Citation Nr: 21068687
Decision Date: 11/12/21	Archive Date: 11/12/21

DOCKET NO. 15-12 386
DATE:  November 12, 2021

ORDER

Entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed.

Entitlement to service connection for fibromyalgia is dismissed. 

Entitlement to a rating in excess of 50 percent prior to August 27, 2019, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is denied.

Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is granted.

FINDINGS OF FACT

1. In an August 19, 2021 submission, the Veteran's attorney indicated that the Veteran was withdrawing the issues of entitlement to service connection for GERD and fibromyalgia. 

2. For the appeal period prior to August 27, 2019, the Veteran's PTSD most closely approximated occupational and social impairment with reduced reliability without occupational and social impairment with deficiencies in most areas. 

3. For the appeal period beginning on August 27, 2019, the Veteran's PTSD most closely approximated occupational and social impairment with deficiencies in most areas without total occupational and social impairment.

4. The Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for withdrawal for entitlement to service connection for GERD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for withdrawal for entitlement to service connection for fibromyalgia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

3. The criteria for an increased rating for PTSD, rated as 50 percent disabling prior to August 27, 2019 and 70 percent thereafter, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.130, Diagnostic Code 9434.

4. The criteria for entitlement to a TDIU have 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 February 1989 to February 1992.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Portland, Oregon. Jurisdiction of this appeal is currently with the RO in Winston-Salem, North Carolina. 

This case was most recently before the Board in August 2018, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board directed the RO to afford the Veteran an additional VA psychiatric examination, obtain legible lay statements previously submitted, and to obtain an opinion as to the Veteran's functional impairment of his irritable bowel syndrome (IBS). On remand, the RO obtained the requested evidence. Thus, the RO substantially complied with the August 2018 Board remand directives. See 38 U.S.C. § 5103A (b) (2012); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The case has now been returned to the Board for appellate action.

Withdrawal of Claims

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. § 19.55. Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 19.55. 

In an August 19, 2021 submission, the Veteran's attorney indicated that the Veteran no longer wished to pursue his appeals, and wanted to withdrawal his appeals as to his claims for entitlement to service connection for GERD and fibromyalgia. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. This request for withdrawal of the issues on appeal meets the content, form, and timing requirements of 38 C.F.R. § 19.55(b) and is, therefore, deemed a withdrawal of the claims. See 38 C.F.R. § 19.55(c); see also Hembree v. Wilkie, 33 Vet. App. 1 (2020). As a result, no allegation of error of fact or law remains before the Board for consideration with regard to these issues. Accordingly, the Board does not have jurisdiction over these issues, and the claims for entitlement to service connection for GERD and fibromyalgia are dismissed.

Increased Rating - PTSD

The Veteran asserts that he is entitled to higher ratings for his PTSD as his symptoms are worse than those contemplated by his assigned ratings. Specifically, the Veteran's attorney asserts that his PTSD symptoms manifest in unemployability, and the severity of such symptoms warrant higher ratings. See e.g. Third Party Correspondence, August 19, 2021. Additionally, the Veteran's attorney asserts that the evidence supports a finding for higher ratings for his PTSD and relies on medical evidence and statements submitted by the Veteran's family and friends showing severe anger problems, inappropriate behaviors and interactions, and difficulty staying out of trouble. See Correspondence, September 13, 2017. 

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. 

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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). 

The veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The assignment of a particular diagnostic code is 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. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims.

The Veteran's PTSD is rated under the General Rating Formula for Psychiatric Disabilities (General Formula). 38 C.F.R. § 4.130. 

Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A Veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).

Under the General Rating Formula for Mental Disorders per 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. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 70 percent rating is warranted if the disability is productive of 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 worklike setting); inability to establish and maintain effective relationships. Id.

A schedular maximum 100 percent rating is warranted if the disability is productive of 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. 

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. 

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). 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. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment.

The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in August 2020. As such, the DSM-5 applies, and the GAF scores will not be considered.

Turning to the evidence, of record is a January 2012 statement submitted by D.M. In pertinent part, D.M. stated that he remembered the Veteran expressing difficulty with regard to his stomach and digestion. D.M. indicated that the Veteran was not energetic or happy in 1997 due to his stomach problems, and that he used to be a rock singer in a band but could no longer continue working due to his stomach. D.M. indicated the Veteran tried to "make light" of the situation or "laugh it off," but did not look well, and appeared to need help. 

Of record is a July 2012 statement submitted by the Veteran's wife, G.B. In pertinent part, G.B. indicated that the Veteran was always depressed, tried to be in a happy mood, and expressed desire to return to work in order to support his family. G.B. indicated the Veteran expressed worry and depression about his situation, was a good person and tried hard to "stand and support" his family, and had a lot of health issues that prevented employment. 

VA treatment records from February 2012 to May 2012 show that the Veteran typically presented as emotionally stable, enjoyed stable relationships with others, exhibited reasonable control over impulses and behavior, was more wary and sensitive in interpersonal relationships than the average adult, was generally satisfied with himself, married three times, experiencing conflict with his second wife over custody, and was unemployed. Notably, a May 2012 VA treatment record indicates the Veteran experienced clinically significant symptoms of PTSD. See VA treatment record, May 2, 2012. 

The Veteran was afforded a VA psychiatric examination in November 2012. At that time, the examiner diagnosed adjustment disorder with mixed anxiety and depressed mood secondary to IBS and PTSD; the examiner indicated that it was possible to differentiate what symptoms were attributable to each diagnosis. Specifically, the examiner attributed the following symptoms to service-connected PTSD: frequent thoughts about his experiences in Desert Storm; psychological distress in response to situations that resemble the traumatic events; tries hard not to think or talk about his experiences; avoids other veterans so he will not have to talk about military topics; difficulty falling asleep in nightmares with negative and violent military content that includes the demise of someone; does not like loud noises; avoids fireworks displays because they sound like bombs going off during Desert Storm, and they cause him to feel "shaky" and "out of control;" irritability; difficulty concentrating; and a sense of foreshortened future, which is related to a combination of his traumatic experiences and his anxiety about his physical ailments. 

The November 2012 VA examiner attributed the following symptoms to nonservice-connected adjustment disorder: low energy; lack of interest in important activities; sadness; tearfulness; lack of appetite; poor sleep; psychomotor retardation; fatigue; suicidal thoughts without plan; spends a significant amount of time worrying about numerous issues, including physical symptoms, whether he will be able to follow through with plans he has made, finances, his mortality, whether this family will survive financially after his death; physical symptoms such as rapid heart rate, urinary and bowel urgency, headache, "feeling crystallized from the inside out," tingling through his veins; racing thoughts; "tunnel vision," and a belief that he is dying. 

The November 2012 VA examiner opined the Veteran's service-connected PTSD most closely approximated 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 examiner found that it was possible to differentiate what portion of the occupational and social impairment was caused by each diagnosed mental disorder, and opined that the majority of the occupational and social impairment were a direct result of his physical symptoms. In this regard, the contribution of his mental disorders to his functional impairment was mild, and included lack of motivation, worrying, fear and a lack of interest. The majority of the impairment was attributable to his nonservice-connected adjustment disorder. 

At his November 2012 VA examination, the Veteran stated he was never close with his brother, did not talk to his brother very often outside of occasional social media interactions, talked to his parents a few times a month over the phone, and lived with his wife and son. He had been married three times; he had divorced twice and attributed interpersonal conflict and some psychiatric symptoms as causes for his divorces. The Veteran indicated his third marriage was "awesome," and they did not have any problems outside of some jealous and "snapping." He reported he avoided many activities due to his physical impairments. The Veteran had four sons, and saw his oldest son a few weeks and year and spoke frequently on the phone. He indicated that his middle sons experienced abuse from his second wife and her boyfriend. The Veteran stated he was "absolutely" involved in the upbringing of his youngest son, and was the primary child care provider when his wife worked. With regard to social functioning, the Veteran indicated he had an active social life until his IBS symptoms became so severe that he was afraid to make plans or go anywhere. Prior to that, he had been the lead singer in a band, and was the "karaoke king," however he did not have much of a current social life attributable to physical impairments. He stated he enjoyed singing, but experienced crying spells when singing, and there were many activities he no longer enjoyed. He stated he felt "numb." 

With regard to occupational and educational history, the Veteran indicated in November 2012 that he did well in school and experienced difficulty maintaining regular employment following discharge from the military. The Veteran was most recently employed in 2008, working in a temporary position as an electrician's assistant at VA. He reported that the most significant problems on his occupational functioning were IBS symptoms and apathy; he had been terminated a few times and he suspected such terminations were due to physical limitations. 

Psychiatric symptoms reported by the Veteran and attributable to his PTSD in November 2012 are as noted above. Symptoms attributable to his PTSD included depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and disturbances of motivation and mood. Mental status examination showed the Veteran presented as friendly and cooperative; arriving hours early; observed to socialize with VA employees, as he was a former employee there; appropriate hygiene; anxious mood; full range of affect; displayed a tendency to approach most topics in a joking manner, though it was apparent on several occasions that tearfulness was lurking just under the surface; very open; detailed; articulate about certain topics; displayed difficulty talking about emotional vulnerability or behaviors that would make him appear weak; linear thoughts and free of delusional content; good memory functioning; concentration significantly impaired; required repetition of dozens of questions because he lost his train of thought; fair insight; judgment and impulse control were intact; and denied any suicidal or homicidal ideation, thoughts, plan, or intent. The November 2012 VA examiner concluded that the Veteran's mental health treatment focused more on the effects of his physical limitations and impairments, and thus his service-connected PTSD was not his primary diagnosis. 

Of record is a November 2012 and December 2012 psychological evaluation completed by Dr. M.O. At that time, Dr. M.O. indicated he was referred for a psychological evaluation by his DHS caseworker in order to assess any psychological factors that may impact his ability to function safely and effectively as a parent to his middle two children. In pertinent part, the Veteran reported he was under investigation of "mental abuse" with respect to his ex-wife and custody dispute of their two children. Specifically, the Veteran indicated he was aware of the allegation that he coached his sons regarding abuse by their mother, had police trouble due to "parental interference," and physically taking custody of the boys that was inconsistent with the visitation and divorce agreement. The Veteran reported he suffered from physical and mental health difficulties. By his own report, his PTSD symptoms included hypervigilance, overreaction to loud noises, occasional nightmares, and intrusive memories of his time in the Persian Gulf. His other psychiatric symptoms were attributable to his anxiety and depression, and related to his IBS. 

At his psychological evaluation, the Veteran described himself as an experienced and involved parent, and that he experienced physical and sexual abuse at the hands of his second ex-wife. He stated he was doing a "superb" job raising his children and saw himself as apparent with a variety of strengths including patience, understanding, sentimentalism, and being giving. He stated he used corporal punishment infrequently. The Veteran indicated that he believed taking care of his children was "much easier" than working because working was mandatory, but that providing care of his children was not mandatory. The Veteran reported he received treatment from VA; he recently changed primary care providers due to "harassment" by his previous primary care provider. 

Dr. M.O. relayed a lengthy mental health history that was obtained for the custody disputes between the Veteran and his second ex-wife, and indicated the Veteran was a regular use of marijuana, appeared to be combative towards DHS employees, and generally presented a confusing history as to his military service. The Veteran reported that he was currently married to his third wife, had a son with his third wife, and felt his home life was going extremely well with absolutely no problems, with the exception of his wife's jealousy. He reported stressors included DHS involvement, financial problems, and ongoing concerns about his health. The Veteran also indicated he used cocaine and hashish. 

Mental status examination conducted by Dr. M.O. showed the Veteran presented with good grooming and hygiene; arriving alone; casually attired; walked with a normal pace and gait; speech was of normal rate and cadence, and his words were clearly articulated; speech was not tangential nor circumstantial; thought process appeared linear and coherent, and thought content was congruent to circumstance; oriented in all spheres; affect appeared euthymic, and showed frustration during a few instances throughout the interview; and put in a good effort. The Veteran's thought processes tended to be quite concrete, and likely focused on his physical symptom. He described himself as extroverted and could make friends easily. Dr. M.O. found the Veteran had limited insight and judgment into his parenting and interactions with his sons, and seemed focused on defeating his ex-wife rather than the best interest of his children. Dr. M.O. opined the Veteran's perspective on women was not an overly respectful one, and that he may offend and alienate women through either his indifference or cluelessness about his choices and behaviors. 

The Veteran was afforded a VA examination in May 2013. At that time, the examiner diagnosed adjustment disorder with mixed anxiety and depressed mood and PTSD. The VA examiner indicated that it was possible to differentiate what symptoms were attributable to each diagnosis. Specifically, the examiner attribute the following symptoms to service-connected PTSD: reexperiencing traumatic events, avoiding things that might remind him of his traumatic experiences, and symptoms of hyperarousal. The VA examiner attributed the following symptoms to the nonservice-connected adjustment disorder: decreased energy, lack of interest in important activities, sadness, tearfulness, lack of appetite, poor sleep, psychomotor retardation, fatigue, and suicidal thoughts without plan. Symptoms attributable to both diagnoses included lack of interest in things that were once enjoyable, sleep disturbance, and irritability or anger. The examiner evaluated the Veteran's psychiatric symptoms attributable to all mental diagnoses to result in 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. 

At his May 2013 VA examination, the Veteran reported he had not worked since 2008, had been supported by his wife's income and his service-connected pension, and received mental health treatment but did not take psychiatric medication. He reported he stopped drinking alcohol but continued to use medical marijuana to help with his sleep and anxiety. Symptoms attributable to his service-connected PTSD included depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The VA examiner opined that it was less likely than not that his service-connected PTSD and nonservice-connected adjustment disorder would render him unable to obtain and maintain gainful employment. In this regard, the examiner noted that the Veteran' reported main difficulties in maintaining gainful employment had been related to his physical issues, and that his mental health issues did affect his job performance due to irritability and interpersonal conflicts, but did not cause him to lose his employment. 

Of record is a July 2013 updated psychological evaluation completed by Dr. M.O. At that time, in pertinent part, the Veteran had been attending regular supervised visits with his middle sons and described the visits as "excellent." The Veteran was unaware of having any mental health issues; he could not think of any cognitive, emotional, or psychological difficulties that impacted his ability to function satisfactorily as a non-custodial parent to his children. The Veteran indicated he continued to co-parent his youngest child with his third wife, and felt his parenting process was "excellent." Dr. M.O. found the Veteran's approach to parenting had improved after completing a parenting class. He no longer employed corporal punishment but still seemed to have limited insight into the effects of his high-acrimony divorce on his middle sons. The supervised visitation notes between the Veteran and his children were "relatively positive," and "positive and healthy." The Veteran indicated his PTSD was fairly stable. He considered himself happily married without significant issues associated with his home life. The Veteran completed a 12-session relapse prevention program successfully and did not have unexcused absences, completed all assignments, and shared openly and honestly in group meetings. 

Mental status examination in July 2013 showed the Veteran presented with good grooming and hygiene; arrived on time; casually dressed; walked with a normal pace and gait; thought processes were clear and coherent; thought content was congruent to circumstance; no oddities in speech were noticed; oriented; euthymic affect with little indication of occasional frustration. 

Of record is a July 2014 letter from S.H., a DHS employee, to the Veteran. In her letter, S.H. indicates the Veteran would no longer be provided services and was not welcome on premises due to violations of guidelines, disrespectfulness to staff, and rudeness. 

Of record is an April 2015 VA treatment record that indicates the Veteran reported having significant anger problems, and that he moved from Oregon to Florida to avoid getting in trouble. In this regard, the Veteran indicated he had gone through a difficult divorce in Oregon and was involved in a custody battle with his ex-wife; he had difficulties and wanted to "keep himself out of trouble." Since moving out of Oregon, the Veteran reported having less stress, feeling less irritable, less angry, being in a better mood, and having a better frustration tolerance. The Veteran reported he had not worked since 2008 due to his PTSD and significant back pain. He reported he was a singer for a year, and quit his job due to his PTSD, anger, and pain. 

VA treatment records from June 2015 to February 2016 indicate that the Veteran generally presented as casually and appropriately dressed; in physical pain; without disturbances of thought process or content; fair judgment and insight; without current or homicidal ideation, plan, or intent; and his wife was an identified source of reliable support. 

Of record is a February 2016 VA Form 21-4138 Statement in Support of Claim submitted by K.B. At that time, K.B. indicated all of his contact with his children had to be supervised; moved from Florida to Oregon, and spent 4 hours of supervised time with his children, and did not otherwise contribute as a parent. 

Of record is an April 2016 lay statement submitted by the Veteran's third and current wife, G.B. In her statement, G.B. stated the Veteran was a wonderful man, and treated her and his children well. G.B. indicated she had been married to the Veteran for eight years. 

VA treatment records from April 2018 to July 2019 indicate that the Veteran generally presented with a strained relationship with his oldest sons; daymares; casually dressed; in physical pain; alert and oriented; some anxiety; speech within normal limits; without evidence of disturbances of thought content or processes; fair insight and judgment; and without current homicidal or suicidal ideation, plan, or intent. 

The Veteran was afforded a VA examination in August 2019. At that time, the VA examiner diagnosed PTSD and major depressive disorder. The examiner found it was not possible to differentiate what symptoms were attributable to each diagnosis. The VA examiner opined the Veteran's psychiatric symptoms manifested in occupational and social impairment with reduced reliability and productivity. The Veteran reported that had not worked in 10 years; had difficulties interacting with others; had angry outbursts; sleep deprivation that caused problems with reliability and attention or concentration; and IBS caused problems with performance. He was in therapy for treatment of his PTSD and depression. 

Symptoms attributable to his psychiatric disorders in August 2019 included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; and impaired impulse control, such as unprovoked irritability with periods of violence. Behavioral observations showed the Veteran was well groomed; cooperative; anxious with a normal affect; circumstantial speech; fully oriented; denied suicidality, homicidally, and psychosis. 

The August 2019 VA examiner was asked, to the extent possible, to identify an symptoms and social and occupational impairment due to his service-connected PTSD and the effects on his ability to work. The VA examiner noted the Veteran reported difficulties interacting with others, having angry outbursts, sleep deprivation that caused problems with reliability and attention/concentration; IBS problems with performance; chronic pain that aggravated symptoms of sadness and anxiety; and difficulty focusing on work. The Veteran reported worsening of symptoms and that he had been fired from a temporary position. The VA examiner noted the Veteran had been experiencing symptoms of PTSD since the early to mid-1990s, experienced difficulty with work for 10 years; and that his symptoms seemed moderately disruptive as anger, anxiety, and depression are treatable. Additionally, the VA examiner noted the Veteran reported improvement of symptoms since use of medical marijuana. 

Of record is an April 2021 private psychiatric evaluation completed by Dr. M.C. At that time, Dr. M.C. found the Veteran's PTSD manifested in symptoms of substance abuse; social isolation; emotional numbing; inordinate anger; and such symptoms were compounded by IBS. During an interview with the Veteran, the Veteran reported trouble maintaining intimate relationships; struggling in marriages and with significant others; difficulties with coworkers and supervisors; and unemployment. Mental status examination showed the Veteran was cooperative; appropriate; with reasonable impulse control; speech was flat in rate, tone, and volume with speech latency; not agitated; thought content was negative for suicidal and homicidal ideation; did not have flight of ideas or looseness of associations; circumstantial, tangential, and perseverative regarding different aspects of his life; denied perceptual alterations, such as auditory, visual, or tactile hallucinations; and appeared to be cognitively intact. 

Dr. M.C. concluded that the Veteran had been previously misdiagnosed, but that his working diagnosis was PTSD with dissociative symptoms and delayed expression; the Veteran did not have evidence or satisfy the criteria for diagnosis of personality disorders. Dr. M.C. challenged the August 2019 VA examination report and indicated the Veteran's psychiatric symptoms were not treatable, and found the Veteran's symptoms of obsessional rituals, impaired impulse control, and inability to establish and maintain effective relationships were not symptoms that responded to psychiatric intervention. Rather, Dr. M.C. noted these symptoms persisted, and rendered the Veteran more disabled as his symptoms progressed. Dr. M.C. opined the Veteran's psychiatric symptoms had a significant impact on his occupational and social functioning, and continued to worsen without indication that the condition had improved. Dr. M.C. noted the Veteran's symptoms of irritability, anger, isolation, and lack of desire for interpersonal communication would prevent him from effectively communicating with others in a work environment. Dr. M.C. found the Veteran's insomnia and fatigue would impact his ability to focus and concentrate on tasks; and his inability to adapt to stressful situations further impacted his ability to work. Dr. M.C. concluded that the Veteran could never participate in an occupational setting when expected to be appropriate, reasonable, consistent, focused, communication, or task completion; the Veteran was unemployable as of 2008 in all employment settings. 

With regard to social impairment, Dr. M.C. opined the Veteran was completely social impaired after leaving the workforce; lived in mostly social isolation due to irritability, anger, and severe anxiety; had few relationships; struggled to maintain effective relationships with family members; and had extensive anxiety with regard to his IBS. Dr. M.C. concluded the Veteran was withdrawn; could no longer function in an occupational setting by 2008; struggled with any type of focus and concentration; and was trapped in a vicious cycle of intrusive memories, anger outbursts, dissociative episodes, and nightmares that consumed large portions of his day to day life. Further, the Veteran's condition was exacerbated by his IBS due to symptoms of frequent bowel movements; further exacerbation of anxiety; and severe social impairment would render the Veteran unemployable in any occupational setting. 

The Board notes that a review of the record shows that the Veteran has received treatment for his PTSD from both VA Medical Centers and private providers. However, there is no indication from the record that the Veteran's symptoms are worse than those reported in the various records discussed above. 

As an initial matter, the Board notes that, in addition to his service connected PTSD, the Veteran has been diagnosed with other psychiatric disorders, to include adjustment disorder with mixed anxiety for which service connection has not been granted. The Board finds that, to the extent it is possible to differentiate the symptoms and manifestations of his nonservice-connected psychiatric disorder from his service-connected adjustment disorder, such symptoms will be separately discussed herein. See Mittleider v. West, 11 Vet. App. 181 (1998).

Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 50 percent prior to August 27, 2019 for his PTSD. In this regard, the Veteran did not have occupational and social impairment with deficiencies in most areas during that time. The Board notes that the November 2012 and May 2013 VA examiners indicated the Veteran's symptoms of PTSD could be differentiated from his symptoms of an adjustment disorder. Specifically, the November 2012 and May 2012 VA examiners attributed reexperiencing traumatic events, avoiding things that might remind him of his traumatic experiences, symptoms of hyperarousal, frequent thoughts about his experiences in Desert Storm; psychological distress in response to situations that resemble the traumatic events; tries hard not to think or talk about his experiences; avoids other veterans so he will not have to talk about military topics; difficulty falling asleep in nightmares with negative and violent military content that includes the demise of someone; does not like loud noises; avoids fireworks displays because they sound like bombs going off during Desert Storm, and they cause him to feel "shaky" and "out of control;" irritability; difficulty concentrating; and a sense of foreshortened future, which is related to a combination of his traumatic experiences and his anxiety about his physical ailments. Therefore, the Board will only consider the impact of such symptoms on the Veteran's occupational and social impairment. Taking such into consideration, there is no evidence that the Veteran had significant difficulty with speech, insight, or judgment. Additionally, there is no evidence of record that the Veteran was a danger to himself or others.

With regard to occupational impairment, the Veteran was shown to be unemployed, mostly as a result of his physical limitations. Notably, the November 2012 VA examiner found that the majority of the occupational and social impairment was a direct result of his physical symptoms; he reported the most significant problems on his occupational functioning were IBS symptoms and apathy and he had been terminated a few times and he suspected such terminations were due to physical limitations rather than any psychiatric limitations or impairment. Additionally, at a May 2013 VA examination, the Veteran was shown to have occupational impairment, however, the VA examiner opined that his main difficulties with employment were related to physical issues. His psychiatric symptoms resulted in some occupational impairment due to irritability and interpersonal conflicts, but did not cause him to lose his employment. 

With regard to social impairment prior to August 27, 2019, while the Board acknowledges that the Veteran experienced disturbances in motivation and mood as a result of his PTSD, the impairment caused by such was not significant. Notably, the Veteran consistently reported having an excellent relationship with his third wife and youngest child, a good relationship with his other children, and being a great parent. The Veteran remained active in parenting with all four of his children. He indicated he did not have an active social life, but attributed such limitations to his physical impairment rather than his psychiatric symptoms. Specifically, the Veteran indicated his IBS most negatively impacted his social activities due to the unpredictable nature of his symptoms. The Veteran also demonstrated some social impairment during the custody dispute with his second ex-wife, but consistently reported his "superb" parenting relationship with his middle two children. Moreover, the Veteran expressed he was "extroverted," and could easily make friends. Some social impairment was also shown as the Veteran demonstrated limited insight and judgment during his custody dispute, and the Veteran was shown to be more concerned with winning rather than the best interest of his children. However, after attending and successfully completing a parenting class, the Veteran was shown to have more insight into parenting, and his visitations with his middle children were consistently shown to be positive and healthy. The Veteran also demonstrated good insight into his behavior as he wanted to "keep himself out of trouble," and moved from Oregon to Florida. He indicated that he had been less stressed and his psychiatric symptoms had alleviated upon removing himself from a contentious divorce and custody battle. The Veteran consistently presented as adequately groomed, casually dressed, cooperative, oriented, with normal speech and thought processes. Moreover, the November 2012 and May 2013 VA examiners assessed his psychiatric symptoms to manifest in occupational and social impairment with 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. Moreover, both VA examiners indicated that the bulk of his impairment was due to his adjustment disorder and physical impairments rather than his service-connected PTSD. The Veteran himself endorsed healthy relationships with his wife and children, and indicated that he could easily make friends; his limitations reported were mainly physical. Finally, Dr. M.O.'s private psychological evaluation showed the Veteran was able to participate in parenting classes, interact appropriately and healthy with his children, reported an excellent relationship with his third wife and youngest child, and also found the Veteran's physical impairments had a more significant effect on his occupational and social impairment. Therefore, a rating in excess of 50 percent for the period prior to August 27, 2019, is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411.

Based on the foregoing, the Board also finds that the Veteran is not entitled to a 100 percent rating at any point during the appeal period. In this regard, the Board notes that the Veteran does not have total occupational and social impairment as a result of his PTSD. Total social impairment was not demonstrated as the Veteran reported having an excellent relationship with his third wife and youngest child, a good relationship with his other children, being a great parent and remaining active in parenting with all four of his children. The Veteran did not report symptoms of loss of long-term focus, isolation, forgetfulness of important tasks, emotional outbursts, feelings of hopelessness, suicidal ideations, a depressed mood, hypervigilance, and occasional delusions. There is no evidence of record that the Veteran was found to be a persistent danger to himself or others. There was no indication that he experienced obsessional rituals that impacted his ability to perform activities of daily living. The Veteran was not disoriented to person, time, or place. There were some notations of memory impairment, but that impairment was not significant. Further, there is no indication from the record that the Veteran experienced significant delusions or hallucinations that interfered with orientation to person, time, or place. There was no indication from the record that the Veteran was unable to maintain his personal hygiene as a result of his major depressive disorder. The Veteran consistently presented as alert, oriented in all spheres, appropriately groomed, speech within normal limits, and without auditory or visual hallucinations. He denied suicidal and homicidal ideations at all times. Further, while the Veteran's PTSD may have had an impact on the Veteran's ability to work, there is no indication from the record that the symptoms were severe enough to prevent him from working without consideration of his other physical limitations unrelated to his PTSD. Additionally, without the accompanying level of social impairment, his symptoms do not qualify him for a higher rating. Therefore, a 100 percent rating is not warranted at any during the appeal period. 38 C.F.R. § 4.130, Diagnostic Code 9411.

While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability considering the rating criteria to be more persuasive than the Veteran's reports regarding the severity of his condition. Despite the foregoing, the Board acknowledges the Veteran's assertions that his various symptoms and functional impairments warrant a higher rating. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher rating are not met. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). This argument is therefore without merit. 

The Board has considered whether further staged rating under Fenderson v. West, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout each period on appeal. Therefore, assigning further staged ratings is not warranted. The Veteran nor his representative have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. 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).

Accordingly, the Board finds the preponderance of evidence is against the assigment of a rating greater than 50 percent prior to August 27, 2019, and against a rating greater than 70 percent thereafter, and to that extent the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

Entitlement to a TDIU

The Veteran asserts he is entitled to a TDIU. Specifically, he contends that he is unemployable as a result of his service-connected PTSD and IBS. See e.g., VA Form 21-4138 Statement in Support of Claim, January 12, 2013. Specifically, the Veteran indicates that he was a singer in a rock band but could no longer perform due to the unpredictable nature of his IBS. Id. 

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). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b).

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).

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.

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).

In the instant case, service connection is currently in effect for PTSD rated as 50 percent disabling prior to August 27, 2019, and 70 percent thereafter; IBS rated as 30 percent disabling; residuals of stress fracture posterior medial cortex, mid-tibia, left, rated as noncompensable; and hemorrhoids, rated as noncompensable. Therefore, his combined rating for the relevant period on appeal is 70 percent prior to August 27, 2019, and 80 percent thereafter. Thus, the schedular criteria for a TDIU have been met. 

To the extent that the Veteran's psychiatric limitations and functional impact of his service-connected PTSD and IBS are discussed in the preceding section, the Board incorporates such herein.

Turning to the evidence, of record are several statements submitted on behalf of the Veteran in January 2012. In those statements, it was indicated the Veteran was a singer in a rock band but could no longer work due to his IBS. Additionally, in a January 2012 statement submitted by the Veteran's third wife, G.B., she indicated the Veteran tried to work for his friend in a building job but could not work anymore. 

A May 2012 VA treatment record indicates the Veteran reported he was currently unemployed, and that when he tried to work his IBS interfered or he would reinjure his back. He had a self-reported bulging disc. 

At a November 2012 VA Gulf War General Medical examination, the Veteran indicated his IBS symptoms were so severe that prevented work for 11 months in 2001. However, he stated his symptoms were no longer as frequent. The VA examiner indicated the Veteran's IBS impacted his ability to work due to the nature of the symptoms, it may be difficult to work in a situation where he did not have access to a bathroom. 

In support of his claim, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability in May 2013. At that time, the Veteran indicated his PTSD prevented him from securing or following substantially gainful occupation. He indicated that he last worked in 2008. He had obtained a high school diploma, and had training in welding in 1995. 

Of record is an April 2015 VA treatment record that indicates the Veteran reported he no longer worked due to his PTSD and back pain. He stated he wanted to be a singer, and quit his job due to his PTSD, anger, and pain. 

At the November 2012 and December 2012 Comprehensive Psychological Evaluation by Dr. M.O., the Veteran indicated he was laid off of his job with VA because "VA let go of all of their temporary" employees. 

Based on the foregoing, and in consideration of the pertinent medical findings, including his reports at the various VA examinations of record and during treatment at VA medical centers, where he indicated his barriers to employment included problems getting along with coworkers and supervisors, and symptoms of IBS, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service connected disabilities.

The record reflects that the Veteran's highest level of education was high school, and was most recently employed in 2008. During service, the Veteran's military occupational specialty (MOS) included motor transport operations. The Veteran reported work in a variety of employment to include welding, singing, and building.

In this regard, as discussed in the preceding section, the Veteran's PTSD has been found to result in occupational and social impairment with reduced reliability prior to August 27, 2019, and with deficiencies in most areas thereafter. The November 2012 VA examiner found the Veteran had difficulty falling asleep; nightmares; irritability; difficulty concentrating; low energy; lack of interest in important activities; and also noted that the Veteran no longer had an active social life due to fears of experiencing IBS symptoms. Notably, the November 2012 VA examiner noted the Veteran could no longer enjoy social activities, such as singing, due to physical impairments, and that he had previously worked as a lead singer in a band and previously enjoyed karaoke. The November 2012 VA examiner found that the Veteran's most significant problem on his occupational functioning were IBS symptoms, apathy, and that he had been terminated a few times due to his physical impairments. The May 2013 VA examiner found the Veteran's psychiatric symptoms caused occupational impairment due to disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, irritability, interpersonal conflicts, and that his main difficulties in maintaining gainful employment were related to his physical issues. The August 2019 VA examiner found the Veteran had occupational impairment due to symptoms such as sleep deprivation and problem with reliability, attention, or concentration; and IBS symptoms. 

Finally, in an April 2021 private opinion by Dr. M.C., Dr. M.C. concluded that the Veteran could never participate in an occupational setting when expected to appropriate, reasonable, consistent, focused, communication, or task completion as a result of his psychiatric and IBS symptoms. In this regard, Dr. M.C. opined that the combination of the Veteran's psychiatric symptoms and IBS symptoms manifested in extreme anxiety, dissociative episodes, anger outbursts, social impairment, and frequent bowel movements had rendered the Veteran unemployable since 2008 in all employment settings. Additionally, Dr. M.C. noted the Veteran's symptoms had worsened without indication of improvement, and that his lack of desire for interpersonal communication would prevent him from effectively communicating with others in a work environment. 

The Board has carefully considered the Veteran's statements, and the medical evidence of record, regarding the combined effects of his PTSD and IBS as it impacts his employment. The Board concludes that the Veteran experienced significant limitation as a result of the combination of his service-connected PTSD and IBS, and that the combined effect of these disabilities impacted his daily functioning and earning capacity that rendered the Veteran unable to secure or follow a substantially gainful occupation. Generally, the fact that he was having impairments or difficulties does not provide a basis to grant TDIU. However, based on the evidence as discussed above, the Board notes the combined effects of his psychiatric limitations and the physical impairments as a result of his IBS symptoms, to include frequent and unpredictable bowel movements with increased anxiety, render the Veteran essentially unemployable in all employment settings. Additionally, the Board acknowledges the Veteran's statements that his IBS symptoms resulted in an inability to work as a singer due to the unpredictable nature of such symptoms. Although the Veteran maintained employment with VA until the temporary position was terminated, he continued to try to attempt work with his friend in building but was limited by a combination of his physical impairments and eventually remained unemployed. Finally, the Board notes that the April 2021 private opinion by Dr. M.C. is congruent with the VA examiner opinions of record, that the Veteran's psychiatric symptoms and IBS impairment resulted in significantly impaired employability. 

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Therefore, based on the foregoing, the Board finds that the Veteran's service-connected disabilities do render him unable to secure and follow a substantially gainful occupation and entitlement to a TDIU is warranted. To that extent, the appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

 

\ 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mariah N. Sim, 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.