted at any time during the appeal period. In so finding, the Board notes that the Veteran regularly denied hallucinations and was not found to have grossly inappropriate behavior. He was not in persistent danger of hurting himself or others and was regularly described as well groomed, denying any inability for self-care. While some memory impairment was noted, it did not approximate the level of memory loss for names of close relatives, own occupation, or own name. In reaching this conclusion, the Board is aware that the presence of certain symptoms is not necessarily determinative. Rather, the Board should review the overall occupational and social impairment in the referenced areas. Vazquez-Claudio v. Shinseki, 713 F.3d 112. In this regard, the Veteran was noted to be maintaining a marriage for over 40 years at the time of his April 2018 VA examination and indicated a good relationship with his children. He was notably described as casually and appropriately dressed, being cooperative, and alert and oriented throughout the appeal period. While there is evidence of social impairment, the Veteran reported that he enjoyed attending church twice a week, spending time with his wife and dog, and taking walks around his neighborhood. The Board finds that a preponderance of the evidence is against awarding a disability rating in excess of 70 percent for PTSD at any point during the appeal period. Accordingly, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A total disability rating may be assigned where the schedular disability rating is less than 100 percent, when a Veteran is, in the judgment of the rating agency, 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there is at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. During the appeal period, the Veteran is awarded service connection for anxiety disorder with depressive disorder, rated 70 percent disabling; tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated noncompensably disabling. As such, the Veteran meets the schedular criteria for TDIU laid out in 38 C.F.R. § 4.16(a). Therefore, the question before us remains whether, in the judgment of the rating agency, the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. On the Veteran’s November 2015 Application for Increased Compensation based on Individual Unemployability, he reported that he completed 2 years of high school and had no additional, vocational training. His most recent employment was as a maintenance carpenter for a school district, where he worked the previous 15 years. He retired from that position in August 2015 and reported that he lost no time from work related to his service-connected disabilities. The Veteran stated that he became too disabled to work in August 2015 related to his anxiety disorder. The Veteran’s previous employer noted that the Veteran was employed for over 15 years as a carpenter and that no concessions were made to the employee by reason of disability. He did not lose any time from work due to disability in the 12 months preceding his retirement. During a November 2011 VA audiological examination, the examiner noted that the Veteran’s hearing loss may cause some difficulty following verbal instructions, especially in noisy environments when he has to use hearing protection and/or cannot use his hearing aids. However, in optimal listening conditions, his hearing loss and tinnitus should not interfere with his employment. During a November 2011 VA PTSD examination, the Veteran reported a poor relationship with his supervisor related to his disrespectful nature. He also noted a strained relationship with his co-workers. During VA treatment in April 2012, the Veteran reported that he was having more difficulty maintaining good relationships due to his mood. He further noted that he had old work-related injuries that contributed to his mood. In October 2013, the Veteran stated that he finds himself irritable and angry and admitted that he felt tired after working for 4 hours. In August 2014, the Veteran noted that he hoped to retire the next year. In March 2015, he stated that he was hesitant to retire and felt he was doing well on his medications. In a November 2015 Mental Health Note, the Veteran stated that he retired from his job as a result of his PTSD symptoms. Specifically, he noted that he is a “very nervous person” and that, “it would be too much pressure for me, I couldn’t handle it.” During the January 2016 VA PTSD examination, the Veteran reported retiring in 2015 due to too much stress, as well as the hazardous conditions of work. The examiner described the Veteran’s PTSD symptoms as causing a mild to moderate occupational impairment. During the April 2018 VA PTSD examination, the Veteran reported that he “was tired of moving around white boards and that’s why I quit.” He stated he did not get along with his supervisor at this job. The examiner noted that the Veteran’s PTSD was mild and caused occupational impairment with respect to his ability to communicate, give and receive constructive criticism, and control his anger. After a review of the above, the Board finds that the objective evidence of record does not demonstrate that his service-connected disabilities alone do not result in his inability to work. Instead, the record indicates that the Veteran was eligible for retirement from his position after 15 years. There is no evidence that he was unable to continue or that he had difficulty maintaining his employment related to his service-connected disabilities. The Board has considered the Veteran’s various reports of conflicts with coworkers and his supervisor and his statements that his anxiety precludes his employment. The Veteran is competent to report symptoms of his service-connected disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board finds the medical evidence of record to be more probative evidence of record regarding the Veteran’s employability, and therefore it is accorded greater weight than the Veteran’s subjective complaints of symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, the examiners found the Veteran’s anxiety disorder would have a mild to moderate impairment on his occupation, which is considered in his 70 percent disability rating for anxiety disorder. Additionally, despite reports of being disrespectful to his boss and confrontations with coworkers, the Veteran has submitted no evidence of disciplinary action at work and his employer noted that the Veteran lost no time from work due to his disabilities. The Board does not doubt that the Veteran’s service-connected disabilities have an effect on his employability, as evidenced by his combined disability rating. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service-connected disabilities alone are sufficient to produce unemployability. Although they produce impairment to some degree, the evidence does not reflect gainful employment is precluded solely due to such service-connected disabilities. As such, the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, Gilbert, 1 Vet. App. 49. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Stuedemann, Associate Counsel