Citation Nr: 18150825 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-49 042 DATE: November 15, 2018 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s posttraumatic stress disorder (PTSD) is manifested by symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment and irritability, resulting in occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability perform occupational tasks, although generally functioning satisfactorily. 2. The Veteran does not have one disability rated at 60 percent or higher, nor does he have one disability rated at 40 percent or more and sufficient additional disability to bring the Veteran’s combined rating to 70 percent or more. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a (TDIU) have not been met and referral for extraschedular consideration is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2002 to November 2002 and from August 2004 to January 2006, with additional service in the National Guard. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2016). It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) The Veteran and his representative have asserted that the severity of his PTSD symptoms warrant an initial evaluation in excess of 30 percent. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is warranted for when there is occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted when there is 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; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when 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 of the Veteran 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. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and additionally contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. The Veteran was first provided with a VA examination in connection with his claim in October 2013. At this examination, the Veteran reported symptoms such as depressed mood, anxiety, chronic sleep impairment. See, October 2013 VA examination. Other reported symptoms included hypervigilance and irritability. The VA examiner noted that the Veteran’s symptoms appeared to be moderate and that his orientation, long-term memory, attention and concentration were all grossly intact. There was no indication that the Veteran suffered from panic attacks, an inability to establish and maintain effective relationships, difficulty in understanding complex commands, any impairment of short and long-term memory, impaired impulse control or an inability to perform activities of daily living. Overall, the VA examiner concluded that the Veteran’s PTSD results in “occupation 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.” Id. The Veteran was next afforded a VA examination in April 2015. Prior to this examination, the Veteran was not seen for mental health treatment. During the April 2015 VA examination, the Veteran continued to endorse similar symptoms as he did during his October 2013 VA examination, to include irritability, hypervigilance, persistent negative emotional state, depressed mood, anxiety, and suspiciousness. See, April 2016 VA examination. The Veteran indicated that he occasionally experienced unwanted memories and dreams related to his combat experience and that he becomes irritable and tense when the memories occur. The VA examiner indicated that the Veteran was oriented to person, did not present with hallucinations or delusions, did not have homicidal or suicidal ideation, and that he presented with fair insight and judgment. Again, there was no indication that the Veteran suffered from panic attacks, an inability to establish and maintain effective relationships, difficulty in understanding complex commands, impairment of short and long-term memory, impaired impulse control or an inability to perform activities of daily living. Overall, the VA examiner opined that the Veteran’s PTSD was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Id. Following the Veteran’s April 2015 VA examination, the record reflects that the Veteran intermittently sought mental health treatment. In May 2016, the Veteran was noted to have a normal mental status examination and the Veteran reported that he “feels that he manages his PTSD well.” See, post-service treatment record dated May 2016. The Veteran did not receive treatment again until April 2018 to re-establish care. At that time, the Veteran had a normal mental status exam and the VA counselor noted that the Veteran was anxious, but otherwise had clear speech, normal thought process, sound insight and judgment and did not appear delusional. See, post-service treatment record dated April 2018. The Veteran was seen again in May 2018 and June 2018 and at both times, while the Veteran indicated symptoms of anger and sadness, the Veteran was reported to have a normal mental status examination, although short term memory impairment was documented. The record does not reflect delusions or suicidal or homicidal ideations and indicates that the Veteran was oriented, his thoughts were linear, logical, and goal-directed with no issues with in sight and judgment. See, post-service treatment records dated May 2018 and June 2018. Based on the above, the Board finds that the Veteran is not entitled to an initial rating in excess of 30 percent. The Board notes that the Veteran does not sufficiently endorse the symptoms that are required for a 50, 70, or 100 percent disability rating. In this regard, the Board notes that the symptoms listed are not meant to be an exclusive list, but the severity of the Veteran’s symptoms are more closely approximated by his current 30 percent rating. In that regard, the Board specifically notes that while some short term memory impairment was recently documented, the Veteran does not otherwise endorse symptoms of flattened affect, panic attacks more than once a week, difficulty in understanding complex commands, impairment of long term memory, or impaired judgment and insight as outlined in the criteria for a 50 percent rating. The Veteran also does not endorse symptoms such as suicidal ideation, obsessional rituals with interfere with routine activities, illogical, obscure or irrelevant speech, neglect of his appearance and hygiene, or the inability to establish and maintain effective relationships as outlined in the criteria for a 70 percent rating. Finally, the Veteran also does not exhibit persistent delusions or hallucinations, does not present with grossly inappropriate behavior, is not noted to be disoriented to time or place, has not shown an inability to perform activities of daily living and does not show gross impairment in thought processes or communication as outlined in the criteria for a 100 percent rating. The Veteran’s consistently reported symptoms of anxiety, suspiciousness, depressed mood and his noted mild memory loss are all contemplated by his current rating of 30 percent. Accordingly, based on the above, the Board finds that a preponderance of the evidence is against an initial rating in excess of 30 percent. TDIU Total disability ratings for VA compensation purposes may be assigned when the disabled person 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, 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). However, if the percentage ratings of 38 C.F.R. § 4.16(a) are not met but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, an “extraschedular TDIU” may be assigned and the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2016). 38 C.F.R. § 4.16(b). 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 (1993). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by his employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background, but not age. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) The Veteran and his representative assert that he is entitled to a TDIU because he is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. The Veteran is currently service connected for PTSD at 30 percent, lumbar degenerative disc disease with thoracic strain at 10 percent, tinnitus at 10 percent, and hearing loss at 0 percent; resulting in a combined disability rating of 40 percent. As outlined above, when the Veteran is service connected for more than one disability, 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). Based on these criteria, the Board finds that the Veteran does not meet the schedular criteria for a TDIU. With respect to whether the Veteran is entitled to a TDIU pursuant to 38 C.F.R. § 4.16(b), the Board notes that the Veteran has several degrees and was working as a personal trainer, massage therapist, and a bouncer prior to leaving those positions to go back to school full time and pursue a bachelor’s degree. With respect to the Veteran’s PTSD, the May 2016 VA examiner indicated the Veteran “maintains the cognitive, emotional, and behavior capacity to engage in simple tasks in a loosely supervised environment. His behavioral health symptoms are not likely to interfere with performance of these tasks on a routine basis…. Veteran would do well in a structured and familiar setting.” See, May 2016 VA examination. With respect to the Veteran’s tinnitus and hearing loss, he has reported that it is “irritating” and that he needs the volume “turned up.” See, March 2017 VA examination. Finally, with respect to the Veteran’s lumbar degenerative disc disease with thoracic strain, the VA examiner noted that the Veteran has to be careful when moving, but that the Veteran is able to walk without limitation, can sit as long as he is able to reposition, and can left 30-50 pounds using proper lifting technique. See, March 2017 VA examination. Considering all of the above, the Board finds that the Veteran would not be precluded from securing and following substantially gainful employment because of his service-connected disabilities. While the Board does acknowledge that the Veteran does suffer from some functional loss from his service-connected disabilities, the Board finds that the Veteran’s primary impairment to occupation at this time is a result of the Veteran taking time to pursue another degree, and that his service-connected orthopedic limitations together with his other service-connected disabilities are currently not so disabling as to preclude him from securing or maintaining the work he is accustomed to doing (as further demonstrated by the 10 percent rating currently assigned for his back disorder, which contemplates the occupational impairment demonstrated by this service-connected disability). Accordingly, the Board finds that the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a TDIU on an extraschedular basis and that as a result, referral for extraschedular consideration is not warranted. 38 C.F.R. § 4.16(b). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel