Citation Nr: 21005653 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-28 981A DATE: February 2, 2021 ORDER Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to October 18, 2011 is remanded. FINDING OF FACT The Veteran’s PTSD has been productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating higher than 50 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from February 1969 to April 1972, including service in the Republic of Vietnam. He was awarded medals and commendations, including the Combat Infantryman Badge. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated July 2011. The claims were remanded by the Board in October 2016, April 2019, and March 2020. Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C. § 1155 (West 2012). Percentage ratings are determined by comparing the manifestations of a disability with the requirements contained in VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 3.102, 4.3. 1. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. The Veteran is seeking a rating in excess of 50 percent for PTSD rated under Diagnostic Code 9411. The relevant temporal focus for this disability is one year prior to the date of receipt of the increased rating claim, so from January 21, 2010. 38 C.F.R. § 3.400. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a rating of 50 percent is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A total scheduler rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.”  Id.  Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’”  Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether a higher evaluation is warranted. Relevant Evidence A December 2010 letter from clinical psychologist Dr. J. S. N. states that the Veteran has severe PTSD. Due to his combat experiences, the Veteran has difficulty relating to and trusting others. He has intrusive thoughts, nightmares (2-3x/month), grief issues, and a hyper-startle reaction to loud noises. He is considered unemployable due to the long-term inability to tolerate day-to-day relationships in the workplace or at home. The Veteran underwent a February 2011 VA Review Examination for PTSD. The Veteran’s PTSD symptoms included persistent re-experiencing of the traumatic event (recurrent and intrusive distressing recollections of the event), persistent avoidance of stimuli associated with the trauma, numbing of general responsiveness, difficulty falling or staying asleep, exaggerated startle response, and daily thoughts of Vietnam. There was no presence of homicidal or suicidal thoughts. His appearance was noted to be clean, neatly groomed, and casually dressed. He was noted to be well-oriented to person, time, and place. He denied having any type of hallucinations and did not display inappropriate behavior. In a February 2011 Statement, the Veteran reported that due to his PTSD, he finds it impossible to stay focused because of thoughts of combat. He has nightmares, does not feel safe in crowds, and has lived alone for over 30 years due to his mood swings. He is unable to sleep at night due to service-related nightmares. In an April 2014 Buddy Statement, the Veteran’s former spouse stated that the Veteran woke from nightmares several times a week and startles easily. He preferred to stay away from crowds and had difficulty trusting others. In a July 2014 Buddy Statement, the Veteran’s friend, M.S., stated that they served together in the Army in the Republic of Vietnam in 1969. M.S. stated that during their time in combat, he noted a marked personality change in the Veteran. The Veteran became withdrawn and small things would make him furious. The Veteran underwent an August 2017 VA Review PTSD DBQ. The Veteran’s PTSD was confirmed. The Veteran’s PTSD was noted to cause occupational and social impairment with reduced reliability and productivity. His symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances including work or a worklike setting. The Veteran was noted to be fully oriented and cooperative. His thought processes were organized, and speech was coherent. He denied suicidal or homicidal ideation. A Psychiatric note from North Florida VA dated August 28, 2017 documents that the VA medical staff assessed the PTSD as severe. The Veteran underwent a November 2020 VA Review PTSD DBQ. The Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran’s PTSD caused a lack of close relationships with peers, avoidance of military-related groups that might offer support to him, and avoidance of shooting and discussing Vietnam. He is easily irritated. The examiner opined that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. VA medical records for the entire period on appeal show the Veteran’s PTSD symptoms include anxiety, depression, insomnia, nightmares, intrusive thoughts about Vietnam, hypervigilance, irritability, restlessness, occasional panic attacks, and feelings of detachment from others. There was no psychosis, or mania. He was consistently reported to be cooperative, alert and oriented, with logical speech. He consistently denied suicide and homicidal ideation. He denied delusions and hallucinations. He was noted as being appropriately dressed, calm, of normal thought process, and properly oriented to person, place, and situation. Legal Analysis and Conclusion After a careful review of the record, the Board finds that the Veteran’s service-connected PTSD, currently rated at 50 percent, nearly approximates the criteria for a 50 percent evaluation. There is no competent and credible evidence of record indicating that the Veteran was experiencing symptoms rising to levels contemplated by the 70 percent or the 100 percent rating criteria. Here, the August 2017 and November 2020 VA examiners both found the Veteran’s psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity. Notably, the examiners and the VA treatment records for the appeal period did not find that the Veteran experienced symptoms such as suicidal ideation, obsessional rituals, illogical speech, spatial disorientation, neglect of personal appearance and hygiene. Additionally, his symptoms of anxiety, depression, insomnia, nightmares, intrusive thoughts about Vietnam, hypervigilance, irritability, restlessness, occasional panic attacks, and feelings of detachment from others do not equate in severity, frequency, and duration, to deficiencies in most areas including thinking, mood, judgment, family, work, or school. While the Veteran was depressed, and isolated himself from others, having some impact on family and work, his judgment and thinking were not noted to be impaired, and he consistently denied homicidal or suicidal ideations. Instead, the examiners noted that the Veteran exhibited casual, appropriate behavior. He was well oriented in all spheres. His attitude was cooperative. His speech and thought processes were within normal limits. Thus, the Board finds that his symptoms during the appeal period did not equate to the level contemplated by the criteria of a higher 70 percent rating. Moreover, the Board finds the Veteran’s other symptoms, including reports of disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, are contemplated the 50 percent rating criteria. Further, relevant VA medical records further confirm that the Veteran was not experiencing symptoms such as suicidal ideation, obsessional rituals, illogical speech, spatial disorientation, neglect of personal appearance and hygiene, or other symptoms with such severity, frequency, and duration, rising to the level contemplated by the criteria of a higher 70 percent rating. In addition, the record does not demonstrate that the Veteran displayed total occupational and social impairment during this time to warrant a rating of 100 percent. Relevant VA medical records and the Veteran’s lay statements do not establish that the Veteran was experiencing symptoms, such 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; and other such symptoms, at any point in the appeal period. See also 38 C.F.R. § 4.130, DC 9411. Finally, the Board has considered the Veteran’s lay statements concerning the symptoms of the service-connected PTSD and his medical history. As an initial matter, the Veteran did not assert that he experienced any specific symptoms that are contemplated by the criteria of a higher rating. Even if he had, the Veteran, as a lay person, does not have the competence to render an opinion as to the level of severity of a psychological disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The VA examination findings and VA treatment notes are competent and credible evidence concerning the nature and extent of the Veteran’s PTSD symptoms. The medical professionals examined the Veteran, and the examiners rendered pertinent opinions in conjunction with the evaluations. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords their opinions great probative value. In sum, entitlement to an increased rating for PTSD in excess of 50 percent is denied. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against the claim, this doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 REASONS FOR REMAND 1. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities prior to October 18, 2011 is remanded. The claim for a TDIU due to service-connected disabilities prior to October 18, 2011 must be remanded. A December 2010 letter from clinical psychologist, Dr. J. S. N. states that the Veteran has severe PTSD, and that due to his combat experiences, the Veteran has a long-term inability to tolerate day-to-day relationships in the workplace or at home that render him unemployable. For the period prior to October 18, 2011, the Veteran does not currently meet the percentage requirements of 38 C.F.R. § 4.16 (a) for TDIU. Therefore, the claim for a TDIU must be considered under the criteria of 38 C.F.R. § 4.16 (b). The Board cannot assign an extra-schedular rating in the first instance; it must first specifically determine whether to refer a case to the Director of C&P Service for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008). On remand, the issue of entitlement to a TDIU on an extraschedular basis should be referred to the Director, Compensation and Pension, for an opinion, followed by adjudication of this issue. The matters are REMANDED for the following action: Refer the Veteran’s case to the Director, Compensation Service (C&P), for the consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.