Citation Nr: 18160843 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-50 075 DATE: December 28, 2018 ORDER The issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to the regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. On November 20, 2018, prior to the promulgation of a decision by the Board, the Veteran indicated in a written statement that he was withdrawing his appeal as to the claim of service connection for bilateral hearing loss (characterized as a claim to reopen service connection for bilateral hearing loss.) 2. For the entire appeal period, the service-connected PTSD more nearly approximates occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. 3. For the entire appeal period, the Veteran meets the schedular requirement for TDIU, and his service-connected disability renders him unable to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal, as to the issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.204. 2. For the entire appeal period, the criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. For the entire appeal period, the schedular criteria for an award of a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1970 to November 1971. In the March 2014 rating decision, from which the current appeal arises, the Regional Office (RO) reopened the Veteran’s claim of service connection for bilateral hearing loss and continued to deny the claim. Regardless of how the RO ruled, the question of reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the issue is characterized as a claim to reopen service connection for bilateral hearing loss. The Veteran’s claim for a TDIU was received in November 2018, whereby he claimed that he cannot work due to PTSD. In a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue of entitlement to a TDIU is currently before the Board. Neither the Veteran nor his attorney has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Issue 1: Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran submitted a written statement in November 2018 requesting that his claim for service connection for bilateral hearing loss be withdrawn. The Board finds that this written withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). As the Veteran has withdrawn the issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss and this appeal is dismissed. Issue 2: Entitlement to a rating higher than 30 percent for PTSD. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected PTSD is evaluated under the General Rating formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, 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 satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted 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; 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); 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. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” 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 only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held 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. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant’s condition affecting the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). DSM-V is applicable in the instant case as the issue on appeal was certified to the Board in October 2016 and thus is after August 4, 2014. 80 Fed. Reg. 14308 (March 19, 2015). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It is the impact of the symptoms on occupational and social functioning that determines the rating. The Board places high probative value on the evidence showing that the Veteran’s PTSD more nearly approximates the criteria for a 70 percent rating based on occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. By way of history, the RO construed the Veteran’s statement received in May 2013, to be a claim for a rating higher than 30 percent for PTSD. In a private psychological assessment report dated in November 2018, a private psychologist, Dr. L.C.R., found it significant that a March 2013 psychiatric consultation shows that the Veteran experienced intense anxiety and marked nightmares of military related content. The Veteran reported that during one of these dreams he feared he might hurt his wife. He continued to experience depressed mood, anhedonia, poor concentration, isolation, intrusive memories, restricted effect, and irritability with daily stressors. He continued to have intermittent death thoughts. Dr. L.C.R. noted that a September 2013 VA progress note continued to endorse similar symptoms. Dr. L.C.R. opined that the March 2014 VA examination report included findings not consistent with the overall medical evidence of record and was not an accurate assessment of the Veteran’s psychiatric condition. The private examiner noted that the March 2014 VA examiner ignored the Veteran’s history of poor compliance with treatment and tendency to isolate, which is indicative of a pattern of avoidance behavior. The private examiner pointed out that VA treatment records in August 2014 indicate that the Veteran continued having nightmares, isolation, and irritability. Similar symptoms were documented in a January 2015 VA psychiatric note. During the November 2018 private evaluation, the Veteran reported that he continued having marked sleep disturbance, nightmares of military related content, restricted affect, and irritability with daily stressors. He continued having symptoms of intermittent death thoughts without self-attempts, anxiety, and low tolerance to noise. Mental status evaluation shows the Veteran was appropriately dressed and his mood was anxious. His thought process was illogical at times. The Veteran was oriented in person and place but was only partially oriented in time. He continued reporting suicidal ruminations without self-attempts. He reported obsessive thinking and occasional hallucinations but denied homicidal ideas. The examiner opined that the Veteran’s PTSD symptoms were severe. Dr. L.C.R. commented that the Veteran’s practice of self-care through activities like painting have been misinterpreted as proof of occupational and social functioning. In spite of these activities, severe anxiety, intolerance to stress, occasional hallucinations, and intermittent death wishes have persisted. Dr. L.C.R. opined that, if the Veteran was to return to work, his PTSD symptoms would prevent him from being able to function adequately and that, if he had not retired earlier, his psychiatric symptoms would have forced him to quit within the next few years. Dr. L.C.R opined that the Veteran would have been rendered unemployable by the time he quit working in 2001 or at least by 2005 due to his PTSD symptoms. The November 2018 private evaluation is highly probative as it based on a thorough review of the file and contemporaneous evaluation of the Veteran’s PTSD. The private examiner’s findings are consistent with the other evidence of record. In his May 2013 claim, the Veteran stated that he was no longer motivated to interact with people and heard voices calling his name. In addition to the multiple VA treatment records that Dr. L.C.R. referenced, VA treatment records in June 2013 show that the Veteran had intermittent death thoughts, isolation, irritability, and problems dealing with daily stressors. VA treatment records in April 2014 document social isolation, irritability, problems dealing with daily stressors, and intermittent thoughts of death. VA treatment records in August 2014 show that the Veteran painted and listened to soft music as a way to cope with stress and anxiety. He denied a history of suicidal attempts or plans but admitted to having intermittent death thoughts. VA treatment records in January 2015 show that the Veteran continued to report anxiety, worrying, tension, recurrent nightmares, and isolation. As discussed above, the evidence shows that the Veteran throughout the appeal period had thoughts of death. Notably, the United States Court of Appeals for Veterans Claims recently held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board is cognizant that VA treatment records show symptoms that are included in the criteria for ratings lower than 70 percent. See, e.g., VA treatment record dated in March 2013 showing that the Veteran was oriented to person, place and time. The Board also acknowledges that on VA examination in March 2014, the examiner opined that 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. However, the VA examiner’s opinion is inherently inconsistent as the accompanying examination findings show that PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examination report also documents symptoms to include markedly diminished interest or participation in significant activities, exaggerated startle response, problems concentrating, and sleep disturbance. Thus, the March 2014 VA examiner’s opinion regarding the Veteran’s occupational and social impairment is of limited probative value. Lastly, in November 2018, the Veteran, through his attorney, requested that he be granted either a 100 percent rating for PTSD or a 70 percent rating for PTSD along with TDIU for the entire appeal period. As the Veteran expressed satisfaction with a 70 percent rating along with TDIU, this decision granting a 70 percent rating for PTSD and TDIU for the current appeal period represents a full grant of the benefit sought on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Thus, a rating higher than 70 percent for PTSD is not for consideration. Issue 3: Entitlement to a TDIU. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In light of the decision herein, the Veteran’s service-connected PTSD is rated as 70 percent disabling for the entire appeal period. Although the Agency of Original Jurisdiction has not yet had the opportunity to effectuate the 70 percent rating for PTSD, the Veteran meets the schedular criteria for TDIU. He contends that he is unemployable due to his service-connected psychiatric disorder. See, e.g., TDIU claim received in November 2018. The remaining question, then, is whether the Veteran’s service-connected disability renders him unemployable. In this regard, the central inquiry is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In his November 2018 claim, the Veteran explained that he stopped working as a teacher in 2001 because he was worried about losing control and hurting students. He retired early because he was no longer able to handle teaching and the stress of the job. The Veteran noted that he continued to paint as a form of therapy and at most has not made more than $3000 per year since 2001. He also stated that some years he did not make more than a few hundred dollars. He also noted that his painting subsided because of his inability to concentrate and complete projects. The Veteran’s accounting of his minimal earnings or lack thereof is uncontroverted by the other evidence of record. As discussed above in the context of the claim of an increased rating for PTSD, the November 2018 private examiner opined that, if the Veteran was to return to work, his PTSD symptoms would prevent him from being able to function adequately and that, if he had not retired earlier, his psychiatric symptoms would have forced him to quit within the next few years. Although it is unclear whether the Veteran painted during the appeal period, to the extent that he may have painted the evidence discussed above shows that he painted as a way to cope with stress and anxiety. Furthermore, marginal employment will not be considered substantially gainful employment and will be 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. 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). Although on VA examination in March 2014 the VA examiner opined that the Veteran is not unemployable on account of his mental condition, as stated above a finding for a TDIU is a legal determination to be decided by VA based on the evidence of record. Furthermore, as discussed above, the March 2014 VA opinion is of limited probative value as it is inherently inconsistent. Thus, based on the evidence of record, to include the Veteran’s education and work history, and despite of the unfavorable March 2014 VA opinion, the Board finds that the overall evidence is persuasive that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. The weight of the evidence discussed above shows that the severity of his service-connected PTSD renders him incapable of obtaining and retaining substantially gainful employment given his level of education, training, and work experience. Entitlement to a TDIU is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel