Citation Nr: 18155872 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-09 405 DATE: December 6, 2018 ORDER Entitlement to an initial disability rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD) and depressive disorder [herein PTSD] is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, to include symptoms of hypervigilance, exaggerated startle response, decreased concentration, sleep disturbances, social isolation, mild memory loss, and anger. 2. The Veteran did not return a completed VA Form 21-8940 to support his claim and there is no indication in the competent and credible evidence of record that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.4, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 5110 (a), 5107(b) (2014); 38 C.F.R. §§ 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1968 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for PTSD (and depressive disorder) and assigned a 30 percent disability rating, effective March 2012. The Veteran testified at a July 2014 Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In addition, a claim for a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). In this case, evidence of record (discussed further in the remand section below) suggests that the Veteran’s service-connected PTSD currently on appeal may interfere with his ability to secure or follow a substantially gainful occupation. As such, a claim for a TDIU is properly before the Board. In June 2015, the Board remanded the claims for further development. Increased Rating The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD The Veteran contends that his PTSD is more disabling than reflected by the 30 percent rating currently assigned. The Veteran’s PTSD has been evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130. The General Rating Formula for psychiatric disabilities provides that occupational and social impairment with 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, and recent events) is rated 30 percent disabling. 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 and social relationships is rated 50 percent disabling. 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); and inability to establish and maintain effective relationships is rated 70 percent disabling. 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; and memory loss for names of close relatives, own occupation, or own name is rated a maximum 100 percent disabling. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). VA will also consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Veteran was initially diagnosed with PTSD in October 2012. Subsequently, the Veteran was afforded a VA examination in November 2012, at which time the examiner noted diagnoses of PTSD and depressive disorder NOS. The Veteran endorsed symptoms of depressive thoughts, memory problems, reduced concentration, diminished interest, poor sleep, hypervigilance, nightmares, and flashbacks. The examiner noted that the Veteran’s level of occupational and social impairment was best summarized as occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. A March 2013 mental health note reveals that the Veteran had stable symptoms despite recent unemployment. A June 2013 mental health note reveals that the Veteran had been keeping himself busy with several household projects, to include starting a garden and visiting his friend in Pennsylvania to help with his vineyard. The Veteran reported having frequent nightmares several times a week, which resulted in accidental hitting of his wife in his sleep. The Veteran reported that his mood was “okay.” A June 2014 mental health note reveals that the Veteran had a stable mood and sleep patterns. At the July 2014 hearing, the Veteran testified that his symptoms had worsened. He also testified that his medication had been reduced and that “things are really a lot worse than they were.” Specifically, he testified that he had panic attacks “maybe once or twice a week.” He further testified that he rarely leaves the house, and that he prefers to socialize solely with Vietnam Veterans. and that he only socialized with fellow Veterans. He also testified that he sometimes feels that he is going to explode and that his PTSD has put a strain on his marital relationship. The Veteran also testified as to concentration problems and short-term memory impairment; he did not endorse that his long-term memory was impaired. A June 2015 mental health note reveals that the Veteran reported stable symptoms and that he used medication on occasion for sleep and anxiety. The physician noted that the Veteran was dressed casually, had fair eye contact, and was pleasant and cooperative. The physician also noted that his speech was intact and fluent, affect was euthymic, and that he denied suicidal ideation, homicidal ideation, hallucinations, delusions, and paranoia. A September 2015 mental health note reveals that the Veteran was more depressed and exhibited a lack of motivation, energy, and focus. In an October 2015 mental health note, the Veteran reported that his mood and energy level had improved. The Veteran reported that he listed his house for sale and was hoping to move to manage a vineyard by the end of the year. The Veteran also reported a stable mood, anxiety, energy, sleep, and appetite. He further noted that he was compliant with his medications and denied any side effects. Regarding his prescribed medication, a treatment report, dated in January 2016, revealed that the Veteran continued to meet the criteria for PTSD and depression, but that “otherwise, he is reporting stable mood, anxiety, sleep, and appetite. Compliant with his medications and denies side effects or excessive usage.” In light of the Veteran’s allegations of possible worsening, the Veteran was afforded a VA examination in March 2016 to assess the severity of his condition. Upon examination, the examiner noted diagnoses of PTSD and unspecified depressive disorder. The examiner stated that the Veteran arrived on time, was appropriately dressed, was pleasant and cooperative, and that his speech, thought processes, judgment, and insight were clear and intact. The examiner noted that the symptoms specific to his PTSD included nightmares, intrusive thoughts, avoidance of thoughts and people associated with trauma, hypervigilance, and exaggerated startle; the symptoms specific to his depression included a depressed mood. The Veteran also endorsed sleep disturbances, lack of concentration, and anhedonia. The examiner opined that the Veteran’s current level of occupational and social impairment, with regards to all mental disorders, was occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner specifically noted that there had been no change in the Veteran’s social function upon examination and that he endorsed a positive relationship with his wife, step-son, and grandchildren. The Veteran reported that anxiety and anhedonia result in mild social impairment. The examiner also noted that there had been no change in his occupational function as the Veteran enjoyed working in his friend’s vineyard. The Veteran endorsed mild occupational impairment. Further, the Veteran denied any social or occupational impairment related to his alcohol use, despite his admission that he drinks more than he should. In an April 2016 mental health note, the Veteran reported that his mood was better. The physician noted that the Veteran’s affect was constricted and mood was congruent. His thought process was linear and logical. He denied suicidal and homicidal ideation, paranoia, and delusions. Upon review of the evidence, the Board finds that the Veteran’s service-connected PTSD is appropriately rated at 30 percent rating. Specifically, the evidence demonstrates that his psychiatric disability has been manifested by symptoms of hypervigilance, exaggerated startle response, decreased concentration, sleep disturbances, social isolation, mild memory loss, and anger. However, a higher rating is not warranted because the Veteran’s symptoms are not of the frequency, severity, or duration such that they produce occupational and social impairment with reduced reliability and productivity. Although the Veteran has endorsed occasional panic attacks in excess of once a week, disturbances of motivation and mood, and some difficulty in establishing and maintaining effective work relationships, the evidence, as a whole, fails to show that the Veteran’s symptoms equate in severity, frequency and duration to occupational and social impairment with reduced reliability and productivity. See Vazquez-Claudio v. Shinseki. The Veteran has maintained effective friendships and family relationships; has enjoyable hobbies, to include gardening and working at his friend’s vineyard; and he does not exhibit difficulties with long-term memory, complex tasks, judgment, or thinking. The Veteran has also consistently denied homicidal or suicidal ideation and there has never been a notation of a neglect of personal appearance and hygiene. Thus, in light of the evidence, the Board finds that the preponderance of the evidence does not support a disability rating in excess of 30 percent. 2. Entitlement to TDIU A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017). If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). The Veteran is currently service connected for PTSD (30 percent), bilateral hearing loss (10 percent), tinnitus (10 percent) and a residual neck scar (10 percent). The Veteran’s combined evaluation for compensation is 20 percent from December 5, 2007 and 50 percent from March 14, 2012. As such, the Veteran does not meet the schedular criteria. The Board also does not find that referral to the Director of Compensation Service for extraschedular consideration is warranted in this case as the Board concludes that the Veteran is not unable to attain or maintain substantially gainful employment due to his service-connected disabilities. At the outset, as noted above, the Veteran was asked to provide information regarding employment and educational history by submitting a completed VA Form 21-8940 in March 2016. The Veteran did not supply this evidence, which would be directly relevant to his claim. Moreover, although the precise dates of employment are not of record, the record reflects the Veteran previously worked for four months as a driver at a medical transport company and is currently employed at his friend’s vineyard. Additionally, the competent evidence of record does not reflect that the Veteran’s service-connected disabilities have had a significant impact on his ability to obtain and maintain employment. Further, the Board notes that the Veteran has not asserted, and the record does not suggest, that his service-connected residual neck scar has affected his ability to work. Instead, he has specifically asserted that his psychiatric disorder and hearing impairments have affected his ability to work. Specifically, he testified that due to his hearing disabilities, he left his job as a mechanic and did so before they decided to medically retire him. He also testified that he recently worked for a medical transport company, but that he did not get along with the clients and that the hours were long, the pay was inadequate, and that the company was extremely unorganized. He attributed that the job did not work out due to his PTSD. In a May 2012 audio examination, the examiner noted that the Veteran’s hearing loss impacted ordinary conditions of daily life, including the ability to work. Specifically, the Veteran reported that his hearing had changed a bit. The examiner opined that the Veteran’s tinnitus did not impact ordinary conditions of daily life, to include the ability to work. To date, the Veteran has not alleged worsening of this condition. In March 2016, the Veteran was afforded a VA mental health examination. The examiner opined that his PTSD contributes to only mild occupational impairment. The examiner further noted that the Veteran was able to engage in successful employment if the environment is an appropriate match including having autonomy, predictability, and is in an area of his interest and experience. While the examiner further stated that the Veteran’s previous difficulties as a driver at the medical transport company were related to the circumstances of the position, rather than to his mental health condition, as the representative has pointed out, there is no rationale for this finding provided by the examiner. Therefore, it is afforded little probative value. What is more informative is that upon that examination, the Veteran reported only mild occupational and social impairment. Having reviewed the evidence of record, the Board finds that the Veteran is not unable to secure and obtain substantially gainful employment due to his service-connected disabilities. The record does not reflect that the Veteran is currently unemployed due to his service-connected psychiatric disorder. The Board acknowledges the Veteran’s testimony at the July 2014 hearing that he left his medical transport company job due to his PTSD. However, other statements of record by the Veteran, notably made at the July 2014 hearing, indicate that the job was stressful due to it being unorganized and unstructured. Additionally, the Veteran reported that some people were nice, but that the job drove him crazy, attributing such to the long hours and subpar pay. While the Board is not asserting that the Veteran’s psychiatric issues had no effect on his decision to leave the job, when considering the overall record, to include additional testimony made by the Veteran, it does not support that he retired due specifically to his service-connected psychiatric symptoms. Furthermore, the record does not reflect that the Veteran is currently unemployed due to his service-connected psychiatric disorder or hearing disabilities. Instead, the Veteran’s treatment records reflect that the Veteran is currently working at a friend’s vineyard, and he did not endorse to any physician that he was prohibited from doing so based on his service-connected disabilities. Notably, in the March 2016 PTSD examination report, the Veteran stated that the position at the vineyard was beneficial, that he enjoyed the work and was comfortable in the setting, and this his psychiatric symptoms improve when he is able to be productive. Also, the Board acknowledges that the March 2012 examiner noted that his hearing loss affected his daily activities, to include his ability to work; however, the Board affords this opinion less probative weight as to complete unemployability as the Veteran has not endorsed that his hearing difficulties affected his ability to work at the medical transport company or at his friend’s vineyard. Based on the evidence of record, the Board finds that the Veteran’s service-connected psychiatric disorder and hearing disabilities do not render him unable to secure or maintain substantially gainful employment. The evidence of record supports a finding that the Veteran, without regard to advancing age and nonservice-connected disabilities, is capable of performing the physical and mental actions required by employment. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel