Citation Nr: 21076227 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-00 603 DATE: December 22, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The medical evidence of record does not support a diagnosis of PTSD and the Veteran's asserted stressor of an in-service personal assault is not corroborated by the total evidence of record. 2. The Veteran's service-connected disabilities have prevented him from obtaining and maintaining substantially-gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to September 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of February 2016 and April 2017 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The undersigned Veterans Law Judge (VLJ) conducted a hearing in this matter in June 2021 and a transcript of that hearing is of record. 1. Entitlement to service connection for PTSD. Service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As an initial matter, the Board briefly clarifies the scope of the issue on appeal. The Veteran is already service-connected for a psychiatric condition, diagnosed as bipolar disorder, which is rated as 70 percent disabling throughout the rating period on appeal. See January 2020 Rating Codesheet at 1. Service-connected psychiatric conditions, whatever their individual diagnoses, are generally rated under the same formula. See 38 C.F.R. § 4.130, Diagnostic Codes 9201-9440, General Rating Formula. In other words, whether the Veteran is service-connected for PTSD or not does not necessarily change his total disability compensation. The question before the Board in this appeal is not whether the Veteran should be service-connected for any psychiatric condition, but rather how his already-established service-connected psychiatric condition should be diagnosed. Specific kinds of evidence are required in claims for service connection for PTSD. These include "medical evidence diagnosing the condition... a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred." 38 C.F.R. § 3.304(f). In determining whether such credible supporting evidence exists in the record, a veteran's lay testimony alone is generally insufficient, subject to certain exceptions. Id. at (f)(1)-(4). The evidence of record is mixed as to whether the Veteran has a medically-confirmed diagnosis of PTSD. Four separate VA examiners have each evaluated the Veteran's psychiatric condition and have consistently found bipolar disorder instead of PTSD. See December 2011 VA Examination Report at 1 (diagnosing bipolar disorder and anxiety disorder); see also id. (specifically ruling out PTSD); see also November 2013 VA Examination Report at 1 (diagnosing bipolar disorder and panic disorder secondary thereto); see also January 2015 VA Examination Report at 1 (diagnosing bipolar disorder); see also November 2015 VA Examination Report at 1 (diagnosing bipolar disorder). However, a treating VA physician has found a diagnosis of PTSD. See January 2017 Medical Treatment Records at 177 (providing February 2016 diagnosis of bipolar disorder and PTSD from Dr. T.H.) The Board notes that the Veteran's claim on this issue was filed in September 2015. The Board also notes that this doctor's medical notes raise the inference that he may have been motivated by a desire to increase the Veteran's disability compensation rather than to accurately evaluate his psychiatric condition. See January 2017 Medical Treatment Records at 177 (opining in February 2016 that "[his] psychometrics clearly indicate PTSD" but that "we also explored possible [triggers] for his benefit upgrade... will work on [medication compliance] and his benefits"); see also id. at 172 (providing February 2016 addendum stating that "we are working on increasing his benefits"). A subsequent treating VA nurse practitioner appears to have again diagnosed the Veteran with bipolar disorder, to which the Veteran appears to have responded abusively. See January 2017 Medical Treatment Records at 105 (providing August 2016 treatment note from nurse practitioner K.M. diagnosing bipolar disorder); cf. June 2017 Medical Treatment Records at 89-90 (providing April 2017 correspondence between the Veteran and nurse practitioner K.M.). Subsequent treatment notes from nurse practitioner K.M. appear to include diagnoses of both bipolar disorder and PTSD. See June 2017 Medical Treatment Records at 85 (providing subsequent April 2017 treatment note); see also October 2019 Medical Treatment Records at 1 (providing same in October 2019). The Board notes that C.E., a VA social worker providing additional treatment, appears to have variously diagnosed anxiety, PTSD, and bipolar disorder. See October 2019 Medical Treatment Records at 1 (providing contemporaneous treatment note from C.E. diagnosing anxiety); see also id. at 19-20 (diagnosing bipolar disorder in March 2020); see also May 2020 Medical Treatment Records at 5-6 (diagnosing PTSD in April 2020); see also id. at 1 (again diagnosing bipolar disorder in May 2020). The Board assigns greater probative weight to the consistent conclusions of four separate VA examiners that the Veteran's psychiatric condition manifests as bipolar disorder and not as PTSD. In reaching this conclusion, the Board is troubled by the timing of the Veteran's September 2015 filing of this claim, the subsequent February 2016 notes from Dr. T.H. describing "working on increasing [the Veteran's] benefits[,]" the April 2017 abusive correspondence from the Veteran to nurse practitioner K.M. regarding a change in the diagnosis of his psychiatric condition, and the multiple changes in diagnosis provided by C.E. without further explanation as to the basis for such changes. Because the VA examiners' diagnoses are consistent, independently formed, and based on a neutral assessment of the medical evidence of record over multiple years, the Board assigns them substantial probative weight. Generally, the Board would therefore deny this claim on the basis of a lack of medical evidence diagnosing PTSD. 38 C.F.R. § 3.304(f). However, to fully afford the Veteran the benefit of the doubt as to this claim, the Board has also extensively considered his assertions as to an in-service stressor. 38 U.S.C. § 5107. These assertions are somewhat contradictory. In a statement filed simultaneously with his claim on this issue, the Veteran asserted that "I worked as a care giver/medication [aide] for 12-plus years and watch and assist [elderly] residents who were passing away." See September 2015 VA Form 21-0781 at 1. As noted above, the Veteran served on active duty from June 1999 to September 2000 and his discharge certificate reflects service as an artillery crewmember rather than as a caregiver. See January 2007 Discharge Certificate (noting military occupational specialty as "[Multiple Launch Rocket System] crewmember"). To the extent the Veteran is describing post-service civilian employment, such employment cannot serve as an in-service stressor in a claim for service connection. In a separate statement also given at this time, the Veteran asserted that "[something] happened sexually and [I am] not able to remember much, [it's] been documented in my military records." See September 2015 VA Form 21-0781a at 1; see also id. at 2 (asserting that "[when] I got to my training unit I was constantly being [hazed] sexually"). In cases where a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate that veteran's account of the stressor. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: [Records] from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). Contrary to the Veteran's assertion above, none of his service treatment records (STR) or other military personnel records document hazing. The Board notes that despite his initial assertion that "[it's] been documented in my military records[,]" the Veteran also asserts that he "[never] reported" and "was afraid of what would happen if I said anything." See September 2015 VA Form 21-0781a at 1; cf. id. at 2. The Veteran has provided additional statements and documents in support of this claim during the development of this appeal. These include a more detailed description of an in-service stressor event and Army regulations against hazing. See October 2016 VA Form 21-0781 (providing statement); see also October 2016 HTML Documents at 44-45 (providing Army regulations against hazing). The Veteran argues that "the fact that the Army had to come up with an anti-hazing policy is proof of events such as these occurring long before he joined the military and proof that these events were common place within the training environment[.]" See March 2019 VA Form 9. The record reflects that the RO has attempted to assist the Veteran in developing this claim, to include requesting corroborating records from government agencies and advising the Veteran of the other types of supporting evidence which may corroborate his claim. See October 2015 Correspondence (advising the Veteran of additional types of corroborating evidence); see also June 2017 VA Form 21-3101 (requesting records based on Veteran's description); cf. August 2017 VA Form 21-3101 (finding no corroborating records in National Archives Records Administration); see also August 2017 Correspondence (requesting records from US Army Crime Records Center); cf. September 2017 Correspondence (finding no corroborating records from same). The Veteran attended an informal conference held before a Decision Review Officer (DRO) at which the Veteran stated that "he did not discuss the hazing experience with anyone while he was in the military" and "has no further evidence to submit in support... other than a lay statement from his spouse which he provided at the informal conference." See November 2018 DRO Summary. At his hearing before the undersigned VLJ, the Veteran reiterated the description given in his October 2016 statement. See June 2021 Transcript at 4. The Veteran also asserted at this time that he was threatened with an alteration to his discharge status if he reported this event. Id. at 5. The Board notes that the Veteran made no reference whatsoever to the stressor event at issue in this case during his previous claim for service connection for a psychiatric condition, including in testimony given before another VLJ. See May 2010 VA Form 9 at 1-2 (asserting that "I had a hard time going from military life back to civilian life back in 2000"); see also July 2011 Transcript at 10 (asserting that "I had problems throughout my enlistment time... I had issues that my wife at the time wasn't calling me, sending me letters" and that "it was just a bad unit[,] [I] was always getting yelled at for something that I didn't do"); see also id. (asserting that "[towards] the end I was getting discharged and received an Article 15 because I missed a medical appointment and was told that I did it on purpose which was a problem... I was rushed through the system of getting processed out... they told me not to say anything if I wanted to get out the door and so I lied to the psychiatrist, saying that there was nothing going on"). As discussed above, where a claim for service connection for PTSD is based on an assertion of in-service personal assault, a veteran's statement must be corroborated with additional evidence. 38 C.F.R. § 3.304(f)(5). February 2007 STR reflect that the Veteran was discharged for excessive weight gain. The Board notes that the Veteran previously attributed this weight gain to depression, which a December 2011 VA examiner attributed in turn to marital problems occurring during the Veteran's active-duty service. See December 2011 VA Examination Report at 12 (noting that "the onset of depression and anger during his initial training time... may have been associated with marital problems" and that "[he] states that because of his depression that he gained over 20 lbs. which led to him being placed on a weight control program"); see also id. at 3 (noting in history that "[while] in BCT and AIT [the Veteran] had very little communication from his wife" and that "[this] caused despair and anger"). The Board has considered whether this weight gain may serve as an evidence of a behavior change sufficient to constitute credible corroborating evidence of his currently-asserted stressor event. See 38 C.F.R. § 3.304(f)(5), supra (providing that "deterioration in work performance" may constitute credible evidence of a stressor). However, the Board is troubled by the complete absence of any mention of the stressor event at issue in this claim from the Veteran's previous psychiatric service-connection claim, including the testimony given before the Board regarding that claim as discussed above. The Board gives greater probative weight to the Veteran's statements during his previous claim for service connection for a psychiatric condition because they were made closer to the events in question. In other words, while the evidence of record showing weight gain may demonstrate that the Veteran experienced symptoms of psychological distress during his active-duty service, and that these symptoms may have contributed to such weight gain, it does not corroborate that it is at least as likely as not that the stressor event now asserted by the Veteran occurred, because the Veteran himself previously identified the source of such symptoms as marital problems without any mention of this stressor event. The Board has found no other evidence in the record applicable under 38 C.F.R. § 3.304(f)(5) to serve as corroborating evidence of this stressor event. Lay statements from the Veteran's prior and current partners discuss his ongoing symptoms, including psychological symptoms, but do not discuss the onset of these symptoms and were provided many years after the events at issue. See December 2018 Correspondence. The general Army regulations against hazing discussed above are not sufficient to show that it is at least as likely as not that the specific stressor event asserted by the Veteran happened in this case. As noted above, the Board has found no evidence in the Veteran's STR or personnel records addressing hazing or displaying any of the indicators mentioned in 38 C.F.R. § 3.304(f)(5) apart from weight gain, nor has it found such indicators elsewhere in the evidence of record. The Board therefore concludes that neither the first nor the second Shedden factors have been satisfied based on the evidence of record and that the assignment of service connection for PTSD is not warranted. 38 C.F.R. §§ 3.303, 3.304. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. 2. Entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board is precluded from considering non-service-connected disabilities or factors in determining entitlement to a TDIU. 38 C.F.R. § 4.16. The Veteran's claim as to this issue was filed in December 2016. The record reflects that the Veteran is rated as 80 percent disabled throughout the rating period on appeal, with a psychiatric disability rated as 70 percent disabling, hypertension rated as 10 percent disabling, and bilateral shin splints each rated as 10 percent disabling. See January 2020 Rating Codesheet at 1-2. The Veteran is therefore eligible for the assignment of a schedular TDIU in the first instance. See 38 C.F.R. § 4.16(a) (requiring a single disability of 60 percent or greater or else a combined disability rating of 70 percent with at least one disability of 40 percent or greater). The evidence of record is clear that the Veteran was last employed in December 2015, that he has previously been employed as a gas station attendant, a cashier, and as a medication aide, and that he has a high school education. See December 2016 VA Form 21-8940; see also February 2013 VA Form 21-8940; see also April 2018 Social Security Administration (SSA) Records at 6. However, the evidence of record is mixed as to why the Veteran has been unemployed from December 2015, with substantial evidence supporting the inference that the primary motivation was the need for additional time to care for his daughter's medical conditions. During a November 2015 VA examination, the Veteran stated that he "typically works nearly 30 hours each week, but has missed substantial work due to his daughter's medical concerns." See November 2015 VA Examination Report at 3; see also id. (noting Veteran's assertion that he left previous job due to denial of leave under the Family and Medical Leave Act). During a February 2017 VA examination, the Veteran stated that "[he] left last workplace... due to 'stress' and need to care for ill daughter." See February 2017 VA Examination Report at 2. An additional VA examination report of March 2017 notes that the Veteran "has not worked since Dec. 2015, when his daughter's medical needs required more time and care... he stated that he was missing lots of work due to her medical concerns and quit because of the increased needs of his daughter." See March 2017 VA Examination Report at 2. This examiner noted that "[the Veteran's] daughter required inpatient surgery and an extended stay in the hospital" and that "[the] Veteran reports that he quit his job at that time, as he needed to spend more time with his daughter." Id. at 2-3. This examiner further noted that "[the] Veteran states that he has not returned to work since that time, as they had a third child in [May 2016], and [he] continues to be the primary caregiver." Id. at 3. This inference is further supported by evidence that shows the Veteran was able to sustain employment despite his service-connected disabilities. June 2014 treatment notes reflect that "work is going well at Home Depot." See February 2019 Medical Treatment Records at 1372. August 2015 treatment notes reflect that the Veteran "is much happier at work" following an unpleasant co-worker's dismissal and that he "has enjoyed the brief contact with customers and has received several tips while working," but that "his daughter's health has impacted his work" and required scheduling "on shifts that are easily covered if [the Veteran] has to miss work." See December 2015 Medical Treatment Records at 31-32. Social Security Administration (SSA) records reflect that: [The Veteran] reports having anxiety being around other people but both of his most recent jobs were jobs where he worked [with] the public continuously. [He] reports significant physical complaints but in [medical evidence of record] he notes that he enjoys gardening, cooking, and going for walks. [He] also notes that he has no difficulty [with] mowing the lawn, cooking, doing laundry, and driving his wife to work and daughter to preschool daily. [He] is noted to not be compliant [with] his [prescriptions]. His provider notes on more than one [occasion] that staying on his [prescriptions] for anxiety and depression is key to reducing [symptoms]. [His] subjective complaints are not supported by objective evidence in file. [His] statements are partially credible. See April 2018 SSA Records at 7. On the basis of these findings, the SSA found the Veteran not disabled. Id. at 14. While the SSA's determination is not binding upon the Board, it is relevant evidence to be considered with the other evidence of record. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A December 2018 letter from a non-VA social worker describes the Veteran's daughter's medical issues and states that "I believe that disability benefits would support [the Veteran] in caring for himself and his family." However, as noted above the Board is precluded from considering non-service-connected conditions or factors in adjudicating a TDIU. Apart from stating that "[the Veteran] has shared candidly with me about the ways his mental health symptoms can at times negatively impact his parenting and functioning," this letter does not otherwise present relevant evidence in this claim. The Board also notes a December 2018 letter from nurse practitioner K.M. stating that "I am writing this letter at your request to support your claim for disability" and that "it is my opinion that [psychiatric] symptoms significantly impact your social and occupational function... [and] I believe they make it difficult for [you] to acquire and maintain employment." The Board is mindful that in adjudicating TDIU claims, "[the] sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). However, proving inability to maintain "substantially gainful occupation" for entitlement to TDIU does not require proving 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1380 (Fed. Cir. 2001). As noted above, the evidence of record as to whether the Veteran's service-connected conditions prevent him from obtaining and maintaining substantially gainful employment is mixed. The Board particularly notes determinations from VA's Vocational Rehabilitation and Employment (VRE) program that "[based] on the severity of [his] service-connected disabilities, it is unreasonable to expect [the Veteran] to seek competitive employment at this time." See April 2014 VRE Correspondence; see also November 2016 VRE Correspondence (opining that "it is not currently reasonably feasible for [the Veteran] to achieve a vocational goal"). Additional VRE records state that both "[the Veteran's] disabilities and his family requirements contribute to his inability to work at this time." See November 2016 VA Form 28-1902b at 2. While VRE determinations are also not binding upon the Board, they are likewise relevant evidence to be considered with the total evidence of record. Social worker C.E., discussed above, has also written a letter in support of the Veteran's claim on this issue. In pertinent part, C.E. opined that: [The Veteran] has tried multiple times to retain employment without success due to exacerbation of his symptoms when he is employed. [He] finds himself feeling anxious and stressed at work which results in agitation and irritation resulting in poor interpersonal relationships and behaviors at work. He says that being in a work environment very quickly increases his agitation, anxiety, and stress overall. He has become overwhelmed to the point of suicidality while working. [He] also has a problem with change and is easily irritated, which leads to behaviors that are counterproductive at work. These issues can be attributed to his service-connected bipolar disorder which can also be exacerbated by stress and anxiety, fueling an untenable cycle of burnout and job loss. [He] has tried jobs in different fields and different facilities in an attempt to maintain gainful employment to no avail. See May 2020 Medical Treatment Record. The Board assigns this letter only limited probative weight because it does not address the contradictory evidence discussed above, showing that the Veteran was able to maintain employment prior to December 2015 despite his psychiatric condition and left positions based on his daughter's medical needs. Lay statements from the Veteran's prior and current partners discuss his symptoms, including difficulties with maintaining employment: Over the years I have noticed that when the stress of daily life gets [too] hard [the Veteran] will forget to take his meds causing a reason to go to the hospital. He will also get so much anxiety that he creates a reason (high blood pressure or shortness of breath) to go to the hospital. This happened a lot when he was working. He would literally go in for a cold claiming it was far worse than it was. This was a form of a break from life. In the hospital you don't have to do anything for yourself if you don't want to. These days when [he] needs a break from life he is easily upset. He searches for ways to escape. This includes being angry so others leave him alone, asking for more help with the kids, going on outings with less or no kids, doing work outside, and when these fail to give him the break he needs he will go to the ER. I am home during the week to help out wherever I'm needed. We have formed a solid support system to help [him] be useful in other ways [than] working. Like being a stay at home dad. This gives meaning to his life and keeps the talks of killing himself away. See December 2018 Correspondence. The Board assigns these statements moderate probative weight because they are based on opportunities to observe the Veteran over substantial periods of time. Finally, multiple VA examiners have consistently noted that the symptoms of the Veteran's psychiatric condition include difficulty in establishing and maintaining effective work and social relationships, as well as difficulty in adapting to stressful circumstances such as work or a work-like setting. See November 2013 VA Examination Report at 3; see also November 2015 VA Examination Report at 4; see also March 2017 VA Examination Report at 4. The Board notes that some of these examination reports predate the rating period on appeal and are contradicted by the Veteran's ability to maintain employment until December 2015, but also notes that these findings are consistent with the lay statements of record and with the opinion of C.E. discussed above. The Board concludes that, when considered as a whole and after applying the doctrine of reasonable doubt, the total evidence of record discussed above supports the conclusion that it is at least as likely as not that the Veteran's service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment during the rating period on appeal. 38 U.S.C. § 5107. The assignment of a TDIU is therefore warranted. 38 C.F.R. § 4.16. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.