Citation Nr: 18157059 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-53 929 DATE: December 11, 2018 ORDER A 30 percent rating, but no more, for posttraumatic stress disorder (PTSD) is granted subject to the payment of monetary benefits. A total disability rating for individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran had active service from January 1969 to December 1972. 2. For the entire period on appeal, PTSD was manifested by chronic sleep impairment, nightmares, feelings of depression and isolation, anxiety with intrusive thought, flashbacks, irritability and anger, concentration and memory problems, hypervigilance, exaggerated startle response, crying spells, and occasional panic attacks. 3. The Veteran has an associate degree, past relevant work experience as a clerk, and stopped working in 2011 after which he retired. 4. The Veteran has been granted service connection for PTSD at 30 percent, tinnitus at 10 percent, and a noncompensable rating for bilateral hearing loss, for a combined rating of 40. 5. Service-connected disabilities alone do not preclude the Veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no more, for PTSD have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. All psychiatric disabilities, including PTSD are evaluated under a General Rating Formula for Mental Disorders (“General Rating Formula”). Under the General Rating Formula, a 30 percent rating is warranted for 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 occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran claims his PTSD symptoms warrant a 70 percent rating. Treatment notes, VA examinations, and lay affidavits are all evidence of record detailing his PTSD symptomatology for the appeals period. A November 2013 VA examiner diagnosed the Veteran with chronic PTSD. The Veteran reported he had difficulty sleeping, intrusive memories and nightmares, had occasional mild anhedonia, low energy, depressed mood, crying spells, lack of appetite, lack of motivation, and that the mild depressive symptoms started when he retired in 2011. The examiner further noted that his symptoms included chronic sleep impairment, suspiciousness, and anxiety. The examiner concluded that due to his reported symptoms, PTSD appeared to cause no more than mild and transient impairment in social and occupational functioning, or equivalent to a 10 percent rating. A June 2016 VA examiner found PTSD caused a similar level of impairment. The Veteran reported or the examiner noted symptoms of recurring memories and dreams, avoidance efforts of memories, anhedonia, detachment from others, hypervigilance, exaggerated startle response, anxiety, and chronic sleep impairment. The examiner specifically recorded the lack of noticeable depression, aggression, or paranoia. The Veteran also stated he had some thoughts of death three years earlier, as shown in a January 2013 VA treatment record, but had no suicidal ideations since. The examiner concluded that the symptoms caused occupational and mild social impairment due to mild or transient symptoms, which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or again, equivalent to a 10 percent rating. The Veteran and his wife submitted affidavits in August 2018 with long lists of symptoms caused by PTSD. The symptoms listed were: impaired ability to maintain family relationships; detachment; confrontational behavior; difficulty with authority; road rage; difficulty handling everyday stress; impaired ability to manage stressful circumstances; difficulty managing changes in schedule; hypervigilance; paranoia; depression; disturbed sleep; nightmares; exhaustion due to lack of sleep; flashbacks; exaggerated startle response; panic attacks; difficulty driving due to flashbacks; crying spells; impaired ability to express emotions; avoidance of crowds; avoidance of public spaces; near total social isolation; worst case scenario thinking; controlling behavior; temper; losing sense of time and purpose; poor memory; low motivation; low mood; loss of interest; and difficulty trusting others. Almost all of these symptoms are to some extent supported by the medical evidence. However, the majority of these symptoms and their corresponding functional impact do not correspond to the 70 percent rating to which he believes he is entitled. VA medical records from 2012 and throughout the appeals period consistently show low mood, difficulty sleeping, and anxiety, and an increase in symptoms tied to stressful family events. VA medical records show depressive symptoms increased when he was the executor of his mother’s estate, and proximate to his wife’s health concerns. VA providers throughout the appeals period have found that he had significant difficulties in the areas of social, occupational and family, rather than the mild or transient impact found by the two examiners. As noted above, in January 2013 he reported fleeting thoughts of suicide, but in VA medical records subsequent he denied any suicidal or homicidal ideation. Similarly, he noted visual hallucinations in May 2014 where he thought he could see what appeared to be a spider at the edge of his range of vision, however in the records preceding and following denied any visual or auditory hallucinations. While suicidal ideation and hallucinations are symptoms associated with higher ratings, they are not generally reflective of his symptomology throughout the appeals period. The Veteran also had treatment from non-VA sources, including group and individual therapy from 2014 to 2016. His treating therapist summarized his symptoms as insomnia, sadness, loneliness, feelings of depression and isolation, experiences of survivor’s guilt, anxiety with intrusive thought, flashbacks, irritability and anger, concentration and memory problems, hypervigilance and exaggerated startle response, with occasional panic attacks. The therapist summarized his PTSD symptoms as moderate to severe. The Veteran has been treated with medication, attended both group and individual therapy at the VA and outside, occasionally concurrently, to treat PTSD symptoms. The medical professionals treating the Veteran have found his PTSD symptoms to cause at least moderate occupational and social impairment. Further, the symptomatology he has endorsed and is supported by medical records, includes depressed mood, anxiety, suspiciousness, less than weekly panic attacks, chronic sleep impairment, and some memory loss. These symptoms are all directly cited under the rating criteria for a 30 percent rating. As such, a 30 percent rating is warranted for the entirety of the appeals period. To the extent that the Veteran contends that an even higher rating is warranted, the evidence does not support the claim. Specifically, he has described panic attacks but not more than once per week. Further, the VA examiners and treating providers did not report an impairment of either judgment or abstract thinking, his affect and speech have largely has been documented as normal, and his memory loss has not been shown to be restricted to highly learned materials. In addition, the Veteran stated that twice in the five years before his August 2018 affidavit, he forgot where he was or was going while driving, rather than consistently being unable to drive to new locations. So, while some of his symptoms occasionally reflect those listed under higher rating categories, those consistently shown throughout the appeals period are more closely associated with the degree of impairment represented by a 30 percent rating. As such, the medical evidence is consistent with a 30 percent, but no higher. The Board has also considered the Veteran’s and his wife’s lay statements that his disability is worse, and warrants a 70 percent rating. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of PTSD according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s PTSD symptoms has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which psychiatric disabilities are evaluated. Moreover, as the examiners and treating medical professionals have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, and a rating of 30 percent, but no more, is granted. TDIU A TDIU was reasonably raised by the record and will be considered. 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 as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A claim for TDIU is because of subjective factors that the objective rating does not consider. Vittese v. Brown, 7 Vet. App. 31 (1994). The Veteran did not at any point have a 100 percent rating, a single disability ratable at 60 percent or more, or at least one disability ratable at 40 percent or more with a combined rating of 70 percent or more. He is rated at 30 percent for PTSD and 10 percent for tinnitus, for a combined rating of 40 percent from February 15, 2013. As such, he does not qualify for a schedular TDIU. When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). However, the evidence does not support that his disability picture was so exceptional that the case should be submitted to the Director for extraschedular consideration. Specifically, the record did not demonstrate the frequent hospitalizations or missed time from work on account of his service-connected disabilities. He claimed in an August 2018 affidavit he missed several days from work to calm down due to conflict with other employees arising from irritability, a symptom of PTSD. While he claimed this was due to PTSD, he was not formerly diagnosed until following his retirement in June 2011. His medical records first show rule/out PTSD in December 2011, after his retirement. Thus, there is no record of a diagnosed service-connected disability causing him to miss time from work. Moreover, the functional impact of his service-connected disabilities does not cause him to be unemployable. Specifically, an examiner in April 2008 found that his service-connected bilateral hearing loss and tinnitus caused moderate difficulty communication in a noisy environment and minimal difficulty in a quiet environment. Both his November 2013 and June 2016 VA examiners found PTSD to cause occupational and social impairment due to mild or transient symptoms, which decrease work efficiently only during periods of significant stress. Further, there is no evidence that the Veteran has attempted to work since he was service-connected for PTSD. Thus, while an October 2018 vocational report claims he is unemployable due to his service-connected disabilities, specifically because PTSD symptoms of anger and irritability would make working with others difficult, and that isolated employment “does not exist in the competitive work environment,” there is a lack of contemporaneous evidence showing either that a service-connected disability impacted his employment, or has actively precluded the Veteran from procuring employment. Similarly, he has noted a back injury caused reassignment during his last place of employment, having significant impact on his employability at the time. He is not service connected for any back disability. As mentioned above, a TDIU is determined solely by evaluating if a veteran’s service-connected disabilities result in unemployability, and may not be combined with other disabilities or age. Therefore, given that the evidence does not show that his service-connected disabilities alone caused an exceptional disability picture characterized by frequent hospitalizations and missed time from work during his lifetime, the appeal for a TDIU is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel