Citation Nr: 18106906 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 14-30 095 DATE: June 1, 2018 ORDER A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PTSD is manifested by symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. For the entire appeal period, the Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. For the entire appeal period, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to a rating in excess of 50 percent for PTSD. The Veteran contends that he is entitled to a rating in excess of 50 percent for PTSD because he believes that his symptoms are more severe than as reflected by the currently assigned rating. The Veteran filed his current claim for an increased rating in October 2012. Therefore, the appeal period before the Board begins on October 10, 2012, the date VA received the Veteran’s claim for an increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Based on the evidence of record, the Board finds that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity for the entire appeal period, thus warranting no more than the current 50 percent rating. 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. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected PTSD is evaluated under the criteria of DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 50 percent rating is warranted when there is 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 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; 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. Id. A 100 percent rating is warranted when 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. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126(a). The Board notes that the revised DSM-5, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). The Veteran underwent two VA examinations before the current period on appeal. At his initial PTSD examination in October 2005, the Veteran was diagnosed with PTSD related to his service in Vietnam. At such time, the examiner noted the Veteran’s social and occupational history, and indicated that the Veteran had difficulty maintaining social and familial relationships, disturbed sleep, irritability, startle reaction, poor concentration, hypervigilance, and he would get tearful when thinking of sad things. The examiner also noted the Veteran suffered from depression over the years with the symptoms waxing and waning, and had lost interest in auto mechanics. At an April 2010 VA examination, the Veteran was noted to have the same symptoms as above, except depression. The April 2010 examiner noted that the Veteran did not have depression then or historically. At such time, the Veteran was noted to isolate himself, avoiding crowds and going out; felt detached and cutoff; had no family interaction since his divorce; had anger problems in addition to irritability problems; was mildly forgetful and easily distracted; and may be considered overly suspicious. The Veteran reported that he was very critical of people, and he could not tolerate anyone. He reported some past thoughts of suicide, but stated that was a long time ago and denied any suicidal ideation. He was noted to have one friend, and be independent in daily living activities. The examiner found social and occupational impairment resulting in reduced reliability. The Veteran first underwent a VA examination during the appeal period in September 2013. At such time, the examiner noted a diagnosis of PTSD with occupational and social impairment with reduced reliability. She noted a review of the previous two examinations above, as well as the record in whole. She observed that the Veteran’s marriage ended in 1989 or 1990, and he currently lived alone. He did not have much contact with his ex-wife and had limited contact with his children, including none with his oldest daughter. He reported going dancing for many years after his divorce, but stopped recently. He also reported having one friend that he visited twice a week, and went to the mall to walk. The Veteran further reported that he had not worked since 2003 and was on Social Security disability. In this regard, the examiner noted that the record reflected that such was a result of neck and back pain. The Veteran reported that he would have difficulty working insofar as he had difficulty remembering things, and he was becoming more critical of people and was unable to get along with them. The examiner noted that the Veteran arrived on time for the appointment and was casually dressed with normal hygiene. He was oriented in all spheres with an appropriate manner, maintained eye contact, and was pleasant and cooperative. The Veteran’s speech was linear and goal oriented, his affect was broad and appropriate to the content of his speech, and his mood appeared normal. He reported difficulty remembering things, and experienced nightmares on a daily basis. Additionally, the examiner noted specific psychological symptoms of anxiety, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. The Veteran again denied suicidal ideation. The Veteran then underwent a final VA examination in June 2014. At such time, the examiner undertook a detailed review of the Veteran’s record, to include his treatment records. He diagnosed the Veteran with PTSD and an unspecified personality disorder. With respect to the latter disorder, the examiner noted that the Veteran had a history since childhood of being very critical of others, which continued as a predominate personality problem, costing him friendships and causing him to withdraw from people at times due to perceived rejection. He further observed that some lack of empathy and narcissism were a part of the personality disorder. The examiner found that the Veteran’s personality disorder was more disabling than his PTSD. Specifically, he attributed the symptoms of lack of empathy, irritability, difficulty in work and social relationships, and being excessively critical to the personality disorder. The examiner found that the Veteran’s psychiatric symptomatology, to include that resulting from both his PTSD and personality disorder, resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is commensurate with a 30 percent rating under the General Rating Formula. In this regard, the examiner stated that it was possible to differentiate the level of disability between the two diagnoses; however, he did not specifically do so, instead merely stating the personality disorder is more disabling and to further delineate would require resorting to speculation. The examiner observed that the Veteran lived alone and had five children with whom he had little contact. He would leave his home to go to the grocery store, Kmart, and restaurants. The Veteran also reported a desire to assist his former spouse financially. In this regard, he indicated that his ex-wife divorced him years ago for being too critical and cynical, and he alienated a lot of people because of his personality. The Veteran reported that he maintained a relationship with a friend, but was thinking about ending it as he was too mean and critical of him, but did not want to hurt him. He indicated that he enjoyed watching TV, reading magazines, and walking through shopping centers for exercise. The examiner noted that the Veteran reported that he had been a truck driver for 7 years, until 2000 when he got hurt, and now he cannot pass a physical as a result of hypertension and hearing loss. He also indicated that the Veteran reported that he did not get along well with others. The examiner noted that the Veteran had a loss of interest in things he formerly enjoyed, anxiety, chronic sleep impairment, and mild memory loss. He reported feeling estranged from others, which the examiner attributed to his critical nature. The Veteran reported difficulty sleeping, and anger outbursts occurring once a month, but had no history of violence. However, contrary to previous examinations, the Veteran did not report or show any concentration difficulties, or any significant hyper-vigilance. He did show a mild memory loss, primarily short term. He denied an exaggerated startle response; however, he did note that, after getting hearing aids he would startle at loud sounds. He further denied suicidal ideation, and self-destructive behaviour. The examiner further noted that the Veteran had good hygiene, appropriate behavior, good impulse control, cooperative and friendly attitude, normal psychomotor activity, anxious mood, and full range to mildly constricted affect. The Veteran’s eye contact was fair to good, and his speech was normal. The Veteran also underwent treatment and counseling throughout the period on appeal. Treatment records reflect the symptoms and functional impairment noted above, and do not note any additional symptoms. See e.g. February 2010 OREM Treatment Record (noting Veteran appears anxious and depressed, tearful at times; complains of concentration problems; complains of short and long term memory problems); July 2013 Provo Vet Center Treatment Records. Based on the foregoing, the Board finds that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity for the entire appeal period, thus warranting no more than his current 50 percent rating. In this regard, the Board notes that all the Veteran’s reported and documented symptoms fall within a 50 percent rating or lower under the General Rating Formula. The only symptom which the Veteran has endorsed that would warrant a higher rating is suicidal ideation. In this regard, the Court recently indicated that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). However, the Veteran did so in reference to an instance long before the period on appeal, and has since referred to it in a joking manner. Thus, the Board finds that he did not have credible suicidal ideation during the appeal period. The Veteran’s alleged primary functional impairment due to PTSD, based on his medical records and statements, is his inability to interact with people and establish and maintain effective relationships. However, the June 2014 examiner attributed much of the Veteran’s impairment, and specifically his ability to establish and maintain effective relationships, to a personality disorder. However, when it is not possible to separate the effects of a service-connected condition from a non-service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam). In this case, the Board finds the examiner was unclear in stating that the functional impairment could not be further delineated without resorting to speculation. Moreover, those such symptoms have been noted elsewhere to be currently and historically attributed to the Veteran’s PTSD. Thus, the Board has considered all noted symptoms as attributable to the PTSD. Regardless, while the Veteran has shown he has difficulty in dealing with other people, and establishing and maintaining relationships, it is not shown to be so severe that he has an inability to do so. Rather, the record reflects he has maintained some, albeit minimal, contact with his family, and at least one close friendship. Furthermore, he reports frequenting businesses in the community, to include the grocery store, Kmart, restaurants, and shopping malls, thereby demonstrating an ability to interact with people on a daily or weekly basis. Moreover, pertinent to the Veteran’s occupational functioning, while he has not worked during the appeal period, the record reflects that his PTSD does not result in more than occupational impairment with reduced reliability and productivity. Specifically, while his difficulty in dealing with people and mild memory loss would impact his ability to do his job, the record reflects that he is unable to work due to physical disabilities. Specifically, it was noted that he was placed on Social Security disability as result of neck and back pain, and he reported that he could not pass a physical as a result of hypertension and hearing loss. Therefore, based on the foregoing, the Board finds that the Veteran’s PTSD is manifested by symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. Therefore, a rating in excess of 50 percent for such disability is not warranted. In reaching such determination, the Board acknowledges the Veteran’s sincerely held belief that the severity of his PTSD symptoms warrants a higher disability rating. However, as the Veteran’s PTSD is not manifested by symptoms of a nature, severity, frequency, or duration contemplated by a 70 or 100 percent at any point during the appeal period and does not result in more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment, a rating in excess of 50 percent is not warranted. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected PTSD; however, the Board finds that the Veteran’s symptomatology referable to his PTSD has been stable throughout the period on appeal. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017), (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s increased claim. As such, that doctrine is not applicable in the instant appeal, and his increased rating claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU. The Veteran contends that he is unable to work due to his service-connected disabilities of PTSD, bilateral hearing loss, and tinnitus. Specifically, he contends that his PTSD precludes employment, and his hearing loss and tinnitus limit his ability to hear such that he could not hear communications over his truck radio. However, upon review of the evidence, the Board finds that the Veteran’s service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation at any point during the appeal period. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App.447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As an initial matter, the Board notes that the Veteran does not meet the schedular criteria for a TDIU at any point during the appeal period pertinent to his October 2010 claim. In this regard, for the entire appeal period, the Veteran is service-connected for PTSD, evaluated as 50 percent; tinnitus, evaluated as 10 percent; bilateral hearing loss, evaluated as 10 percent. Thus, the Veteran does not have a single disability evaluated as 60 percent disabling or more, or one disability evaluated at 40 percent or higher and the combined rating for all of his disabilities is 70 percent. The Board is precluded from assigning a TDIU rating on an extra-schedular basis under 38 C.F.R. § 4.16(b) in the first instance. However, if it is determined that the Veteran is unable to secure or follow a substantially gainful occupation as a result of such service-connected disabilities, the Board may refer the matter to the Director, Compensation Service, for consideration of entitlement to TDIU on an extra-schedular basis. Here, upon review of the evidence, the Board finds that the Veteran’s service-connected PTSD, tinnitus, and bilateral hearing loss did not render him unable to secure or follow a substantially gainful occupation. Pertinent to his claim for a TDIU, the Veteran has extensive training and degrees, including a B.S. in industrial education, auto repair schooling, and most pertinent to his claim, truck driving school. Turning to his work history, the Veteran worked as a salesman in an auto parts store, he owned his own business in rebuilding engines and collecting scrap metal, and, most recently, he worked as a truck driver. See October 2005 VA Examination Report; see also April 2010 Application for Increased Compensation Based on Unemployability. The Veteran was injured and stopped working in 2002. It was noted on all his VA examinations that he stopped working because of physical problems due to neck and back pain. After he stopped working, the Veteran began receiving Social Security disability benefits. SSA records indicate that he receives such disability compensation for a primary disability of degenerative disc disease, in addition to a secondary disability of PTSD. See August 2006 SSA Record. Neither disability was deemed severe enough at such time to warrant disability; however, due to the Veteran’s overall situation and the lack of available jobs he could perform, disability was granted. Id. While SSA determinations are probative evidence to VA determinations, they are not dispositive to the outcome of such decision. Rather, SSA evidence considers all disabilities, including those which are not service-connected, such as the degenerative disc disease. Thus, the probative value of such records is diminished in determining whether the Veteran is precluded from securing or following gainful employment as a result of service-connected disability alone. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In addition to the impairment discussed in the previous section referable to his PTSD, the Veteran has difficulty hearing due to his bilateral hearing loss and tinnitus. In this regard, the Veteran underwent a September 2013 VA examination for his ear disorders. The examiner noted that the Veteran has difficulty hearing background noises, as well as more difficulty understanding accents, consonants, electronically generated voices and recordings. He has difficulty hearing instructions, warnings, and things on the radio at work. He was noted to have 84 percent speech discrimination in his right ear and 90 percent discrimination in his left ear. The Board recognizes that such hearing problems cause difficulties at work; however, such impairment is generally minor. The question of employability is ultimately a legal one, not a medical one. The Board finds the Veteran’s service-connected disabilities do not render him unable to secure and follow substantially gainful employment. In this regard, the record reflects that the Veteran would function successfully in his position as a truck driver notwithstanding his nonservice-connected physical disorders. His PTSD primarily manifests in impairment relating to interacting with people, as such a solitary occupation would not be precluded, such as a truck driver. Further, while the Board notes the hearing loss and tinnitus cause difficulties in communication, the difficulties at work are minor, the Veteran maintains a high speech discrimination score, uses hearing aids, and could further mitigate such difficulties. Therefore, the Board finds that the Veteran’s service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, as such, that doctrine is not applicable in the instant appeal, and a referral for extraschedular consideration of the Veteran’s TDIU claim is not warranted. The claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel