Citation Nr: 18157457 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-45 909 DATE: December 13, 2018 ORDER Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. The Veteran has manifested at most, occupational and social impairment with reduced reliability and productivity due to his PTSD. 2. The Veteran is not rendered incapable of maintaining substantially gainful employment as the consequence of one or more service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.130; Diagnostic Code 9411 (2018). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Veteran was represented by a veteran’s service organization (VSO). However, in an April 2014 statement, he expressly revoked their power of attorney and stated that he wished to represent himself. Therefore, the Board considers him to be unrepresented. VA’s duty to notify was satisfied by a January 2013 letter. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran’s service treatment records, VA medical treatment records, and indicated private medical records have been obtained. The Veteran was afforded VA examinations in July 2014, March 2015, January 2018 to evaluate the severity of his PTSD. The VA examinations are adequate because they were based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because they describe his PTSD in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). 1. Entitlement to an initial rating higher than 50 percent for PTSD. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. According to VA’s General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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-term 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned where 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; obsessed 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 rating is warranted where 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; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. In his Notice of Disagreement (NOD), the Veteran argued that his Global Assessment of Functioning (GAF) scores should be considered. This appeal was certified to the Board after August 4, 2014 and therefore the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) (DSM-5) applies. Discussion of GAF scores is not appropriate. Golden v. Shulkin, 29 Vet. App. 221 (2018). Also in his NOD, the Veteran argued that more probative weight should be given to the findings of his treating psychologist. To support his argument, he referenced a Board decision from the early 1990s where the Board assigned probative weight to a treating psychiatrist. Prior Board decisions are binding only on the specific case decided, and the decision cited has no precedential value in the instant case. 38 C.F.R. § 20.1303 (2018). Additionally, case law makes clear that there is no “treating physician rule” under VA law, whereby additional evidentiary weight is presumptively afforded to the opinion of a physician who treats the veteran. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Having reviewed the evidence, the Board finds that a rating beyond 50 percent is not warranted. Given medical findings showing less than “occupational and social impairment with deficiencies in most areas” the next higher 70 percent disability evaluation is not warranted. The February 2012 private psychological counseling report noted “PTSD, chronic, severe.” The Veteran provided a description of precipitating stressful events from his military service, and stated having had considerable survivor guilt at times. He indicated numerous characteristic symptoms of PTSD since service including intrusive thoughts, traumatic nightmares, avoidance of conversations about his service, hypervigilance, problems with memory and concentration, and exaggerated startle response. He reported being less sociable, irritable and having a quick temper. He was hypervigilant, avoided crowds, and did not socialize much. He had problems going to sleep and staying asleep, nightmares, hypervigilance, and difficulties with memory and concentration. Mental status examination was normal. The counselor found that the Veteran’s hypervigilance, irritability and isolating behaviors had severely compromised his ability to initiate or sustain work or social relationships. Memory and concentration problems limited his ability to learn new tasks. The subsequent reports from this same provider, intermittently but approximately once a year, indicated similar signs and symptomatology shown. It was stated on the February 2012 report, and as notated on subsequent reports given, the statement that the Veteran was considered to have been “totally and permanently disabled.” At his VA examination in September 2012, the overall assessment given as to severity of PTSD was as follows: “A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.” This is contemplated by the criteria for a noncompensable rating. 38 C.F.R. § 4.130. As to relevant history, the Veteran was married, and reported a good relationship with his spouse, and with the five children he had from a prior marriage. The Veteran had worked for the Federal government for 30 years up until having retired in 2001. The Veteran reported post-service he began demonstrating the following symptoms of chronic sleep problems, nightmares, intrusive thoughts about his service and related traumatic events, withdrawals from social interactions, avoidance of conversations and discussions about his service, and exaggerated startle response. General symptoms of the Veteran’s condition as notated at that time were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships. Upon VA re-examination July 2014, the examiner indicated that the Veteran’s symptoms were best characterized as “transient to mild” at that time, and he was generally functioning quite well and had no more than slight impairment in social and occupational functioning. He described having a good relationship with his mother, regular engagement in enjoyed activities (e.g. lawn care and attending church), and a strong relationship with his wife. The description of daily activities was not notable for impairment secondary to mental health symptoms with a few exceptions (tendency to isolate from others, avoidance of large crowds, some hypervigilance). The Veteran said he tried to make daily life as normal as possible, and did not allow his thoughts to progress to a certain negative point. Based on the information available it appeared that the Veteran had slight 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, but his symptoms appeared sufficiently controlled by his medication and ongoing therapeutic interventions. This is contemplated by the 10 percent criteria. The overall estimation from the examiner was that the Veteran had occupational and social impairment due to mild and transient symptoms. He characterized the relationship with his spouse as a good one. He stated he had varying contacts with his children from the first marriage. The Veteran stated that he was receiving some outpatient counseling. He had been prescribed some sleep medication. He had thought about requesting some medication for irritability but had not acted on this. The Veteran further described symptoms of nightmares, intrusive thoughts, irritability, avoidance, isolative behavior, hypervigilance. The Veteran denied any substance abuse history. The symptoms indicated were a depressed mood, anxiety, chronic sleep impairment. During the interview the Veteran was open and cooperative, and consistently put forth good effort and was deemed to be a reliable informant. He presented with good hygiene and grooming, motor function was normal, speech was normal, memory and reasoning were intact and good. The Veteran characterized his mood as “kind of a little on the sad side, not a deep depression but somewhat sad,” and he presented with a mildly flat affect. He described his mood over the prior month as “somewhat somber.” He denied any suicidal ideations or intentions. The Veteran stated that the most significant mental health problem at this time was sleep disturbance and nightmares. The Veteran underwent another VA examination in February 2015, the diagnosis at outset was of PTSD, chronic. Overall there was 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. This is contemplated by the 30 percent criteria. The Veteran recalled experiencing sleep problems, periods of sadness and crying, becoming easily irritated by others, nightmares and night sweats. The Veteran was not prescribed psychiatric medications. He admitted to prior suicidal thoughts with plan and intent, the most recent occurrence the prior year. While he admitted to current non-specific suicidal thoughts, he denied current plan and intent. The Veteran admitted to prior aggressive thoughts toward others, but denied a current plan and intent with homicidal nature. The Veteran denied prior and current contact with the legal system. He denied a pattern of substance use or dependence. The symptoms noted were depressed mood, anxiety, chronic sleep impairment. During the interview, the Veteran was casually dressed, interacted appropriately, had proper eye contact, and speech was coherent with no evidence of impoverishment. He did not endorse symptoms of psychosis, or give indication of delusional process. Insight and judgment appeared average, and his attention and concentration could be considered average as well. Rapport was established and maintained for the purpose of the interview. The Veteran had other symptoms attributable to PTSD, consisting of nervousness, hypervigilance, nightmares, night sweats, and becoming easily irritated by others. The Veteran was capable of managing his financial affairs. The VA examiner further stated that it appeared that the condition of PTSD had minor to moderate impact on the Veteran’s ability to perform physical and sedentary activities of employment. The Veteran indicated that during his 30-year career with the Federal government, he would often take “stress breaks” where he would have to calm down and regain his composure after being confronted with unmanageable stress, reporting that he knew others were aware of his difficulties. The Veteran was otherwise encouraged to continue treatment through his private provider. It appeared he had gained some insight into his condition, and was beginning to understand what could trigger reoccurrences of stressors. By a March 2015 private psychological counseling evaluation, the Veteran reported having experienced stressful times. The counselor stated that he continued to “suffer significant disturbance in all areas of his life due to his PTSD and depressive symptoms.” Sometimes his depression made him feel overwhelmed. He was having more problems with his memory and concentration. He continued to isolate himself. He was more hypervigilant. He was experiencing more irritability. VA treatment records from January 2016 note the presence of depression. He stated that he felt “down,” but that he “g[o]t through it.” He felt a decrease in motivation to do household chores. He prayed, read the Bible, contemplated his relationship with God, and focused on helping others when he felt depressed. More recently on examination January 2018, the overall impairment due to PTSD was indicated as being occupational and social impairment with reduced reliability and productivity. This is contemplated by the 50 percent criteria. The Veteran reported that PTSD was difficult on his first marriage, but that he had a better relationship with his current wife. He saw his four children from that marriage several times per year. The Veteran reported having the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory impairment, flattened affect, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. The Veteran had several of the characteristic PTSD symptoms including recurrent intrusive memories, dissociative reactions, physiological reactions, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment from others, hypervigilance, exaggerated startle response, problems with concentration, sleep disturbance. Additional symptoms present consisted of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances including a work or work-like setting. In terms of severity of PTSD symptoms, by all accounts the Veteran has a functional, productive, and substantially normal life. The Board finds that the findings of the VA examiners are more detailed and are more representative of the severity of the Veteran’s PTSD. The private records are also considered, but when the record is read as a whole, the symptoms are most closely described by the 50 percent criteria. The continued assessments from the VA examiners show that, on repeat examinations, the Veteran retains significant functional capacity, thus providing a very longitudinal case study. See 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.”); see also Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). By applicable law, not just conclusory statements but actual symptomatology must be evaluated. See 38 C.F.R. § 4.126(a) (“The rating agency shall assign an evaluation 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.”). For similar reasons, the conclusory statement of the private counselor who saw the Veteran a few times over the years, to the effect that he appeared “totally and permanently disabled” does not on its own become dispositive in the absence of clearly corroborated findings. This includes in comparison to the more detailed VA examinations that included a thorough claims file review for pertinent medical history regarding the case itself. Over the appeal period, the Veteran’s thought process and speech were good. There certainly were not mood disturbances that caused near-constant panic or depression, and/or interfered with various activities of daily life such that deficiencies in most areas occurred. While noted at some points to be irritable, the Veteran did not have impaired impulse control. There is one mention of suicidal ideation in an examination report, but one occurrence over an appeal period lasting many years is not frequent or severe enough to result in deficiencies in most areas. The record shows that at one point he also had intent and plan to harm himself. Self harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). One instance of plan and intent over the appeal period is not frequent or severe enough to demonstrate that the Veteran is a danger to himself or that he has total social and total occupational impairment. There was nothing violent or similar in the Veteran’s personal or legal history. The Veteran reported depressed mood and anxiety. Simply because the Veteran has depressed mood and anxiety, and because the 70 percent level contemplates a deficiency in “mood” among other areas, does not mean his PTSD rises to the 70 percent level. Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. Id. His depression and anxiety have not been categorized as near-continuous or severe enough to interfere with his ability to function. The private record from March 2015 notes that the Veteran’s depression was sometimes overwhelming. However, the private clinician did not describe depression that interfered with his ability to function independently. Here, the Veteran’s depressed mood is expressly contemplated by the 50 percent criteria, which contemplates “disturbances” in mood. 38 C.F.R. § 4.130. The Veteran is adequately compensated for that impairment. The January 2018 examiner noted a difficulty, not an inability, to adapt to stressful circumstances. This impairment is contemplated by the 50 percent criteria. Prior VA examiners did not note difficulty or inability adapting to stress or in forming relationships. The medical evidence does not support a rating higher than 50 percent. The Veteran has not submitted a lay description of his PTSD symptoms other than to state that he has nightmares and intrusive thoughts. The lay evidence does not describe the frequency, severity, or duration of these symptoms and they were subsequently addressed by the VA examiners and the Veteran’s private treatment provider. Accordingly, the criteria are not met to establish the next higher initial rating of 70 percent for the Veteran’s service-connected PTSD. The preponderance of the evidence weighs against the higher benefit sought, and it follows that VA’s benefit-of-the-doubt doctrine does not apply and the claim must be denied. 2. Entitlement to a TDIU. At the outset, the Board notes that the Veteran has a 100 percent rating for prostate cancer and special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(s) effective from March 2, 2017. Consideration of a TDIU as of that date is moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). However, TDIU remains on appeal for the portion of the appeal period prior to March 2, 2017. Harper v. Wilkie, (No 16-3519), 2018 U.S. App. Vet. Claims LEXIS 1618. Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). Disabilities resulting from common etiology are considered as one disability for the purpose of determining whether these threshold minimum rating requirements are met. Since January 29, 2015, the Veteran has met the preliminary schedular for a TDIU under 38 C.F.R. § 4.16(a), due to having on single service-connected disability rated at 40 percent, and additional service-connected disability to bring the combined total to 70 percent. In this instance, that would be PTSD rated at 50 percent, and additional disability from diabetes mellitus. The criteria for consideration of a schedular TDIU are met from that point onward. Prior to January 29, 2015, the Veteran had a 50 percent rating for PTSD and a 20 percent rating for diabetes. His combined rating was 60 percent and therefore the criteria for consideration of a schedular TDIU were not met. When the criteria set forth in 38 C.F.R. § 4.16(a) are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (2018); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is “[in]capable of performing the physical and mental acts required by employment,” and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education, and vocational attainment. See 38 C.F.R. § 4.16; see also Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). Significantly, the impact of any nonservice-connected disabilities, or advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, “marginal employment” shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the U. S. Court of Appeals for Veterans Claims has accepted the definition of substantially gainful employment as that “at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Where reasonably raised by the facts of a particular case, the Board must address the issue of whether the Veteran’s ability to work is limited to marginal employment and, when appropriate, explain why the evidence does not demonstrate that the Veteran is incapable of more than marginal employment. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). The Board concludes on review of the record, a TDIU is not warranted. By all indication the Veteran has retained the capacity for substantially gainful employment, notwithstanding the impact of service-connected disabilities. The February 2015 VA examination for PTSD found that the psychiatric condition had a minor to moderate impact on the Veteran’s ability to perform physical and other more sedentary activities of employment. It was noted that the Veteran had some issues with communication on the job, and took necessary breaks he stated when finding some work-related stressful issue development, but overall it would appear from this assessment he was clearly employable in relation to PTSD. The Veteran’s having left one or more jobs was considered the result of his physical condition and not a psychological condition. The examiner specified that he left his job due to knee problems and arthritis in his legs and hands. None of these conditions are service-connected. On a series of VA examinations in April 2015 for diabetes mellitus and diabetic peripheral neuropathy, the consistent finding was that the Veteran’s condition had no impact upon the ability to work. The Veteran’s January 2018 VA examination for PTSD noted that the Veteran chose to work at night so that he would not have to sleep at night. He had problems sleeping at night because of his PTSD. The examiner noted that the Veteran had difficulty, not inability, to adapt to stressful situations such as work or a work like setting. On the whole there is no probative medical evidence VA or private, indicating that the Veteran is indeed incapable of maintaining gainful employment due to service-connected disability. The impact of PTSD on employment is noted above, and his remaining service-connected conditions do not further cause, or contribute to unemployment. The Board is also mindful that the Veteran appears to have a relatively skilled mechanical background, having been employed by the Federal government previously for 30 years in a specific and specialized field. Thus, there is no reasonable indication of need to investigate whether he was or might be limited in scope to more marginal employment. Likewise, there is no opinion prior to January 29, 2015 which reasonably shows that service-connected disability was of such severity as to warrant consideration of an extraschedular evaluation, pursuant to 38 C.F.R. § 4.16(b). The Veteran has not provided a lay statement describing how his service-connected disabilities prevent him from working other than to generally state that he no longer works because of his PTSD. The Veteran’s lay statement is less probative than the findings of multiple VA examiners who noted that while PTSD caused some interference with employment, it did not preclude employment. Accordingly, on these grounds, the preponderance of the evidence is unfavorable, and the claim is denied. VA’s benefit-of-the-doubt doctrine does not apply to this situation. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons