Citation Nr: 18123785 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 17-50 224 DATE: August 3, 2018 ORDER Entitlement to an initial disability rating greater than 30 percent for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the initial rating period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran’s service-connected disabilities do not prevent him from securing and following substantially gainful employment throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 30 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1960 to October 1983. His decorations include the Purple Heart. 1. Entitlement to an initial disability rating greater than 30 percent for service-connected PTSD. The Veteran asserts that the initial 30 percent disability rating does not accurately reflect the level of severity of his service-connected PTSD. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2017). The Veteran’s service-connected PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. This disability is rated under the General Rating Formula for Mental Disorders, which provides as follows: A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. A 70 percent disability rating is warranted when 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 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent disability rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, 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; mild memory loss (such as forgetting names, directions, recent events). The Veteran’s initial claim of service connection for PTSD was received in October 2016. Service connection for PTSD was ultimately awarded in February 2017, wherein an initial 30 percent disability rating was assigned effective as of October 17, 2016. A private medical record from H. J., M.D., dated in October 2016, shows that the Veteran appeared his stated age, was cooperative, and answered questions appropriately during the assessment. There was no aphasia or dysarthria. Vocabulary was high school level. There was no pressured speech, and tone and volume were normal. The Veteran was alert and aware of his surroundings. Affect was congruent to his mood. Thought process had no flight of ideas or looseness of association. The Veteran denied any auditory, visual, or tactile hallucinations. He denied any suicidal or homicidal though or any self-injurious behavior. There were no delusions. He reported a problem with his memory - feeling his memory was good, but being told by his wife that he remembers that he wants to remember. He was alert and oriented. The diagnosis, in pertinent part, was PTSD. Dr. J. also identified diagnoses of hyperlipidemia, eosinophilic granuloma, knees pain, residuals of a left leg gunshot wound, obstructive sleep apnea, and erectile dysfunction. Dr. J. added that the Veteran had a major impairment in several areas of functioning, to include work and housework. A VA examination report dated in February 2017 shows that the Veteran was diagnosed with PTSD. His level of occupational and social impairment was said to be 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. The Veteran described being married to his wife of 49 years, and that the only problem his mental health condition caused in the marriage was when he would have nightmares and accidentally hit her in his sleep. He denied irritability, being able to work through differences. He reported a great relationship with his two adult daughters. He would keep in contact with fellow service members, socialize with neighbors and acquaintances at the beach, and kept a close friend that he had since school. He enjoyed fishing, camping, and travelling. He would drink two to three beers per night for sleep, but did not meet the criteria for an alcohol abuse disorder. Mental status examination revealed that his general appearance was neat and well-groomed. Psychomotor activity was within normal limits. Speech was normal. Eye contact was good. Attitude toward the examiner was cooperative. Affect was tense. Mood was “moderate stay on even keel” with underlying irritability noted. There was mild anxiety with hypervigilance. He would stare at people, get up and night to check doors and windows, and avoid crowds and strangers. Anxiety would be triggered by news stories. Attention was good and he was oriented in three spheres. Thought process and content were unremarkable. There were no delusions. He understands the outcome of behavior. Intelligence was average and insight was good. There were no hallucinations, or suicidal or homicidal thoughts. Impulse control was very good. No memory problems were noted. He would sleep six to eight hours with the use of a continuous airway pressure (CPAP) machine. He endorsed difficulty falling and staying asleep, as well as, nightmares. The symptoms actively related to the PTSD were said to include anxiety, suspiciousness, chronic sleep impairment, flattened affect, irritability, nightmares, and decreased concentration. He was said to be competent to manage his financial affairs. Having carefully considered the evidence of record the Board finds that the preponderance of that evidence shows that the Veteran’s PTSD does not meet the criteria for the assignment of the next higher 50 percent disability rating. In this regard, the VA examination in February 2017 concluded that the Veteran’s PTSD resulted in a level of occupational and social impairment characterized by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. This squarely meets the criteria for a 30 percent disability rating under the General Rating Formula for Mental Disorders. In order to meet the criteria for a 50 percent disability rating, the Veteran’s disability would have to be manifested primarily by 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. While the Veteran exhibited a flattened affect, the remaining criteria for the assignment of a 50 percent disability rating have not been demonstrated. The Board finds that overall, his disability picture over the entire course of the appeal meets the criteria for an initial 30 percent disability rating. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. In sum, considering all applicable rating criteria, the Board finds that the level of impairment presented by the Veteran’s service-connected PTSD over the course of this appeal warrants no more than the currently assigned initial 30 percent disability rating. Consideration has been given to the assignment of staged ratings since the date of the Veteran’s claim (i.e., different percentage ratings for different periods of time), however, there appears to be no identifiable period of time since the date of claim during which a staged rating for the PTSD would be warranted. 2. Entitlement to a TDIU. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). In his March 2017 claim for entitlement to a TDIU, the Veteran indicated that he can no longer work due to his service-connected PTSD. As noted above, the Veteran’s PTSD is rated as 30 percent disabling. Service connection has also been established for a right knee disability, rated at 10 percent; a left knee disability, rated at 10 percent; tinnitus, rated at 10 percent; a right finger disability, rated at 10 percent; a lung disability, rated at 10 percent; a scar of the left leg, rated at 10 percent; a right elbow disability, rated noncompensable; residuals of a gunshot wound to the left leg, rated noncompensable; and bilateral hearing loss, rated noncompensable. The combined disability rating over the entire period on appeal is 60 percent. Thus, the Veteran does not meet the schedular criteria for an assignment of a TDIU. See 38 C.F.R. § 4.16 (a). Even though the percentage requirements of § 4.16(a) are not met, if the evidence establishes that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16 (b). In this case, however, the Board has determined that referral for extra-schedular consideration for TDIU under 38 C.F.R. § 4.16 (b) is also not appropriate in this case. The reasoning is as follows. The Veteran indicated that he cannot work as a result of his service-connected PTSD. The February 2017 VA examiner concluded that the level of occupational impairment was 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. There was no indication that he was unable to follow substantially gainful employment due to service-connected disability. Employment information submitted by the Veteran’s most recent employer, dated in August 2017, shows that the Veteran voluntarily retired in October 2003. The Board has considered the October 2016 private medical record from Dr. J., wherein it was indicated that the Veteran had major impairment in several areas of functioning, to include work and housework. Dr. J., however, did not specify that this impairment was the result of service-connected disabilities, as he included among the diagnoses disabilities for which service connection has not been established. Additionally, while it was concluded that there was impairment in functioning, it was not concluded that he was unable to engage in substantially gainful employment. As such, the Board finds that the evidence of record does not demonstrate that the Veteran is unable to secure and follow a substantially gainful employment as a result of his service-connected disabilities at this time; and referral to the Director of Compensation for extra-schedular consideration of TDIU under 38 C.F.R. § 4.16 (b) is not appropriate. See 38 C.F.R. §§ 3.102, 4.16(b). The Veteran is competent to report the symptoms he experiences. However, the Board finds that the objective medical evidence and the opinions of the medical professionals to be more probative regarding the effect of the Veteran’s disability on his ability to obtain and maintain employment. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. DAVID GRATZ Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel