Citation Nr: 20006262 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 17-47 774 DATE: January 24, 2020 ORDER Entitlement to a rating greater than 70 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s psychiatric disorder did not cause total social and occupational impairment at any time during the appeal period. 2. The Veteran’s service-connected disabilities did not preclude the Veteran from securing and following gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 2002 to December 2006. As a threshold matter, the Board notes that the Veteran was denied entitlement to TDIU in an August 2014 rating decision. The Veteran did not appeal the denial of entitlement to TDIU; however, a TDIU claim is part of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the TDIU claim remains part of the increased rating claim. 1. Entitlement to a rating in excess of 70 percent for PTSD. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as, industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran’s PTSD has been assigned a 70 percent rating for the entire appeal period pursuant to Diagnostic Code 9411. Diagnostic Code 9411 follows the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent evaluation 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The maximum schedular rating of 100 percent 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths 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 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). Symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve 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, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Id. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Id. The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). With regard to the merits of the Veteran’s claim, the Board has reviewed and considered the evidence of record from one year prior to August 2013, the date of the Veteran’s claim, and finds that an increased rating is not warranted at any time during the appeal period. Factual Background The evidence shows that in January 2013, the Veteran presented to the Miami VAMC emergency department and requested a renewal of his PTSD medications. He reported that his symptoms are stable and that he feels well in general. He denied suicidal/homicidal ideation. Similarly, in an April 2013 psychiatric follow-up, the Veteran presented to the Hollywood CBOC for a refill of his PTSD medications since he was returning to Ecuador in three weeks. He reported occasional nightmares but noted that he was stable and compliant with medications. He further denied symptoms of psychosis, mania or depression, and suicidal ideation. In his May 2015 PTSD examination, the Veteran reported being married since 2006 and that he has two step-daughters. He reported that he has a good relationship with his daughters and that his marriage was good “under the circumstances.” He stated that his wife supports him but that they decided not to live together because his PTSD symptoms flared up; however, they spend vacations together mainly in Ecuador three times a year. The Veteran reported that he currently lives in Ecuador the majority of the year, and that he has a close relationship with his parents and his siblings. He also reported that he enjoys traveling when he comes to the United States, and that he loves driving because it relaxes him. He reported having numerous acquaintances and two close friends who are former “Vets” that live in different states, but he remains in touch with them. Occupationally, the Veteran reported being unemployed currently, and that he was attending school studying for his AA degree in computer science. He reported a past work history of valet parking in August 2010 to November 2011; a job as an assistant professor of science for 3 months, and he worked delivery for several different restaurants. He stated that he moved to Ecuador in February 2013 and worked security for a large oil company, which required him to go into the jungle and guard the perimeter, but this triggered his PTSD and he quit after three months. He further reported that he opened a “collective” business in November 2014 which included video/card games and figurines, and that he had a side shop selling hamburgers. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and inability to establish and maintain effective relationships. The examiner concluded that the Veteran exhibits occupational and social impairment with deficiencies in most areas. In December 2015, the Veteran requested a referral to a psychiatrist for PTSD. He reported experiencing a lot of stress which led to the exacerbation of Bell’s Palsy symptoms which causes significant pain. He described previous problems with his anger, being short-tempered, and emotional dysregulation prior to medication, but he denied a history of physical fights or property destruction. It was also noted that he had problems with sleep and difficulty explaining his symptoms with regard to stress. Socially, the Veteran reported being separated but noted that he talks to his wife and two daughters weekly. He stated that he has a lot of contact with family and friends and that he is social, but he does not go out of his way to get together with someone. He further stated that he was involved in the community in Ecuador, and that he was working on starting a meetup for internet gaming. Occupationally, the Veteran reported working full-time at The UPS Store. Additionally, it was noted that he has an Amazon store, and that he was still working as an import retailer in Ecuador; however, the Veteran indicated he would be closing the business. Mental status examination showed the Veteran was oriented in all three spheres, and well-groomed with a cooperative and friendly attitude. He reported that his mood was “fine.” Attention and concentration were noted as fair and distracted; thought process and content were unremarkable. There was no psychomotor activity, and the Veteran denied hallucinations, delusions, and suicidal/homicidal ideation. In a subsequent December 2015 psychiatric note for medication management, the Veteran reported being on his PTSD medications for nine years and that they work well. He explained that the citalopram has allowed him to be more level and that it keeps him going and helps with anger. He also stated the Zolpidem reduces dream disturbances more than his previous medications. The Veteran reported multiple somatic complaints and two instances of flashbacks related to service. He reported that he obtained a new job working at The UPS Store and that he enjoys his business of running a gaming/fast food store. Analysis Based on the above and remaining evidence, the Board finds an increased rating is not warranted at any time during the appeal period. As noted above, the Veteran has been able to maintain stability with medications as evidenced by his ability to control his anger, attend school, maintain employment, and socialize with family and friends. This finding is further evidenced by the Veteran’s own statement has he reported that citalopram has allowed him to be more level and helps with anger, while Zolpidem reduces dream disturbances. Although he reported nightmares in his April 2013 evaluation, he also indicated that they were occasional, which would not be of the severity, frequency, or duration that would warrant a higher rating. In his April 2013 evaluation, he also reported that he was last seen in crisis in the Miami emergency room; however, the evidence shows that the Veteran reported otherwise noting that his symptoms were stable and that he feels well in general. The Board recognizes that the May 2015 examiner found that the Veteran exhibited occupational and social impairment with deficiencies in most areas, which is indicative of severe symptoms; however, this finding does not equate to total social and occupational impairment. As described above, the Veteran maintained social relationships with his wife, stepdaughters, parents, siblings, two former service-members, and had numerous acquaintances. Additionally, the Veteran was able to obtain various jobs. While the record shows evidence of a varied employment history, there is nothing in the record that suggests the Veteran’s change in employment was affected by his PTSD, except for a security job he described having in Ecuador. Otherwise, the Veteran was able to run two businesses involving collectibles and selling hamburgers. The Board further notes that although the May 2015 examiner found that the Veteran had become more withdrawn, hypervigilant, and anxious after his business was robbed, and that his anger and irritability caused increased conflict with his wife, the examiner concluded that the Veteran was capable of functioning in an occupational setting. The Board also recognizes that the May 2015 examiner found that the Veteran appeared anxious and depressed; however, he also noted that the Veteran’s memory and concentration were good; he was oriented in all three spheres; he was neatly and casually dressed and well-groomed, and his attitude was polite and cooperative. Additionally, the Veteran’s thought content and psychomotor activity were within normal limits; judgment and insight were adequate, and the Veteran denied hallucinations, delusions, suicidal ideation, and homicidal ideation. In fact, the Veteran has consistently denied these symptoms and there is no evidence of any other similar symptoms that would warrant a higher rating. Subsequent treatment records throughout 2016 continue to show that the Veteran did not exhibit total impairment as he reported having a stable mood and that he was able to manage several aspects of his life, which included buying a home, managing multiple conferences at work, taking a second job, traveling, and he maintained enjoyment of his hobbies. For instance, in his January 2016 mental health visit, the examiner noted that the Veteran did not report significant arousal symptoms and that brief cognitive behavioral therapy (CBT) could be used for the Veteran’s cognitive distortions/assimilated thoughts regarding the trauma. In a March 2016 individual mental health session, the Veteran reported that a fuel truck hit his car and that he was able to remain calm and assertive after the company initially resisted. In an April 2016 mental health visit, the Veteran reported that he was doing well, and was busy managing several areas of his life, including closing on a house soon, and he reported managing three conferences for work. In August 2016 he reported a stable mood without worsening anxiety or depression. He specifically stated, “I’m doing fine right now.” The Veteran reported that he recently traveled to California for marketing research for a gaming company and was applying for an overseas job. He further reported that he continues to work with sister. In September 2016, he reported increased somatic worries, but noted that overall his mood is stable. He stated that he took on a second job as an Uber driver and was still enjoying hobbies and interests. The Board recognizes that the Veteran reported an increase in depression symptoms in July 2016; however, he attributed this increase to being worried about unrelated medical conditions and stated that his symptoms only lasted for about one week. Similarly, he reported an increase in depression in August 2016, but attributed this to having stopped his medication; however, he stated that his mood has since stabilized. Moreover, in November 2016, the Veteran reported that he reduced his socialization for fear of being in an intimate relationship; however, in a subsequent November 2016 visit, he reported having an improved mood after returning from a gaming convention in California and that he was looking forward to returning to school in January. For these reasons, the Board finds the preponderance of evidence is against the claim as the Veteran has remained social, managed two jobs, including running a business, and has maintained a stable mood with his current medications. Moreover, any rise in symptoms have not been of the severity, frequency, or duration to warrant a higher rating. Therefore, as the preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a TDIU. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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). In Ray v. Wilkie, 31 Vet. App. 58 (2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Id. at 73. Here, the Veteran met the percentage requirements for a TDIU as of May 5, 2009 based on service-connected disabilities of PTSD, right shoulder residuals, right shoulder scars, right knee disability, nephrolithiasis, and chronic headaches. In his VA Form 21-8940, Application for TDIU, the Veteran reported that his PTSD prevents him from securing or following substantial gainful employment. He reported that he last worked in June 2012. After considering the evidence of record, the Board finds that the Veteran’s service-connected disabilities do not preclude the Veteran from securing or following gainful employment. Although the Veteran and his representative contend that the Veteran’s service-connected disabilities preclude employment, the evidence shows otherwise. Initially, the Board notes that the Veteran’s attorney relied on findings from the Social Security Administration (SSA) as evidence that the Veteran is precluded from working. The Board recognizes that documents from SSA show that the Veteran was deemed disabled due to anxiety disorders and other unspecified arthropathies; however, the Board is not bound by SSA decisions. Further, as acknowledged by the Veteran’s attorney in his April 2018 correspondence, the Veteran reported in an SSA Disability Report that his PTSD, both shoulders, both knees, and his sleep disorder contribute to his inability to work; however, a TDIU only considers disabilities which the Veteran is service-connected for. Here, the Veteran is not service-connected for a left shoulder disability, left knee disability, or a sleep disorder. Moreover, the Veteran has not asserted, nor does the evidence show, that the Veteran’s other service-connected disabilities, including his right shoulder, right knee, nephrolithiasis, or headaches, preclude him from maintaining substantial gainful employment. Further, other evidence of record shows that the Veteran was substantially and gainfully employed. As mentioned previously, in his May 2015 PTSD examination, the Veteran reported that he worked as a valet parker from August 2010 to November 2011. He reported working for three months in June 2012 as an Assistant Professor, and he worked for several different restaurants. Although he reported that he was unable to work a security job due to PTSD triggers, the record does not show that his PTSD symptoms caused problems with any of his other jobs. Instead, he reported that he quit his job as a valet parker to move to Miami due to marital conflict. Moreover, the Veteran owned and operated a “collective” business, after moving to Ecuador in 2014, and had a side shop selling hamburgers. Although he reported that he closed his business after being robbed twice, the evidence shows otherwise. In his December 2015 initial assessment, the Veteran reported that he was still working as an import retailer in Ecuador. It was also noted that he had an Amazon store and was working full-time at The UPS Store. Additionally, in a March 2016 treatment session, he reported that his store in Ecuador was doing well and that he found someone to assist with service there. Other evidence which further support that the Veteran was gainfully employed includes a September 2016 psychiatric visit where the Veteran stated that he took on a second job as an Uber driver; and, a November 2016 psychiatric visit where he reported that he continues to work with his sister at UPS. Further, in an April 2017 Rehabilitation Needs Inventory Form for vocational rehabilitation benefits, the Veteran wrote that he was a store owner from 2009 to 2015, and he indicated that he worked as a supervisor for The UPS Store from 2015 to 2017. It was also noted that he worked as an Uber driver and a school bus driver. The Board recognizes that the Veteran has submitted a vocational opinion from S.B. who concluded that the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected disabilities; however, the Board affords this opinion low probative weight because it includes several inconsistencies with the record. For example, the clinician noted that the Veteran has not worked since 2007, which clearly contradicts the evidence outlined above. To the contrary, the Veteran has reported several instances of employment since 2007, including running two businesses. Further, the clinician included medical literature which explains how individuals, such as the Veteran, would be expected to miss several days of work due to physical and mental impairments; however, in reporting his work history, the Veteran has not asserted that he missed several days of work due to his PTSD or any other service-connected disability, aside from his report of quitting a security job which triggered his PTSD. In fact, in a December 2015 psychiatric note, he reported that he enjoyed his business of running a gaming/fast food store. Although he reported that it was not financially manageable, he reported otherwise in his May 2015 PTSD examination noting that he “made good money.” Therefore, although the clinician noted that she reviewed the Veteran’s entire claim file, her opinion suggests otherwise as it clearly contradicts the record. Therefore, the Board finds the opinion is low in probative value. The Board also recognizes the attorney’s contention that evidence of the Veteran’s unemployability is shown by the May 2015 examiner’s conclusion that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas. While this finding may indicate some occupational impairment, it does not equate to total disability. The Board notes that the same examiner also concluded that the Veteran is capable of functioning in an occupational setting. Indeed, he specifically noted that the Veteran’s PTSD symptoms may be inhibiting him from finding employment, but it does not preclude him from being gainfully employed. For the reasons outlined above, the Board agrees with the May 2015 examiner as the evidence clearly shows that the Veteran’s PTSD and other service-connected disabilities did not preclude the Veteran from securing or following gainful employment. As such, the Board finds the preponderance of evidence weighs against the claim and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the claim for entitlement to TDIU is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.