Citation Nr: 18152520 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 18-12 532 DATE: November 23, 2018 ORDER Entitlement to a disability rating in excess of 50 percent for unspecified trauma and stressor related disorder and unspecified neurocognitive disorder is denied. Entitlement to a total disability rating based on individual unemployability(TDIU) due to service-connected unspecified trauma and stressor related disorder and unspecified neurocognitive disorder is denied. FINDINGS OF FACT 1. The competent evidence of record does not demonstrate that the Veteran’s unspecified trauma and stressor related disorder and unspecified neurocognitive disorder is manifested by symptoms that result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The competent evidence of record evidence does not demonstrate that the Veteran’s service-connected unspecified trauma and stressor related disorder and unspecified neurocognitive disorder precludes him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for unspecified trauma and stressor related disorder and unspecified neurocognitive disorder 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, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU rating have not been met throughout the entire appellate period. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision. 1. Entitlement to a disability rating in excess of 50 percent for unspecified trauma and stressor related disorder and unspecified neurocognitive disorder is denied. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s unspecified trauma and stressor related disorder and unspecified neurocognitive disorder is rated under Diagnostic Code (DC) 9411. 38 C.F.R. § 4.130. Almost all mental health disorders, including unspecified trauma and stressor related disorder and unspecified neurocognitive disorder, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. Under the General Rating Formula, a 70 percent disability rating requires: 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 disability rating requires: 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. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather 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). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. Rather, VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-5). Id. at 443; see 38 C.F.R. § 4.130. If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must 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; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In short, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. The preponderance of the evidence weighs against a rating in excess of 50 percent for the Veteran’s unspecified trauma and stressor related disorder and unspecified neurocognitive disorder. The Veteran underwent a medical examination to evaluate the current severity of his mental disorder in May 2017. The examination report shows the Veteran’s mental diagnoses as unspecified trauma and stressor related disorder and unspecified neurocognitive disorder, which are a progression of his PTSD. The examination report indicates that the Veteran’s level of occupational and social impairment with regards to his mental diagnoses can be described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examination report shows that his trauma and stressor related disorder causes mild impairment. The Veteran’s neurocognitive disorder was noted to cause mild to moderate impairment. The examination report demonstrates that the Veteran experienced significant memory issues during the interview, presented with symptoms of depression, and that depressed mood, chronic sleep impairment, impairment of short and long-term memory, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work-like setting are symptoms related to his mental diagnoses. The examination report also shows that the Veteran reported symptoms of hypervigilance, irritability and intrusive memories. The Veteran submitted private treatment records that show treatment for his mental diagnoses. A June 2017 private treatment record shows that the Veteran was alert and oriented, his speech was normal, his affect was dull, he had no flight of ideas or looseness of association, and he denied any auditory, visual, or tactile hallucinations. The treatment record also indicates that the Veteran denied suicidal or homicidal thoughts, or any self-injurious behavior, and reported no delusions. Lastly, the treatment record shows that the Veteran has problems with his memory. A private March 2017 initial psychiatric assessment demonstrates that the Veteran reported anger issues, problems with his memory, intimacy issues with his spouse, loss of interest in people and formerly enjoyable activities, and that his symptoms impact his friendships. The mental status examination shows that the Veteran’s speech was normal, his affect was dull, he had no flight of ideas or looseness of association, and he denied any auditory, visual, or tactile hallucinations. The examination also indicates that the Veteran denied suicidal or homicidal thoughts, or any self-injurious behavior, and reported no delusions. The assessment of functioning is noted as significant symptom-related distress or functional impairment (e.g., social, occupational). The Board finds that the May 2017 examination report more probative than the March 2017 initial psychiatric assessment concerning the assessment of the Veteran’s level of occupational and social impairment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The March 2017 assessment does not indicate the symptoms that contribute to social or occupational impairment nor does it advise of the level of social and occupational impairment. Further, as will be discussed below, the May 2017 examination report and private treatment records show that the Veteran’s occupational impairment is most closely linked to left arm pain, hand coordination, and cervical blockage surgery. The Veteran’s VA treatment records do not contain evidence that shows that the Veteran experiences symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a disability rating in excess of 50 percent, or a level of occupational and social impairment corresponding to that disability rating that results from those symptoms. Specifically, the competent evidence of record does not show that the Veteran’s symptoms manifest 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; spatial disorientation; neglect of personal appearance and hygiene; or that his symptoms produce occupational and social impairment, with deficiencies in most areas. Accordingly, the Veteran’s unspecified trauma and stressor related disorder and unspecified neurocognitive disorder symptoms and the resultant level of occupational and social impairment do not satisfy the criteria for a 70 percent rating or higher. Thus, his unspecified trauma and stressor related disorder and unspecified neurocognitive disorder does not more nearly approximate the criteria for a disability rating higher than 50 percent. In sum, the preponderance of the evidence weighs against assignment of a rating in excess of 50 percent for the Veteran’s unspecified trauma and stressor related disorder and unspecified neurocognitive disorder. Consequently, the benefit-of-the-doubt rule does not apply and a rating in excess of 50 percent for the Veteran’s unspecified trauma and stressor related disorder and unspecified neurocognitive disorder is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. 2. Entitlement to a total disability rating based on individual unemployability(TDIU) due to service-connected unspecified trauma and stressor related disorder and unspecified neurocognitive disorder is denied. Total disability will be considered to exist 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. § 4.15. To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making such a determination, 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). Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age. See 38 C.F.R. §§ 3.341(a), 4.16(a). If unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. The criteria for schedular consideration of entitlement to TDIU rating are not satisfied as the Veteran’s lone service connected disability, unspecified trauma and stressor related disorder and unspecified neurocognitive disorder, is rated at 50 percent. In the alternative, the evidence fails to establish that the Veteran’s service-connected unspecified trauma and stressor related disorder and unspecified neurocognitive disorder precludes a substantially gainful occupation. The Veteran’s VA Form 21-8940, Application for Increased Compensation Based on Unemployability, indicates that the Veteran’s service-connected PTSD prevents him from securing or following any substantial gainful occupation, that he last worked February 2, 2016, that he worked at the Central Barber Shop as a barber from 1995 to 2016, and that he completed high school and some college coursework. The May 2017 examination report indicates that the Veteran’s level of occupational and social impairment with regards to his mental diagnoses can be described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Additionally, the examination report demonstrates that the Veteran has not worked since last year because he had problems with the coordination of his hands, which is related to the problems with his cervical vertebrae. The Veteran’s private treatment records show that he stated that he was forced to stop working due to left arm pain and that he underwent cervical blockage surgery in March 2016. As noted above, while the March 2017 initial psychiatric assessment determined that the Veteran has significant symptom-related distress or functional impairment (e.g., social, occupational), but the more probative evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected unspecified trauma and stressor related disorder and unspecified neurocognitive disorder. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. (Continued on the next page)   Therefore, the criteria for a TDIU rating are not met. In sum, the preponderance of the evidence weighs against assignment of a TDIU rating. Consequently, the benefit-of-the-doubt rule does not apply and assignment of a TDIU rating denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel