Citation Nr: 18150923 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 06-34 123A DATE: November 16, 2018 ORDER A disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT 1. The Veteran’s PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: depressed mood, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effect work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships; deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood are not shown. 2. The Veteran is service connected for PTSD, rated at 50 percent disabling; diabetes mellitus, rated at 20 percent; and prostate cancer, rated as 100 percent disabling as of December 1, 2017. The Veteran has a combined rating of 60 percent from August 30, 2003 to December 1, 2017 and 100 percent thereafter. 3. The Veteran has completed three years of college and last worked full time in November 2004 as a laborer. 4. The Veteran’s service-connected PTSD, diabetes mellitus, and residuals of prostate cancer do not preclude him from securing or following a substantially gainful occupation consistent with his educational background and previous work history. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 50 percent for PTSD have been met. 38 U.S.C. 1155, 5107; 38 C.F.R. 4.1-4.16, 4.125-4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU on an extraschedular have not been met. 38 U.S.C. §§ 1155, 5107, 5110(a); 38 C.F.R. §§ 3.400 (o), 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1965 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2005 and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Specifically, the December 2005 rating decision, in part, denied a TDIU and the May 2017 rating decision continued a 50 percent disability rating for the Veteran’s PTSD. In December 2009, the Veteran provided testimony at a videoconference hearing before a Veterans Law Judge. The Veterans Law Judge noted the issue on appeal, entitlement to a TDIU, and engaged in a colloquy with the Veteran toward substantiation of the claim. A copy of the hearing transcript is associated with the claims file. The Veterans Law Judge is no longer employed at the Board. In August 2013, the Veteran was informed of this fact and given the opportunity to request a new hearing. In correspondence dated August 2013, the Veteran through his representative declined VA’s offer to have a second hearing before a second Veterans Law Judge. In February 2010, the Board denied a TDIU. The Veteran appealed the denial of a TDIU to the United States Court of Appeals for Veterans Claims (Court). In December 2010, the Veteran and the Secretary of VA (Parties) filed a Joint Motion for Remand (JMR) and remanded the claim back to the Board, which was granted by the Court. The parties noted that the VA had not fulfilled its duty to assist. In May 2011, the Board remanded the TDIU claim for further development including a new VA medical examination and referral to the Under Secretary for Benefits or Director of Compensation Service. Such opinion was obtained in November 2012. In January 2014, the Board denied a TDIU once again. In November 2015, the Court issued a Memorandum Decision, vacating and remanding the issue of entitlement to a TDIU back to the Board for additional development. The Court found that the Board erred as a matter of law in assigning weight to the Director’s November 2012 decision. In May 2016, the Board remanded the TDIU claim for further development of an inextricably intertwined issue. In March 2017, the Veteran filed a new claim for an increased rating for PTSD and, by rating decision dated in May 2017, the RO continued a 50 percent disability rating for the Veteran’s PTSD. In June 2017 the Veteran timely filed a notice of disagreement. In September 2017, the Board remanded the claim for issuance of a statement of the case addressing the Veteran’s claim for an increased rating for PTSD. In July 2018, the RO issued a statement of the case in compliance with the Board’s September 2017 remand order. Additional evidence was added to the record in August 2018 and October 2018. Such evidence is largely related to the Veteran’s treatment for prostate cancer and VA examinations for diabetes and hearing loss. The Board finds the new evidence related to treatment for prostate cancer unrelated to the Veteran’s claim here for an increased PTSD rating and a TDIU. The VA examination for diabetes indicates the Veteran has right upper extremity neuropathy, but the examiner further indicated that the diabetic neuropathy would not have a functional impact on the Veteran’s ability to work. The Board finds the VA records, with regard to treatment for PTSD and diabetes, are cumulative to evidence already in the record. The Board further finds the additional VA examination for diabetic neuropathy does not affect evaluation of the Veteran’s claim for a TDIU. 1. PTSD The Veteran seeks a higher rating for PTSD. A November 2004 rating decision awarded service connection for PTSD and assigned an initial 50 percent rating. In March 2017, the Veteran filed the current claim for a higher rating for PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) 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 reviewed in relation to their history. 38 C.F.R. § 4.1. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. 4.130, DC 9411. Pursuant to this rating formula, a 50 percent rating 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 often 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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 a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating 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 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. The rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder’s primary focus in determining the level of occupational and social impairment. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. 4.126 (a). Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the Board finds that the Veteran suffers from symptoms of similar severity, frequency, and duration that cause occupational and social impairment equivalent to that which would be produced by the specific symptoms enumerated in the rating criteria, then the appropriate equivalent rating will be assigned. 38 C.F.R. § 4.21. Evidence relevant to the current level of severity of the Veteran’s PTSD includes an April 2017 VA psychiatric examination. At that time, the Veteran reported symptoms of depressed mood, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effect work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Behavioral observations by the examiner showed the Veteran was appropriately dressed and well groomed, made good eye contact and was involved in the interview, was very talkative and anxious to share his poetry and story, and had logical and rational thought processes. The examiner indicated there was no homicidal or suicidal ideation. The examiner opined that the best description of the Veteran’s current impairment was occupational and social impairment with reduced reliability and productivity. VA treatment records show that April 2017 the Veteran appeared for a mental health clinic visit. The Veteran voiced a lot of frustration with the compensation and pension process. Mental status exam showed clear, linear and organized thoughts with no evidence of psychosis. Mood was euthymic, and affect was congruent, though irritable with system issues. The Veteran was neatly groomed, maintained good eye contact, and had intact judgment and good insight. No gross cognitive or memory deficits were noted on interview. In August 2017, the Veteran appeared for a follow up for his PTSD. He indicated that he had had a birthday and some of his friends got together and he was very pleased that they remembered him. He reported that his son in Detroit had not been in touch for a while and he was a bit concerned about that. Mental status examination showed clear, linear and organized thoughts, euthymic mood, normal kinetics, and good eye contact. No gross cognitive or memory deficits were noted on interview, and the Veteran’s judgment was intact and insight was fair. The Veteran denied suicidal or homicidal ideas. In April 2018, the Veteran called to cancel an appointment due to conflicting medical treatment for his prostate cancer. Mental status observations showed organized and linear thought processes, euthymic mood, normal speech rate, volume, and cadence, and with no gross cognitive or memory deficits note. In July 2018, the Veteran reported that he had recently completed radiation treatments for prostate cancer and was waiting for the results. He indicated that his son called him for Father’s Day, and that he socializes with a number of friends. Mental status examination showed clear, linear, and organized thoughts with no evidence of psychosis, euthymic mood, neat grooming, and good eye contact. No gross cognitive or memory deficits were noted on interview, and the Veteran’s insight was fair and judgment was intact. Overall, the totality of the evidence reflects symptoms warranting no more than a 50 percent rating under the applicable criteria. There is no evidence of 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; or neglect of personal appearance and hygiene. The April 2017 VA examination report shows an inability to establish and maintain relationships, however treatment records document ongoing social and family relationships. Despite his difficulties maintaining relationships the Veteran reported celebrating a birthday with friends, receiving a letter and gift for Father’s Day from his son, and worried when he had not heard from his son in Detroit for a while. Also, during the April 2017 VA examination, the Veteran maintained good eye contact, had grossly normal cognition, and denied suicidal and homicidal ideation. In sum, the Board concludes that the Veteran’s PTSD is not manifested by symptomatology that nearly approximates the criteria for the next higher evaluation under DC 9411. The Board also finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. Because there are specific diagnostic codes to evaluate PTSD consideration of other diagnostic codes for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993). 2. TDIU The Veteran contends that he can no longer work due to his service-connected PTSD. The Veteran indicated in his Form 9 appeal dated October 2006 that his PTSD is the primary disability which renders him unemployable. The Veteran further testified at his December 2009 hearing that he felt he could not work due to symptoms of his service-connected PTSD. 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 finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Board may review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s service-connected PTSD has been rated as 50 percent disabling since April 8, 2003. The Veteran’s diabetes mellitus has been rated 20 percent disabling since August 30, 2013 and his prostate cancer has been rated as 100 percent disabling since December 1, 2017. His combined service connected disability rating has been 60 percent since August 30, 2013 and 100 percent disabling since December 1, 2017. 38 C.F.R. §§ 4.25. Therefore, the Veteran did not meet the percentage criteria for a TDIU prior to December 1, 2017. 38 C.F.R. § 4.16(a). In August 2018, the RO issued a rating decision granting service connection for prostate cancer under Diagnostic Code (DC) 7528 at 100 percent since December 1, 2017. The RO also granted special monthly compensation based on housebound criteria being met from December 1, 2017. The Board notes the schedular criteria for prostate cancer is temporary, and contemplates reassessment to rate under either voiding dysfunction or renal dysfunction after 6 months of treatment if or when the cancer goes into remission. Such evidence is not presently available or before the Board. In a September 2012 administrative decision, the Director of Compensation Services denied a TDIU on an extraschedular basis. In the decision, the Director found that totality of the evidence did not support the contention that, due to the Veteran’s service-connected PTSD, he is rendered unable to secure or follow a substantially gainful occupation. Since the Veteran’s claim for a TDIU on an extraschedular basis was denied by the Director, the Board may address the merits of the Veteran’s claim for entitlement to a TDIU on an extraschedular basis. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Board must now determine whether the Veteran is unemployable by reason of his service-connected PTSD and diabetes disabilities alone, taking into consideration his education and occupational background. The Veteran reported that he completed three years of college, and obtained an A.A. degree in instrumental music. He indicated that after his discharge he worked as a laborer, driver, and waiter. The Veteran testified at his December 2009 hearing that he last worked in November 2004. The Board notes at the outset that the Veteran is service connected for diabetes. However, a June 2014 VA diabetes examination shows that the Veteran’s diabetes was asymptomatic at presentation and that the Veteran denied any recent diabetic associated symptoms. Neither has the Veteran reported significant physical symptoms or functional limitations related to his service-connected diabetes mellitus. The global assessment of functioning (GAF) score reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. A GAF score of 41 to 50 is defined as serious symptoms (e.g. severe obsessional rituals). A GAF Score of 51 to 60 is defined as moderate symptoms (e.g. flat affect, conflicts with peers or coworkers). A GAF of 61 to 70 is defined as mild symptoms (e.g. mild insomnia) or some difficulty in social, occupational, or school functioning. VA treatment reports from 2005 through 2008 show GAF scores ranging from 50 to 61. Such scores are consistent with moderate mental health symptoms. Lay statements from the Veteran’s family members in March and April 2004 show the Veteran had difficulties with concentration and getting along with others; as well as physical difficulty lifting, sitting, climbing stairs, squatting, kneeling, and bending. In November 2005 the Veteran underwent a VA psychiatric evaluation. The Veteran complained of nightmares, insomnia, intrusive memories of Vietnam, hypervigilance, exaggerated startle response, and thoughts of wanting to hurt other people. He was receiving outpatient treatment and taking medication for his PTSD. On mental status examination, his hygiene was good, his mood was dysphoric, and his affect was flat. He was alert and oriented. There was no evidence of gross memory loss or impairment. The examiner diagnosed PTSD, chronic, and alcohol abuse in full remission. The examiner concluded that the Veteran continued to endorse chronic symptoms of PTSD that had adversely affected his psychosocial functioning and quality of life. A July 2006 Social Security Administration (SSA) determination found that the Veteran’s physical and mental disabilities limited him to lifting no more than 10 pounds, with no prolonged standing or walking, and determined that he was disabled. However, the determination was based upon consideration of degenerative arthritis of the knees and degenerative disc disease of the lumbar spine, both non-service-connected disabilities. In March 2008 the Veteran underwent a second VA psychiatric evaluation. The Veteran reported that his condition was essentially unchanged since the previous VA examination in 2005. He indicated he was still experiencing problems and symptoms of PTSD, but seemed to be able to cope with them better now. He was able to sleep better with his current medications. He still had nightmares and flashbacks, but was not as preoccupied with them. He continued to endorse irritability and moodiness. He did not like to socialize. The Veteran reported that he quit working in 2005 due to his back disability, but that he was unable to look for a job because he got easily stressed and did not like to be around people in general. He noted problems with one of his sons. On mental status examination, the Veteran was alert and oriented; he appeared sad and downcast; and there was an underlying tone of anger and irritability. He expressed a great deal of frustration, and he had a sense of hopelessness. He had problems with guilt and remorse. His speech was coherent and goal directed. His insight and judgment were considered limited. The clinician assessed chronic PTSD. The examiner noted the Veteran had difficulty maintaining positive and effective interpersonal relationships, including with his immediate family; and he had difficulty adapting to stressful circumstances. A May 2012 VA psychiatric examination shows that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran had been the primary caretaker for his mother until her death in 2011. He wrote poetry that he hoped to get published. He limited his socializing because “most of the guys are drinkers.” He continued to receive psychiatric treatment and to take medication. His psychiatric symptoms were reported as depressed mood, chronic sleep impairment, and disturbance of motivation and mood. The Veteran said that he kept the television on to help him sleep, that his flashbacks were not as bad as they used to be, and that he had an anger problem. According to the clinician, the Veteran continued to experience chronic symptoms of PTSD without remission; but there appeared to be no significant increase in PTSD symptoms since his last VA examination. In July 2012, the same VA examiner completed an addendum opinion. The clinician indicated the Veteran’s PTSD did not render him unemployable, as he was alert and fully oriented; able to communicate effectively in written and spoken language; and able to understand, remember, and carry out at least simple instructions. Additionally, it was noted that his thoughts were logical and goal-directed without evidence of a formal thought disorder. There was no evidence of significant memory problems, and his judgment was not impairment. He did report problems with sleep, irritability, depressed mood with periods of reduced motivation, anxiety, intrusive thoughts, exaggerated startle response, and hypervigilance. However, his symptoms were not considered so severe that he would be incapable of being employed solely due to symptoms of PTSD. In August 2013, vocational rehabilitation provider Gene W. McCants, M.S., completed a vocational counseling report. He indicated that the Veteran’s PTSD limited his ability to work in noisy environments, concentrate or focus on the task at hand, perform a variety of duties, perform repetitive work, perform fast paced work, follow instructions, meet emergencies, perform competitive work, work around others, and work with others. He indicated the Veteran’s service-connected disability rendered him unable to obtain and maintain suitable employment or perform duties associated with any of the fields for which he had gained previous experience. In April 2017 the Veteran underwent a VA psychiatric examination. The Veteran continued to report that he was experiencing problems and symptoms of PTSD including intrusive thoughts, distress dreams, diminished interest in activities, sleep disturbance, depressed mood, and difficulty establishing and maintaining relationships. Examination findings show that the Veteran was appropriately dressed and well groomed; made good eye contact and was involved in his interview; that his thought processes appeared logical and rational; and that there were no homicidal or suicidal ideations. However, the veteran was very talkative and anxious to share his story. The examiner indicated the Veteran would have occupational and social impairment with reduced reliability and productivity, but did not mark that the Veteran would have deficiencies in most areas or total occupational and social impairment. Based on a review of all of the evidence of record, the Board finds that the Veteran’s service-connected disabilities, whether limited to PTSD or inclusive of diabetes mellitus and prostate cancer, have not precluded him from being able to secure and maintain substantially gainful employment. The Veteran’s statements regarding his functional status and employment have not consistently identified his service-connected PTSD as the reason for his difficulty finding employment. At his March 2008 VA psychiatric examination, the Veteran reported that he had last worked at a labor pool, but that he had to quit working because of a bad back. The Veteran also related that he had not been able to look for a job because he got easily stressed and does not like to be around people. Similarly, at a February 2008 VA examination, the Veteran indicated that he was no longer able to do his job at a country club or paint and cited exclusively physical difficulty related to his non-service-connected back and right knee conditions. While the Board is sympathetic to the Veteran’s physical difficulty given his work history as a laborer, painter, and driver, symptoms from the Veteran’s non-service-connected knee and back conditions are not service-connected disabilities that could be a basis for an award of a TDIU. The lay statements by the Veteran’s family members, and SSA’s disability determination, have been considered and given limited probative value; because of their consideration of non-service- connected disabilities or the Veteran’s medical condition, in general. Vocational rehabilitation provider Gene W. McCants, M.S. report has been considered and given limited probative value; because the report lacks a clear explanation to support the conclusion that the Veteran is unable to maintain substantially gainful employment due to his PTSD. The probative evidence of record is against entitlement to a TDIU. While the record reflects that the Veteran has some occupational impairments resulting from his service-connected PTSD, as contemplated by his currently assigned 50 percent rating, the evidence does not establish that it alone, or in combination with his other service-connected disabilities, precludes gainful employment. Because the record does not reflect that the Veteran is unemployable due solely to his service-connected disabilities, the preponderance of the evidence is against his claim for TDIU. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel