Citation Nr: 18157022 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-32 592 DATE: December 11, 2018 ORDER Entitlement to a higher initial rating of 50 percent for service-connected posttraumatic stress disorder (PTSD) is granted. 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 results in occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective social relationships. 2. The Veteran is service-connected for the following disabilities: PTSD, increased to 50 percent disabling; coronary artery disease, rated as 30 percent disabling; and bilateral tinnitus, rated as 10 percent disabling. 3. There is no persuasive evidence of record that shows that the Veteran’s service connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating of 50 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for a TDIU rating are not met. 38 C.F.R. §§ 3.102, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1967 to February 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. A Notice of Disagreement (NOD) was received in September 2015. A Statement of the Case (SOC) was issued in June 2016. A substantive appeal (VA-Form-9) was filed in July 2016. I. Increased Rating for PTSD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2017). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The symptoms listed in DC 9411 are not intended to 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). 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 or circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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 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); and 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; and memory loss for names of close relatives, own occupation, or own name. Throughout the rating period on appeal, the Veteran's PTSD has been evaluated as 30 percent disabling. The Veteran reported no history of mental health treatment until February 2015. A February 2015 medical examination by H.J., MD confirmed the Veteran has PTSD and major depressive disorder, moderate to severe, without psychotic features. He was prescribed 50 mg of sertraline (Zoloft) and 50 mg of trazodone hydrochloride for anxiety and depression in February 2015 and is currently prescribed psychiatric medications. The Veteran reported witnessing a great deal of death and injuries during his service in Vietnam. He also reports that he has had sleep problems since service and that he sleeps separately from his wife due to nightmares. He experiences flashbacks, nightmares of his service in Vietnam, and nightsweats. He performs perimeter checks of the security of his home. The Veteran reflected “I can make friends but I can’t keep them.” However, the Veteran stated that his relationship with one of his daughters is good and that they communicate while he does not have the same relationship with his other daughter. He also states that his memory has become problematic as he often forgets things and becomes easily distracted. As such, he states that he depends on his wife to remind him of many things. The Veteran reported that he started to drink after his service in Vietnam and continued for 20 years but stopped on his own at some point. He tended to engage in isolative behavior. He had sometimes had suicidal thoughts but he would not take any action on those thoughts. Further in the report it was noted that when asked about suicide, death wishes, passive or active the Veteran indicated that he thought about killing himself every few months, especially when he was severely depressed and stressed. The February 2015 medical mental status exam showed that the Veteran appeared at the examination casual attired. He was cooperative and generally able to relate to the examiner. He had a blunted affect with “psychomotor retardation.” He answered the questions appropriately without being spontaneous. He demonstrated no aphasia or dysarthria. His vocabular was high school level. The tone and volume of his speech was normal; his speech was not pressured. In regard to mood, he reported anxiety, depression, and hyper arousal symptoms. His affect was congruent to mood. In regard to thought process, there were no flight of ideas, no looseness of association, no circumstantial thought, and no perseveration. He did have thought blocking, word searching, and delayed thought. He denied any auditory, visual and tactile hallucinations; he reported seeing images of moving objects at the edges of his sight. There were obsessive thoughts about being safe. He denied any current suicidal or homicidal thoughts or any self-injurious behavior. There was no paranoia or delusions. The Veteran reported problems with his memory. He stated that his wife told him that he has been forgetting a lot. He was otherwise alert and oriented. A March 2015 follow-up medical examination confirmed that his symptoms of anxiety, hypervigilance, flashbacks when exposed to stressful situations, and nightmares continued as initially reported. His sleep was reported as “better due to the medications”. He denied any side effects of the medication and his medical problems were reviewed and reported by the Veteran as being the same. The mental status examination confirmed the Veteran’s general behavior as “cooperative with a blunted affect with psychomotor retardation”. His speech was normal in tone and volume. He continued to report anxiety and depression. The exam showed no flight of ideas, no looseness of association, no circumstantial thoughts and no preservation. The Veteran denied any auditory or visual hallucinations, and he denied suicidal or homicidal thoughts. Additional private medical examinations conducted in July 2015 and October 2015 revealed the same. The Veteran underwent a VA examination in July 2015 which confirmed that the Veteran had a diagnosis of PTSD with depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The level of occupational and social impairment caused by the PTSD was an 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. The Veteran’s appearance, speech, and eye contact were observed as appropriate and alert. The Veteran’s competency level was recorded as being able to manage his financial affairs. The Veteran was behaviorally observed as having a thought process and memory within normal limits, and there were no delusions or hallucinations and no presence of suicidal or homicidal thoughts. Given all of the above, the Board finds that the Veteran’s PTSD results in functional impairment that more nearly approximates the symptomatology associated with a 50 percent evaluation but no higher. The July 2015 VA examiner found that the Veteran’s PTSD symptoms were productive of overall occupational and social impairment of 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 normal which is consistent with a 30 percent rating. The VA examiner further indicated that the Veteran’s symptoms primarily consisted of depressed mood, anxiety, suspiciousness, panic attacks, and chronic sleep impairment, which are also symptoms consistent with a 30 percent rating. The VA examiner, however, also indicated that the Veteran had disturbances of motivation and mood and the private examination reports show that the Veteran has difficulty establishing and maintaining effective social relationships, which are symptomatology associated with a 50 percent rating. Thus, a 50 percent rating is appropriate. There, however, is no persuasive evidence that the Veteran exhibits deficiencies in most areas such as work, school, family relations, judgement, thinking, or mood due to such symptoms as, suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, near-continuous panic or depression, neglect of personal appearance and hygiene, or inability to establish and maintain effective relationships as contemplated by a 70 percent rating. There is also no persuasive evidence that the Veteran has total occupational and social impairment due to gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior or persistent danger of hurting self or others, inability to perform activities of daily life, and memory loss for names of close relatives or own name as contemplated by a 100 percent rating. There is no persuasive evidence that the Veteran exhibits speech difficulty, memory impairment, or impaired judgment/thinking as contemplated by a higher rating. The July 2015 VA examination showed that the Veteran’s behavior was observed as exhibiting a “thought process within normal limits.” The Veteran reported that his wife had to remind him of things but the examiner recorded his memory as being “within normal limits.” The Veteran also remains married to his only wife of over 40 years. He maintains a relationship with one of his daughters. He also claimed in a 2015 medical treatment record that he sees his brother quite often and his sister two to three times per year. He also maintained employment at the same establishment for many years. Thus, while the Veteran denied any friendships outside of his marriage he retains the residual ability to form effective relationships, and he is capable of establishing and maintaining effective work relationships. The Veteran has reported a history of suicidal ideations but indicated that he was not currently suicidal at the February 2015 examination and denied such symptoms at all examinations thereafter. Thus, the frequency, severity, and duration of the symptoms are not on the level contemplated in a 70 percent rating or higher. To the extent the Veteran’s report that he constantly checks the safety of his home may be construed as obsessional, such ritual has not been persuasively shown to interfere with routine activities. The Veteran maintained steady employment for decades. There is no indication that he is not capable of functioning independently, appropriately and effectively, or that he neglects his personal appearance, or that he is unable to perform the activities of daily living. The VA examiner assessed that he was competent to manage his financial affairs. The Veteran has been observed to have an “appropriate and alert” oriented general appearance. Thus, entitlement to an even higher rating is not shown. In so finding, the Board notes that with regards to the Veteran's assertions, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is competent to describe current symptoms, such as depression, anxiety, irritability, decreased social interactions, etc. However, as to the severity of the Veteran's PTSD the Board finds such subject matter to be complex in nature and beyond the competence of a lay person. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the greatest weight is placed on the examination findings in regard to the type and degree of the Veteran's impairment. II. TDIU Total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service-connected disabilities combine to a disability rating of 70 percent or greater. Id. While the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, 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. See 38 C.F.R. 4.16(a); supra. In determining whether a Veteran is entitled to a TDIU, neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. With regards to the Veteran, service connection is currently in effect for PTSD (increased to 50 percent disabling effective January 21, 2015 as the result of the decision herein), coronary artery disease rated as 30 percent disabling effective February 24, 2015, and bilateral tinnitus rated as 10 percent disabling effective March 19, 2018. The Veteran meets the schedular rating for a TDIU, but only for the period effective February 24, 2015. Despite the schedular requirements, 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(b). Where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), however, the Board has no authority to assign a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance, and must first refer the claim to the Director of Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In VA Form 21-8940 dated in August 2015, the Veteran reported that his PTSD renders him unemployable. He indicated that he last worked full-time on December 31, 2008. He indicated that he last worked for Wilkinson Cadillac as a clerk for 45 hours per week from “2003 to 2008.” He did not provide information requested pertaining to earnings and time lost from illness. He had not tried to obtain employment since he contends that he became too disabled to work. He had a high school education. In VA Form 21-4192, the Veteran’s former employer Wilkinson Automotive reported that the Veteran’s employment began in May 1978 and ended December 30, 2008. The Veteran’s earnings were reported and time lost in the last year due to disability was noted as 30 days. It was reported that the Veteran worked as a “Parts Manager.” He worked 25 hours a week. In response to the section “Concessions (if any) made to employee by reason of age or disability” it was noted that the Veteran was allowed to work part-time. The reason for termination was noted as “retired.” The Board finds that the evidence of record does not persuasively show that the Veteran's PTSD renders him unemployable. The Board is not persuaded that the Veteran retired from his job because of his PTSD or that his PTSD has prevented him from reentering the workforce since his retirement. The Veteran’s treating psychiatrist Dr. H.J. has not described the Veteran’s PTSD as causing total occupational impairment. The VA examiner indicated that the Veteran’s PTSD was shown to only potentially cause occasional decrease in work efficiency. Despite the Veteran’s symptoms he maintained employment with the same establishment for decades. The positions held show the Veteran has a skill set capable of performing the mental acts required for gainful employment. The Veteran’s long and consistent work history suggests he has residual ability to concentrate, be at the appropriate place on time, complete tasks, meet deadlines, follow instructions, maintain proper parts inventory levels, utilize office equipment including computers for inventory, recordkeeping, and parts information, analyze inventory reports, etc. Thus, the Veteran is not shown to be incapable of performing the acts required by employment. Accordingly, the Board finds that the Veteran's service-connected PTSD does not prevent him from securing and following a substantially gainful occupation. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. C. Roberson, Law Clerk