Citation Nr: 18157903 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-35 263A DATE: December 13, 2018 ORDER Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with cannabis use disorder is denied. Entitlement to total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. For the entire rating period on appeal, the service-connected PTSD more nearly approximates occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in adapting to stressful circumstances including work or a worklike setting; the PTSD has not manifested in occupational and social impairment with deficiencies in most areas. 2. The Veteran has one disability of PTSD with cannabis abuse that is ratable at less than 60 percent. 3. The Veteran is not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of the service-connected PTSD with cannabis use. CONCLUSIONS OF LAW 1. For the entire rating period on appeal from December 2, 2013, the criteria for an initial disability rating in excess of 50 percent for PTSD with cannabis use disorder have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for referral to the Director of Compensation and Pension for consideration of a TDIU under 38 C.F.R. § 4.16(b) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to July 1991. This matter is on appeal from an October 2014 rating decision issued by the Regional Office (RO) in Winston-Salem, North Carolina, for the PTSD claim and a November 2016 rating decision for the TDIU claim. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. Neither the Veteran nor the representative has raised any issues regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when a veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Based on the foregoing, the Board finds that all relevant documentation, including VA treatment records, VA examinations, and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issues on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326(a). The duties to notify and assist have been met. Legal Authority for Rating Disabilities Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (posttraumatic stress disorder). Pertinent in this case, the General Rating Formula provides that a 50 percent rating will be assigned 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 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. 38 C.F.R. § 4.130. A 70 percent rating will be assigned for 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. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular rating contemplates 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 use of the term “such as” in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id.; Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). In Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19, 2017), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating when the appeal was certified after August 4, 2014. As the instant appeal was certified after August 4, 2014, the Board will not rely on GAF scores for rating purposes. 1. Initial Disability Rating for PTSD The Veteran contends that the PTSD caused “major” occupational and social impairment in excess of a 50 percent rating. See October 2014 Notice of Disagreement. The Veteran claims that medical treatment records from the private examiner and the VA examiners at the VA Medical Center support his claim for an increased rating. Id. The Veteran asserts that those records should be afforded more weight than the VA examinations because of his long-term relationships with the private examiner and the VA examiners at the VA Medical Center. Id. After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period on appeal, the weight of the competent and probative lay and medical evidence demonstrates that a disability rating in excess of 50 percent for the service-connected psychiatric disorder is not warranted for any period. The Veteran’s PTSD has been manifested by occupational and social impairment with reduced reliability and productivity, but has not manifested occupational and social impairment with deficiencies in most areas. The Veteran submitted to a VA examination in October 2014. During the examination, the Veteran described himself as a loner but reported that he had some military friends, a ten-year relationship with his girlfriend, and good relationships with some of his family members. The Veteran was employed in auto sales at the time and enjoyed his job but admitted to having workplace arguments resulting in his termination at his previous job. The VA examiner also observed that employment has been helpful in improving the Veteran’s mental health. The Veteran also reported taking sleeping classes, which helped him sleep better. The VA examiner reviewed the medical records, which indicated that the Veteran previously reported using illicit substances, sleeping with a gun by his bed for protection from a home invasion, and being criminally charged with gun possession-related offenses. The VA examiner diagnosed PTSD and mild cannabis use disorder. The VA examiner in October 2014 assessed that the Veteran had 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, which, under 38 C.F.R. § 4.130, warrants a 30 percent rating. The VA examiner noted symptoms such as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in adapting to stressful circumstances including work or a worklike setting. The VA examiner also noted that the Veteran’s cannabis use was an aggravating factor for his PTSD symptoms. VA treatment records from a VA Medical Center do not indicate that that a higher rating is warranted for any period of time on appeal. In July 2015, the Veteran reported that he enjoyed his job as a janitor but stopped taking psychiatric medication because of its side effects, and reported having some arguments with his mother and girlfriend. At that time, the VA examiner noted that the Veteran made tremendous progress. In August 2015, the Veteran reported doing well at work but his attitude was worsening because he was not taking the psychiatric medication. See August 2015 VA Treatment Records. In October 2015, the Veteran reported taking his medication regularly and his medication was increased after the Veteran explained that he was feeling down and sleeping during the day. See October 2015 VA Treatment Records. In January 2016, the Veteran reported that he was happy with his job, and was sleeping well, but also claimed that he felt hypervigilant and depressed about the recent terror attacks. The levels of occupational and social impairment described in the VA treatment records do not rise to the level of impairment in most areas. See January 2016 VA Treatment Records. Private treatment records from a psychologist K.U. reflect that the Veteran has been in counseling with K.U. since March 2017. K.U. noted that the Veteran had symptoms associate with PTSD and major depressive disorder including depression, severe anxiety, nightmares, paranoia, self-isolation, hyper-alertness, loss of focus, anger, and impulsive behaviors. See May 2017 Private Treatment Records. The Veteran reported to K.U. that he was sleeping with a gun under his pillow and arguing with his supervisor at work. K.U. noted that the Veteran’s mother was his legal guardian, made his doctor’s appointments, opened his mail, handled all financial matters, and provided him with food and shelter. See March 2017 Private Treatment Records. As a result, K.U. assessed that the Veteran’s symptoms are so severe that the Veteran is unemployable and is cared for by his mother. Id. The Veteran submitted to a second VA examination in February 2018. The Veteran reported that, while he lives at his mother’s home, he is independent and that his mother is not his caretaker. The Veteran also claimed that he was fantasizing about harming his reportedly racist work supervisor and, as a result, left his job. The Veteran reported trouble concentrating and sleeping, and less interest in most activities but still had an interest in guns. The Veteran did not affirmatively report sleeping with a gun as he did in the past. The VA examiner opined that the Veteran had 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, which, under 38 C.F.R. § 4.130, warrants only a 30 percent rating. February 2018 VA Examination. The VA examiner noted symptoms such as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in adapting to stressful circumstances including work or a worklike setting. The level of social and occupational impairment as well as the noted symptoms in this VA examination are identical to those noted in the October 2014 VA examination. The February 2018 VA examiner assessed that the PTSD does not prevent the Veteran from completing physical or sedentary tasks, but is limited due to the chronic sleep problems, poor concentration, and irritability. To the extent that the PTSD has been manifested by symptoms such as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, difficulty in adapting to stressful circumstances, including work or a worklike setting, the Veteran’s disability more nearly approximates occupational and social impairment with reduced reliability and productivity, which warrants a 50 percent rating. The Veteran is competent to provide lay evidence about the severity, frequency, and duration of PTSD symptoms; however, the Veteran’s statements are inconsistent on the record in regard to his mother’s involvement in his life, and the overall picture reported by the Veteran is inconsistent with the characterization of the same history and symptoms by the private psychologist. For example, the Veteran reported mostly positive claims about his employment, despite what was reported to the private psychologist K.U. For these reasons, the totality of the evidence demonstrates that the Veteran has occupational and social impairment with reduced reliability and productivity as listed or similar to those listed under the 50 percent rating for the PTSD claim for any period on appeal, and did not more nearly approximate the 70 percent criteria of occupational and social impairment, with deficiencies in most areas. 38 C.F.R. §§ 4.3, 4.7, 4.130. Legal Authority for TDIU VA will grant TDIU benefits when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with a veteran’s education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340 (a)(2). TDIU may be assigned when the disabled person, in the judgment of the rating agency, is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16 (a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for initial adjudication under § 4.16(b) criteria are met. 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). In Faust v. West, 13 Vet. App. 342, 356 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances that the Veteran could engage in. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). 2. Entitlement to TDIU The Veteran contends that he is unable to maintain substantially gainful employment due to service-connected disabilities. The Veteran filed a VA Form 21-8940 in October 2014, claiming that he left employment due to the service-connected psychiatric disability and has not tried to obtain employment since he became too disabled to work. The Veteran also indicated that he had a high school education and has held positions as a car detailer. After a review of the lay and medical evidence of record, the Board finds that the Veteran is service connected for PTSD with cannabis use disorder rated at 50 percent from December 2, 2013. The Veteran is not service connected for any additional disabilities; thus, the service-connected disability not meet the threshold requirements for TDIU eligibility under 38 C.F.R. § 4.16(a). Additionally, the Board finds that the evidence does not show that the Veteran is unable to obtain (secure) or maintain (follow) substantially gainful employment; thus, the criteria for referral for initial adjudication under § 4.16(b) criteria are not met and submission to the Director, Compensation and Pension Service for initial adjudication is not warranted. Upon review of the record, the Veteran worked as a car detailer after service separation from 1992 to 1997, 2002 to 2007, and in 2013. See October 2015 VA Examination (the Veteran reported that he worked as a car detailer for 5 years before getting terminated in 1997 for an argument with a coworker); October 2014 VA Form 21-8940 (the Veteran reported that he worked as a car detailer for Nissan from 2002 to 2005 and then as a car detailer for Ford from 2005 to 2007); June 2013 VA Treatment Records (the Veteran reported detailing cars for a friend in 2013). In September 2013, the Veteran reported working as a security guard at a bar while looking for more permanent employment. September 2013 VA Treatment Records. At that time, the Veteran was concerned that he could not secure a more permanent job because of his criminal record and inability to pass a drug test. October 2013 VA Treatment Records. The Veteran indicated that he was unemployed until he participated in the VA Compensated Work Therapy (CWT) Program in 2014. Through the CWT the Veteran obtained full-time employment detailing cars. See October 2014 VA Examination. After working in the CWT for two years, the Veteran left the job. The Veteran claimed that the new supervisor did not appreciate him, was racist, and was threatening him. 2018 February VA Examination. During the October 2014 VA examination, the VA examiner noted that the CWT program was helpful in improving the Veteran’s mental health symptoms. The Veteran reported that being able to work alone in his own space has been helpful for work performance. The VA examiner opined that the Veteran’s emotional detachment, startle response, avoidance symptoms, and distress when exposed to cues and triggers of traumatic events could mildly to moderately impact the ability to complete work-related tasks. The VA examiner also opined that the Veteran could have moderate problems with interpersonal relationships with co-workers and supervisors due to hypervigilance, anger, and irritability. According to the 2018 February VA examination, the VA examiner assessed that the PTSD does not prevent the Veteran from completing physical or sedentary tasks. The VA examiner opined that the PTSD does limit his ability to get tasks completed due to decreased energy because of chronic sleep problems and the Veteran’s irritability might negatively affect his interpersonal relationships with co-workers and supervisors due to his desire to isolate from other people. (Continued on the next page)   Having reviewed all the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU have not been met for any period on appeal. While the evidence reflects that the Veteran is currently unemployed and that the PTSD limits the Veteran in the workplace, symptoms of the service-connected PTSD are not so severe as to completely preclude substantially gainful physical or sedentary employment. As to education and experience, the evidence reflects that the Veteran has a high school diploma and that he has the skills to work as a car detailer because he has over ten years of experience. Pertinent to this case, the Veteran’s criminal history and drug use are major factors that negatively affect the ability to secure and maintain employment. The preponderance of the lay and medical evidence is against a finding for a TDIU and against referral for initial adjudication under § 4.16(b) adjudication. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel