Citation Nr: 18100810 Decision Date: 04/20/18 Archive Date: 04/20/18 DOCKET NO. 14-34 152 DATE: April 20, 2018 ISSUES DECIDED: 2 ISSUES REMANDED: 0 ORDER Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence does not show that the Veteran’s service-connected PTSD has resulted in total occupational and social impairment. 2. The evidence does not show that the Veteran’s service-connected PTSD renders him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 100 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from August 1969 to August 1971, to include service in the Republic of Vietnam. His decorations include the Bronze Star Medal, and the Army Commendation Medal with “V” Device. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and July 2014 rating decisions. 1. An Initial 100 Percent Rating for PTSD Is Not Warranted Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. 38 U.S.C. § 1155. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned when the factual findings show distinct time periods during the appeal period where the service connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are not appropriate in this case as the evidence does not show a material change in the Veteran’s PTSD during the period on appeal. A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. In this case, the August 2013 rating decision on appeal granted service connection for PTSD and assigned a 70 percent initial disability rating under Diagnostic Code 9411 of the General Rating Formula for Mental Disorders (General Formula), effective from September 9, 2012, the effective date of the award of service connection. 38 C.F.R. § 4.130. DC 9411 pertains to PTSD. Therefore, the rating period for consideration on appeal is from September 9, 2012. The Veteran now contends that he is entitled to a 100 percent initial rating. The evidence does not support his contention. Under the General Formula, a maximum 100 percent rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, consideration is given to all symptoms of the Veteran’s PTSD that affect the level of occupational and social impairment. Here, the medical evidence does not show that the Veteran’s functional impairment associated with his PTSD has resulted in total social impairment. The record contains two relevant medical reports. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (finding it is the Board’s responsibility to determine which competing medical opinion or examination report is more probative of the medical question at issue). The first was rendered by L.G., a private licensed psychological associate overseen by a psychologist, and the other by a VA clinical neuropsychologist. While both examination reports indicate the Veteran engages in isolating behaviors, both reports also show the Veteran is not totally socially impaired. Indeed, the Veteran reported during the VA examination that he applied for VA compensation at the behest of “family and friends.” July 2013 VAX at 1. Additionally, the Veteran has been married to the same woman for approximately 44 years. Id. at 4. He described his marriage as stable and supportive, and the Veteran and his wife have two children with whom they live in close proximity. Id. Further, the private medical report states the Veteran remains hypervigilant so that he can keep his family members safe, which indicates he cares for others and is not a total isolationist. See Private Examination Report at 2. Altogether, the evidence shows that the Veteran’s PTSD has not resulted in total social impairment as is required by a 100 percent rating. As such, discussion as to whether total occupational impairment has been demonstrated has been rendered moot as to entitlement to a schedular 100 percent evaluation in the absence of demonstration of total social impairment. In considering the appropriate disability rating, the Board has considered the Veteran’s contention that he is entitled to a 100 percent rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); see also Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (holding that the Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he has not been shown to have the requisite training or expertise to render him competent to identify the specific level of disability of his PTSD according to the appropriate diagnostic codes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In contrast, competent evidence concerning the nature and extent of the Veteran’s PTSD was provided by the VA neuropsychologist who examined him during the current appeal and who rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination report) directly address the criteria under which his disability is evaluated, and the VA examiner opined that the Veteran’s disability only satisfies the criteria for a 30 percent rating. Therefore, the Board finds the VA examination findings are entitled to more weight than the Veteran’s lay assertions. The Board also considered the private medical report authored by L.G. While the Veteran repeatedly refers to L.G. as his “treating psychiatrist” in his Notice of Disagreement, the record indicates that the Veteran was only seen once by L.G. See generally Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) (finding that the “treating physician rule” that gives opinions of treating physicians greater weight in evaluating medical evidence has been rejected in the context of veterans’ benefits claims). Additionally, L.G. is not a psychiatrist, but rather a psychological associate. Furthermore, while L.G. indicated the Veteran is “totally and permanently” disabled due to his PTSD, she did not support her conclusion with data or provide a reasoned medical explanation for her conclusion. Indeed, she appears to have disregarded evidence of the Veteran’s stable and supportive marriage, as well as his supportive children and friends. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a probative medical opinion is one that is based on sufficient facts or data, is the product of reliable principles and methods, and is the result of principles and methods reliability applied to the facts). Therefore, L.G.’s opinion that the Veteran is “totally and permanently” disabled due to his PTSD is not entitled to any probative weight . The Board is sympathetic to the Veteran’s claim; however, the applicable regulation as written precludes a grant of a 100 percent rating where there is not total occupational and social impairment. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). For these reasons, an initial schedular rating of 100 percent is denied. 2. TDIU Is Not Warranted The Veteran also seeks entitlement to TDIU. To establish entitlement to TDIU, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The central inquiry in any TDIU determination is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. 38 C.F.R. § 3.340; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is itself recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the appellant is capable of performing the physical and mental acts required by employment, not whether the appellant can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful employment” is employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. The ultimate question of whether a Veteran is capable of substantially gainful employment is for the adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Where the schedular rating is less than total, a total disability rating may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. In relevant part, the schedular requirements are met if there is only one service-connected disability and the disability is rated at 60 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran meets the schedular criteria for a TDIU. He is service-connected for PTSD that is rated as 70 percent disabling. However, after careful consideration, the Board finds that the Veteran’s PTSD has not prevented him from securing and following substantially gainful employment. The record indicates that prior to and after military service, the Veteran worked in manufacturing. July 2013 VAX at 6-7. After service, the Veteran received a well-paying, full-time job with Goodyear Tire and Rubber Company (“Goodyear Tire”). Id. He remained with Goodyear Tire for approximately 33 years before retiring. October 2013 VA 21-4192 Request for Employment Information. During this lengthy period of gainful employment, the Veteran received valuable training, skills, and experience that would likely qualify him for sedentary and non-sedentary work. While the Veteran contends that he was ultimately forced to retire from Goodyear Tire due to his PTSD, his assertion is inconsistent with other evidence of record. See Caluza, 7 Vet. App. at 512 (holding that the Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence). Specifically, the Veteran told the VA examiner that the psychological symptoms which he initially experienced after his discharge from military service “faded with time and maintaining a busy schedule.” The Veteran added that those symptoms only reappeared after his retirement due to being less active and having less to distract his thoughts. The Board finds the statements made to the VA examiner are more probative than subsequent statements made for the purposes of increasing his VA compensation. Id. Additionally, the evidence reveals the Veteran sustained a severe non-service-connected workplace hand injury while employed with Goodyear Tire as a calendar operator. Calendaring is a rubber processing method by which rubber is pressed into various forms. According to the private medical report, the Veteran’s hand was “crushed” by a machine. Altogether, this evidence tends to establish that the Veteran did not retire due to service-connected factors. The Veteran is also limited by non-service-connected sleep apnea, Crohn’s disease, ulcerative colitis, and herniated/ruptured discs for which he underwent back surgery. When considering only his service connected PTSD disability, the preponderance of the evidence is against a finding that his PTSD alone is of sufficient severity to prevent him from following sedentary or non-sedentary employment. Indeed, the Veteran’s lengthy employment history with Goodyear Tire shows that he was able to secure and follow substantially gainful employment despite his PTSD. More recently, the July 2013 mental status examination shows the Veteran’s PTSD results in occupational and social impairment with only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, within normal routine behavior, self-care, and conversation. The examination revealed the Veteran was clean, well dressed, well groomed, and oriented. His attention and concentration were within normal limits, as were his speech, thought processes and thought content. His judgment, insight, and abstract thinking were acceptable, he denied hallucinations and delusions, and he denied active thoughts of suicide or homicide. These findings are consistent with a 30 percent rating; however, the RO generously granted a 70 percent rating. While the private examiner (L.G.) found the Veteran is totally disabled, L.G. did not adequately support her conclusion with data or provide a reasoned medical explanation for her conclusion, as previously discussed herein. Her examination report is also negative for symptoms warranting a 70 or 100 percent rating, such as suicidal ideation, gross impairment in thought processes or communication, near continuous panic or depression, persistent delusions or hallucinations, unprovoked irritability with periods of violence, persistent danger of hurting himself or others, spatial disorientation, disorientation to time or place, or neglect of personal appearance. Therefore, the Board assigns more probative weight to the VA examination findings in determining whether TDIU is warranted.   In sum, the preponderance of the evidence is against a finding that the Veteran’s PTSD renders it impossible for him to secure and follow substantially gainful employment consistent with his education and occupational experience. As such, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, entitlement to a TDIU is denied. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel