Citation Nr: 18154964 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-63 153 DATE: December 4, 2018 ORDER Entitlement to a rating in excess of 50 percent for other specified trauma and stressor related disorder (claimed as PTSD) is denied. Entitlement to individual unemployability is denied. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disability is not productive of total occupational and social impairment or of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. 2. The Veteran does not meet the schedular criteria for a TDIU and a referral of TDIU to the Director of the Compensation and Pension Service for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for other specified trauma and stressor related disorder have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2017). 2. The criteria for assignment of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to April 1969. See DD Form 214. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 1. Entitlement to a rating in excess of 50 percent for other specified trauma and stressor related disorder The Veteran contends that a rating in excess of 50 percent is warranted for his other specified trauma and stressor related disorder. The Veteran’s mental health disability is currently rated under Diagnostic Code 9413. Diagnostic Code 9413 of 38 C.F.R. § 4.130 specifically addresses unspecified anxiety disorder; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula for mental disorders, a 50 percent evaluation is warranted if the evidence establishes 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; and difficulty in establishing and maintaining effective work or social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted if the evidence establishes 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 worklike setting); or inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if the evidence establishes 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 oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The question for the Board is whether the signs and symptoms of the Veteran’s other specified trauma and stressor related disorder meet the criteria for a rating higher than 50 percent disabling. The Board finds that the most probative evidence of record establishes that the Veteran’s other specified trauma and stressor related disorder is not productive of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or total occupational and social impairment. The Veteran’s VA treatment records do not show any specific treatment for his mental conditions. A VA treatment record, dated in August 2014, indicates that the Veteran was active in church and was attempting to start his own Internet-based business. He reported no problems with mood or anxiety. An October 2014 private treatment record reveals a diagnosis of PTSD. The physician noted symptoms of sleep problems, nightmares, flashbacks, hypervigilance, suspiciousness, irritability, outbursts of anger, and memory and concentration problems. The physician noted that the Veteran has difficulty sleeping and that he experiences nightmares and intrusive recollections of his time in service. The physician also noted that the Veteran has hypervigilance, anger issues, irritability, outbursts of anger, memory loss, and concentration problems. The physician cited that these issues caused him to retire because he was about to be demoted for his inability to focus, concentrate, and remember information he needed to pass a required examination. The physician also noted that the Veteran is withdrawn from others and is hopeless about the improvement of his condition. A November 2014 VA treatment record indicates that he denied anxiety, depressed mood, homicidal ideation, and suicidal ideation. Also, in a November 2014 VA treatment record, the Veteran reported that he had difficulty with memory since a stroke in 1982. The Veteran was afforded a VA examination in November 2014. The examiner noted that the Veteran’s speech was within normal limits, his affect was appropriate, his thought processes were logical and that he was alert, attentive, and oriented to person, time, and situation. The examiner also noted that the Veteran’s attention and concentration appeared adequate, that his recall abilities were intact, and that his remote memory abilities appeared intact. The Veteran did not exhibit delusions or hallucinations. At the time of the examination, the Veteran reported that his current symptoms included, but were not limited to irritability with angry outbursts, difficulty concentrating, sleep disturbance, exaggerated startle response, intrusive thoughts, and hypervigilance. Regarding occupational functioning, the Veteran stated that he had a 30-year career with the fire department and he had to retire, rather than being demoted or fired, after he could not pass a test related to fire inspector duties. The Veteran noted that the examination was 200 questions and that he had four hours to complete it. He noted that he was unable to pass the test, noting that it was an intense pace for so many questions and that the time pressure and amount of information was not relevant to the actual job. The Veteran also attributed his performance on the test to his problems with concentration, attention, and memory. He also recalled that he was told that if he could not pass the test, he would be demoted or fired. He further stated that every other fire captain passed the test without a problem, with the exception of one who passed on the second or third try. The Veteran reported that he had been married for 27 years and that they get along well, but sometimes he will make her cry due to some of the things that he says. He also stated that while he does not have close friends, he has acquaintances and associates from church. He also has children which he does not see since they live out of state, but he visits his mother in a nursing home about two to three times a week. The Veteran reported that since his retirement, he has become more involved with his church, becoming involved in the choir and on the deacon board. The Veteran also reported that he had some problems getting along with some members, because they “do not appreciate what he is trying to do.” He also stated that he was trying to start a non-profit organization through his church. The examiner opined that the Veteran has occupational 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. In an August 2015 statement, the Veteran’s private physician stated that the Veteran had been her client since October 2014 and that the Veteran was diagnosed with PTSD. The physician also stated that the Veteran continued to report problems sleeping and that his symptoms included that of irritability, social isolation, memory loss, hypervigilance, and impulse control. The Veteran was afforded a VA examination in November 2016. The examiner noted a diagnosis of other specified trauma and stressor related disorder, and again noted that the Veteran did not have PTSD as he did not meet Criterion D or E. The Veteran reported distress when exposed to triggers of military trauma and avoided external reminders and thoughts and memories associated with his tour in Vietnam. The Veteran also reported sleep disturbances associated with his 30-year career as a firefighter, which involved having to sleep lightly in order to respond to alarms. At the time of the examination, the Veteran did not describe or report symptoms consistent with a depressive disorder and he denied continuous depressed mood. The examiner noted that the Veteran’s thinking was logical and organized and that there was no evidence of problems with his communication or concentration. The Veteran reported that he had not received any VA mental health treatment, but that he saw a community psychologist once every six months to talk. The examiner noted that the Veteran’s mental health symptoms appeared to be mildly impacting his level of functioning. In terms of social functioning, the examiner stated that the Veteran was married to his second wife, of 29 years, and that his marriage was stable with no serious conflicts. The Veteran described maintaining numerous meaningful interpersonal relationships, including with his mother, his children, his grandchildren, his siblings, and church members. The Veteran also reported that he and his wife bought a timeshare, hoping to get the family together for vacations. The Veteran further reported that he is heavily involved in his church, serving as a deacon and participating in community outreach projects. The examiner noted that there was no evidence of problems with routine behavior, self-care, or conversation. In terms of occupational functioning, the examiner noted that two years prior, following the Veteran’s 30-year career as a firefighter and fire chief, he began the process of starting his own Internet-based business, a website providing information about local churches. He described problems getting other churches involved in the online project. When asked why he could not resume working for the fire department, the Veteran reported that he could not pass the fire inspector test and could no longer physically do the job. The Veteran did not identify mental health symptoms that interfered with his work duties in the past or with his recent efforts to start an Internet-based business. The examiner noted that his other specified trauma and stressor related disorder did not prevent him from completing physical labor tasks, such as lifting, pulling, or pushing. Further, the examiner stated that his disorder did not prevent him from completing sedentary tasks such as answering phones, filing papers, or other desk positions. The examiner also noted that the Veteran’s distress at exposure to cues, avoidance, and sleep problems only mildly impacted his ability to complete work-related tasks during periods of significant stress. The examiner also opined that the Veteran would best be suited in a position that involves structured, yet autonomous work. The examiner opined that the Veteran had 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 or symptoms controlled by medication. Three days following the November 2016 VA examination, the Veteran’s private physician submitted a statement, also dated in November 2016. The private physician noted that the Veteran’s mental health condition had worsened. The clinician noted that the Veteran gets easily irritated with others, has to take time to be alone every day, and is difficult to get along with. The clinician also noted that the Veteran tends to self-isolate and that his concentration and memory were bad. The clinician also stated that the Veteran’s wife must attend his doctor’s appointments with him because he cannot remember appointments, understand information, and is unable to complete tasks, such as getting wrong items at the grocery store even when he has a list. The clinician further noted that while the Veteran tried to unsuccessfully start several businesses, it was of her professional opinion that he was unemployable and had been since he was forced to retire in 2002. Here, the Board finds that the Veteran’s mental health disorder is appropriately as 50 percent disabling. In this regard, the Board affords the reports of the private physician less probative weight as the evidence of record, to include the Veteran’s own reports, are at variance with the conclusions reached in the private treatment reports. Specifically, with regard to social impairment, the Veteran has reported that he has established and maintained effective relationships, to include those with his wife in a decades-long marriage, mother, his children, his grandchildren, his siblings, and church members. He further did not describe any deficiencies in family relations. Additionally, the Veteran has noted that he attends church regularly and was quite involved with various ministries. Thus, the record does not reflect that the Veteran’s mental health symptoms prevent him from maintaining relationships with others. With regard to occupational functioning, the Veteran has contended that his mental health symptoms have precluded him from working. Here, the November 2016 VA examiner noted that his mental health symptoms only mildly impacted his ability to function. At the examination, the Veteran reported that he retired due to not being able to pass a certification examination and due to the physical rigors of the job. Further, the Veteran reported that he attempted to start an Internet-based business following his retirement and did not cite his mental health disorder as the reason for abandoning this business. Additionally, the medical evidence of record shows adequate judgment, normal speech, and logical thought processes. The evidence also does not reflect obsessional rituals which interfere with routine activities, intermittently illogical speech, near-continuous panic or depression, periods of violence, spatial disorientation, difficulty adapting to stressful situations, neglect of personal appearance and hygiene, or the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The Board has acknowledged the Veteran’s lay statements, but concludes that the Veteran is not competent to determine the severity of his mental health disorder. Further, the Board acknowledges the Veteran’s contention regarding the probative weight that should be afforded his private physician. See February 2015 NOD. Specifically, in support of his contention, he cited to a prior Board decision, apparently, for precedential effect. However, Board decisions are not precedential and the undersigned is not bound by the determination of another Veterans Law Judge in another case for another Veteran, based on other evidence. See 38 C.F.R. § 20.1303 (2017). Although the record reflects that the Veteran may struggle with depression, disturbances of motivation and mood are specifically contemplated by the 50 percent rating he has been assigned. The record does not reflect that the Veteran’s difficulty with mood, however, is comparable to near-continuous depression that affects his ability to function independently, appropriately, and effectively. Additionally, the Board acknowledges the Veteran’s statements that he has impairments of memory; however, such are contemplated in the 50 percent rating currently assigned. Based on the foregoing, a rating in excess of 50 percent is not warranted for any distinct period during the pendency of this appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9413; see Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to TDIU The Veteran contends that his service-connected mental health disability prevents him from securing or following substantially gainful employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service- connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Court has held that in determining whether the Veteran is entitled to a total disability rating based upon individual unemployability neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 36 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. A total rating for compensation purposes based on unemployability will be granted when the evidence shows that the Veteran, by reason of his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341. In this case, the Veteran’s only service-connected disability, other specified trauma and stressor related disorder (claimed as PTSD), is rated at 50 percent. This rating does not meet the schedular requirement of 60 percent or more. Therefore, the question before the Board is whether referral of the TDIU issue for consideration on an extraschedular basis is appropriate. In addition, the Board finds that referral for extraschedular consideration of a TDIU is not warranted. In a February 2015 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran noted that he worked from 1973 to 2002 as a firefighter. He noted that his mental health disability prevents him from securing or following any substantially gainful occupation and that he left his job due to his mental health disability. The Veteran also stated that he obtained his Associate’s degree and a Bachelor’s degree in Criminal Justice after his military service. He denied additional education or training. The Veteran further reported that he had not tried to obtain employment since he became too disabled to work. The Veteran’s private physician, in October 2014, August 2015, and November 2016, concluded that the Veteran’s mental health disorder contributed to problems in his work. Also, the physician specifically stated that although the Veteran has tried unsuccessfully to start businesses, he cannot find employment and has been unemployable since he was “forced to retire in 2002.” The rationale provided for the opinion was that the Veteran gets easily irritated with others, self isolates, and cannot remember appointments or understand information. On balance, a November 2014 VA examiner concluded that the Veteran’s service-connected mental health disorder was indicative of occupational 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. A November 2016 VA examiner noted an improvement in the Veteran’s service-connected mental health disorder and concluded that such was indicative of occupational and social impairment due to mild and transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. When asked why he believed himself to be unemployable, the Veteran stated that he could not pass the fire inspector test now or do his job physically. While acknowledging that the Veteran’s distress at exposure to cues, avoidance, and sleep problems could mildly impact his ability to complete work-related tasks during periods of significant distress, the November 2016 VA examiner also concluded that the Veteran’s mental health disorder did not prevent him from completing physical labor tasks such as lifting, pulling, or pushing or from completing sedentary tasks, such as answering the phones, filing papers, or other desk positions. In both VA examinations, it was noted that the Veteran’s symptoms did not affect his reliability, productivity, ability to concentrate and follow instructions, or ability to interact with co-workers and supervisors, and that he has no impairment of long or short-term memory, judgment, abstract thinking, as well as personal appearance and self-care. The Board acknowledges the private opinions that state that the Veteran is unemployable. However, the private physician did not explain why his service-connected mental health disorder limitations extended to both sedentary and physical employment. There is also no mention that the Veteran was limited in maintaining meaningful relationships, leaving his home for church, using a computer keyboard, navigating the Internet and being computer literate, answering a telephone, or managing personal affairs. Notably, the Veteran reported himself that he ceased employment as a fire chief because he could not pass a certification examination and due to physical limitations, not related to his service-connected mental health disorder. Further, the evidence of record reveals that the Veteran was not fired from his position as a fire chief. Instead, the Veteran retired due to him facing a possible demotion once he did not pass the examination, which he took one time rather than numerous times as another fire chief did. The Board recognizes that the Veteran’s service-connected other specified trauma and stressor related disorder could impact some of his abilities to complete work-related tasks, as indicated by the November 2016 VA examiner, but the evidence does not show that his symptoms preclude all sedentary and physical activities, required for gainful employment. To the extent his service-connected disabilities do affect the Veteran’s employability, the schedular ratings assigned for his various disabilities already compensate him for such impairment. Thus, referral for extra-schedular consideration of a TDIU rating is not warranted. 38 C.F.R. § 4.16 (b). Given the above, the Board finds the preponderance of the evidence does not support a finding that the Veteran would be unable to pursue similar employment due to functional limitations caused by his service-connected mental health disorder. As such, referral for extraschedular consideration for a TDIU under 38 C.F.R. § 4.16 (b) is not appropriate in this case. As the Veteran does not meet the schedular requirements for a TDIU and referral is not appropriate in this case, entitlement to TDIU must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel