Citation Nr: 21009554 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-07 340 DATE: February 22, 2021 ORDER Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. At point during the appeal period has the Veteran’s PTSD more closely approximately total occupational and total social impairment. Instead, it has consistently manifested by occupational and social impairment with deficiencies in most areas. 2. Resolving all reasonable doubt in his favor, the Veteran’s PTSD precludes him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from July 1989 to July 1993. He testified before the undersigned Veterans Law Judge (VLJ) in June 2020. A transcript of the hearing is of record. In a July 2019 letter, the Veteran’s attorney stated: My office was recently made aware of the July 7, 2015 rating decision, which included a decision for hypertension, asthma, diabetes, high cholesterol, dry eye syndrome and bilateral neuropathy. This decision should be covered by our NOD dated December 24, 2015, sent to your office by certified mail. I have enclosed a copy of that NOD with this letter. VA amended 38 C.F.R. § 20.201 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, to include any NOD, effective March 24, 2015. Thus, the amended regulation applies to the Veteran’s NOD. See 38 C.F.R. § 20.201(a). The NOD must be in writing and identify the specific decision and issue or issues therein with which the claimant disagrees. 38 U.S.C. § 7105(b)(2)(A). Language generally indicating disagreement with “Any decision that may have been issued within the last year” is not sufficient. In this instance, the Veteran’s attorney did not include the issues listed above on the December 2015 NOD and instead indicated “I do not yet know what stage this case is at or what decisions have been issued other than those provided by the Veteran.” Further, the Board notes that the NOD states “if a copy of any rating decision issued by your office within the previous year is sent by fax or mail to the address above, I will ensure the form is completed in more detail as soon as possible based on the information provided.” To date, even after the FOIA request was fulfilled, a clarifying NOD has not been provided. Thus, given that NODs filed after March 24, 2015, must explicitly identify the rating decision and issues on appeal on a form prescribed by the Secretary, the Board does not have jurisdiction over such issues and further discussion is not required. On the December 2015 NOD, the Veteran’s attorney disagreed with the November 2015 rating decision as to the rating and the effective date assigned for the Veteran’s PTSD. However, the November 2015 rating decision did not assign an effective date. As much was done in the July 2015 rating decision, which the Veteran’s attorney did not appeal. Because NODs must identify the specific decision and the November 2015 rating decision as opposed to the July 2015 rating decision was identified, the NOD is not valid with respect to an earlier effective date. Were the Board to consider the issue, it would constitute a freestanding earlier effective date claim and would be dismissed as a matter of law pursuant to Rudd v. Nicholson, 20 Vet. App. 296 (2006). Therefore, the Board does not need to address the matter further. 1. Entitlement to a rating higher than 70 percent for PTSD. The Veteran is presently in receipt of a 70 percent rating for PTSD under Diagnostic Code 9411. Under that code, a 70 percent rating is assigned 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 circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating for PTSD requires 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. The use of the term “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 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 § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Initially, the Board must address the May 2020 correspondence from the Veteran’s attorney whereby she attempted to question the credibility of the VA examiner who provided both the June 2015 and April 2018 VA examinations. In Francway v. Wilkie, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. In this instance, the Veteran’s attorney has not raised any actual argument why a psychiatrist, who is required to complete four years of medical school as well as three to seven years of specialized residency training, would not be competent to provide a VA examination addressing an acquired psychiatric disorder. Fears v. Wilkie, 31 Vet. App. 308, 317 (2019); Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019) (finding that the challenge must be more than a general assertion that an examination or opinion in inadequate and must be raised by a claimant in the first instance). Moreover, an increased rating claim is based on a totality of the evidence, as opposed to one medical opinion. It is the Board’s duty, as the finder of fact, to determine the severity, frequency, and duration of the Veteran’s symptoms. See Vazquez-Claudio, supra. Given the lack of a specific challenge to the credibly of the examiner, as well as the fact that the psychiatrist in question provided a positive opinion regarding the Veteran’s PTSD and then merely documented the Veteran’s symptoms, the Board will proceed to adjudicate the Veteran’s appeal. Remanding the Veteran’s appeal would serve no useful purpose and would not provide any benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). After having considered all of the evidence of record, the Board finds that a rating higher than 70 percent is not warranted for the Veteran’s PTSD at any point during the appeal period. The Veteran’s VA treatment records dating from January 2004 show that his PTSD screens were consistently negative. See e.g. March 2014; July 2012; May 2008; February 2006; March 2005; and January 2004 VA Treatment Records. During those times, he did not endorse any other psychiatric symptoms including depression. However, VA treatment records from June 2014 indicate that the Veteran presented with anxiety and trouble sleeping. He had a picture of the person who sexually assaulted him in the Marines and indicated it gave him flashbacks and nightmares. He denied having any symptoms of psychosis or mania. He was prescribed trazodone and gabapentin and agreed to be referred for MST evaluation and therapy. VA treatment records from April 2015 show that the Veteran had a positive depression screen. It was noted that he had experienced “some depression” but no further mention was made of symptoms. No formal diagnosis or treatment was rendered. Social Security Records dated in 2013 indicate that the Veteran reported he was disabled and unable to work because of high blood pressure, heart disease, kidney disability, high cholesterol, and his back disability. On Social Security examination in March 2015, he continued to complain of high blood pressure, high cholesterol, diabetes, kidney problems, and heart problems. There was no mention of any psychiatric symptoms. The records do; however, show that the Veteran reported walking with his sister to improve his weight. This suggests some level of social interaction and an ability to work toward a goal. In December 2014, the Veteran filed a claim for service connection for PTSD. He was afforded a VA examination for his PTSD in June 2015. The examiner noted “Veteran meets DSM V criteria for major depression; to which he endorses ‘goes hand in hand’ with PTSD. He has experienced chronic waxing/waning depressed mood, themes of hopelessness, themes of guilt, poor sleep, anhedonia. He reports that he has had unintentional weight loss, has poor self-esteem.” The examiner opined that the Veteran’s PTSD most closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. On examination, the Veteran endorsed having two daughters, but his PTSD symptoms had caused emotional distancing from family. He stated he worked in construction for several years but stopped working in 2012, due to an inability to be among others. As noted above; however, he did not state such reasoning when applying for Social Security benefits. The examiner noted that the Veteran experienced symptoms of depressed mood, anxiety, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and suicidal ideation. Regarding the Veteran’s behavioral observations, the examiner noted: Veteran appears somewhat disheveled. His motor activity is slowed, consistent with depression. His affect is initially blunted/guarded, but becomes very tearful, weeping for several minutes when he had described his experience[.] It had taken him several minutes to collect himself. He had leaned over in chair, crossed his arms, held his head down, weeping. Is clearly in emotional pain, related to traumatic experience. Mood is very depressed. He denies suicidal/homicidal ideations, although he endorses that he has harbored such thoughts in the past. [This examiner notes that Veteran adamantly denies thoughts of harm to self or others; and that he knows how to/agrees to seek help should such thoughts and/or mental health crisis present. Also, this examiner had brought veteran to the mental health outpatient clinic to begin receiving care-he had been appreciative of this]. No evidence of psychosis or mania. Thought process is logical. Speech is soft, slow and subdued, consistent with depression. Insight and judgment are intact. The examiner noted the Veteran’s “presentation is such that he has not sought help due to themes of mistrust and avoidance.” Regarding the severity of the Veteran’s PTSD as it relates to his ability to work, in November 2015, another examiner found: The Veteran’s serious impairment in PTSD symptoms of hypervigilance, feelings of detachment from others, difficulty concentrating, irritability, intense psychological and physiological distress at exposure to internal/external cues that symbolize or resemble an aspect of the [military sexual] trauma. For this Veteran, there is occupational and social impairment in work efficiency and therefore limits his ability to perform occupational tasks which are limitations to employment and social activity. Although, the Veteran’s current symptoms limits social and occupational activities, symptoms are not permanent, as such the condition of PTSD is not necessarily a permanent condition-meaning that the condition has potential for improvement. VA treatment records from September 2015 show that the Veteran denied any psychosis, mania, or imminent suicidal or homicidal ideations. VA treatment records from February 2016 indicate that the Veteran reported being hopeless but that he continued to pray every day. He reported his suicidal thoughts were chronic, dating back before he was started on Zoloft. He restated “it comes and goes,” with no change in severity or intensity. He had no history of suicide attempts and no intent or plan of hurting himself. He was looking forward to future plans. He did not have any symptoms of anxiety, anger, irritability or agitation. His psychomotor activity was normal with no psychotic features reported or observed. VA treatment records from June 2016, July 2016, and August 2016 indicate that the Veteran was pleasant, cooperative, had normal speech, good eye contract, no psychosis, no suicidal or homicidal ideation, normal motor functioning, and his thoughts were logical and organized. His appearance was causal. He was appropriately groomed, alert, oriented, and had good judgment. However, in September 2016, he presented with paranoid ideation/delusions. He believed he was being followed and monitored by drones. He covered his windows with foil paper and was upset that nobody including his wife believed him. He was able to appropriately interact with other Veterans in group therapy and he denied suicidal ideations. The Veteran was afforded an additional VA examination in April 2018. He endorsed being socially isolated and stated that other than occasional ventures to a local store in his neighborhood, he generally stays home. He stated he “might venture out with a lady friend” but stays in the car. He also endorsed a situation where he had been in his room “playing with [his\ pistol” when the gun went off and he almost shot his hand. He mentioned flying drones and stated he wore a hard hat at night. He stated he might sometimes hear someone knocking on his door or perhaps seeing something out of the corner of his eye. The examiner again opined that the Veteran’s PTSD most closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. On examination, the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence, and persistent delusions or hallucinations. The examiner added a diagnosis of psychotic disorder NOS and stated although he was able to differentiate the symptoms that were attributable to each diagnosis, he was unable to differentiate what portion of the occupational and social impairment was caused by either diagnosis. The Veteran was afforded an additional VA examination for PTSD in December 2020. Although this examination was performed after the issuance of the supplemental statement of the case (SSOC), it is cumulative of the evidence already of record. Thus, the Board may consider it in rendering a decision on appeal. On examination, the Veteran continued to endorse drones at his house 24/7. He stated that the drones are always around him, so he sleeps with a hard hat on to shield him. The examiner changed the Veteran’s diagnosis from psychotic disorder NOS to major depressive disorder with psychotic features and explained that there is “also a VA established diagnosis [of] delusional disorder, however; this diagnosis does not take into account that the occurrence of perceptual disturbances occurred during a depressive episode and have been ongoing as depressive symptoms have persisted.” He endorsed marrying his first wife (his previously noted “lady friend”) in February 2019 after 20 years of dating. He described their relationship as “up and down” due to his irritability. He stated that verbal altercations with his wife have escalated to physical aggression at least three times in the past two years. He stated that he struck his wife with his walking cane at least twice. He also described another incident of physical aggression towards his adult daughter that occurred when she attempted to intervene during a physical altercation with his wife in which he was “shaking her.” He stated that he and his wife sleep in separate beds to avoid the “feelings of being touched . . . and people being up under me.” He stated he rarely has visitors as “I don’t deal with a lot of people.” He stated that his mother lives next door, but they reportedly have a “rocky relationship because she told me I was the worse kid that she had.” His rocky relationship with his mother is well-documented within his group therapy VA treatment records. He stated that he is distant from his younger brother and he described his relationship with his sister, whom he previously went on walks with as noted in his Social Security records, as “so-so.” The Veteran stated he enjoys listening to music, watching television, and fishing in the summertime. Throughout the entire period on appeal, the Veteran has experienced symptoms of anger, irritability, depressed mood, anxiety, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently appropriately, and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, persistent delusions/hallucinations, and suicidal ideation. The Veteran is currently in receipt of a 70 percent rating for his PTSD and seeks a higher rating. However, the Board finds that a 100 percent rating for the Veteran’s PTSD is not warranted at any time during the appeal period. Although the Veteran has demonstrated severe symptoms associated with his PTSD, the overall evidence is not reflective of total occupational and total social impairment. The evidence shows that the Veteran has suffered from depression and anxiety, and that his irritability and isolation have caused problems in social and occupational functioning. However, the evidence does not show that it has caused him total functional impairment. He has not at any time been shown to have severe cognitive impairment, such as gross impairment in thought processes or communication. He has not shown to have any memory loss, much less severe memory loss such as memory loss for names of close relatives, his own occupation, or his own names. The Veteran has never been found to be in persistent danger of hurting himself or others and has not shown any grossly inappropriate behavior. He has expressed some suicidal ideation, but never with any plan, and his medical providers have never found that this ideation indicated that he was an actual threat to himself. The frequency and duration of these symptoms is thus not found to constitute symptomatology consistent with higher than a 70 percent rating. The Veteran clearly has significant, though not total, social impairment. Although he has reported becoming increasingly isolate and not being comfortable around others, he has been able to maintain a few family relationships, including those with his wife, children, and sister. The Board has also considered the Veteran’s symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 100 percent rating. See Mauerhan; Vazquez-Claudio, supra. Though the Veteran’s symptoms have been shown to be severe and manifest with frequency, the Board, in weighing all of the evidence, does not find that these symptoms are of a comparable severity to the symptomatology required for a rating of 100 percent. The Board also acknowledges that the Veteran has severe interference with his ability to work. The Board will address this further below with regards to the claim for a TDIU. The Board points out that the standards for the assignment of a TDIU are not the same as those for a 100 percent rating for a psychiatric disorder. Although a TDIU may be warranted when a person is unable to follow a substantially gainful occupation, a 100 percent rating for a psychiatric disorder states that total occupational and social impairment is needed. 38 C.F.R. §§ 3.340, 4.130. In this case, the Veteran’s symptoms have not been shown to be so severe that he has total social impairment. At no time has any examiner found this to be the case, and the Board finds that this is also not reflected in the Veteran’s treatment records or his own personal statements. The Veteran’s lay assertions have been considered. They are the basis of the VA examination reports and VA treatment records and are the reason why a 70 percent rating has already been assigned for the entire appeal period. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds it highly probative that throughout the appeal period, the VA examiners have found that the Veteran’s PTSD has manifested by, even when considering his drone delusions, at worst, occupational and social impairment with deficiencies in most areas. At no point has the Veteran’s PTSD been found to have manifested by total occupational and social impairment. The symptoms described in the Veteran’s lay statements are consistent with those noted in the VA treatment records and comport with the 70 percent rating that has been assigned. As such, these lay statements do not provide any basis upon which to assign any higher rating. The Board again stresses that the record is clear that the Veteran experiences delusions or hallucinations. The Veteran has reported that they have been persistent since their onset approximately four years ago. However, the totality of the evidence does not show that these delusions either alone or when considering his other PTSD symptoms, have caused total occupational and social impairment. The Board does not dispute that the Veteran’s PTSD is severe. However, the record of evidence is clear that he does still maintain some level of social ability including maintaining a marriage and relationships with his children and sister. He also has described enjoying some hobbies and continues to be able to function independently with no 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; or memory loss for names of close relatives, own occupation, or own name. In sum, the Board finds that the Veteran’s impairment due to PTSD has been most consistent with a 70 percent disability rating for the entire period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating than the 70 percent now assigned, that doctrine is not applicable. 38 U.S.C. § 5107(b). 2. Entitlement to a TDIU. 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 central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service connected condition and advancing age, which would justify a TDIU due solely to the service connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). For the entire appeal period, the Veteran has been service-connected for posttraumatic stress disorder (PTSD), rated 70 percent disabling. Accordingly, he meets the schedular requirements for a TDIU for the entire appeal period. See 38 C.F.R. § 4.16(a)(2). Therefore, the Veteran is eligible for a TDIU if he was unable to secure or follow substantially gainful employment as a result of his disability. After having considered all of the evidence of record, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran’s service-connected PTSD rendered him unable to secure and follow substantially gainful employment. On his TDIU application, the Veteran indicated he completed four years of high school. See July 2015 TDIU Application. He was last employed in April 2012, prior to the period on appeal. His work experience is in construction/physical labor. He does not have any experience in employment that allows him to be sedentary. Merriam-Webster online dictionary defines “sedentary” as (a) “doing or requiring much sitting” or (b) “not physically active.” https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). The Veteran is not currently service-connected for any physical impairments. His Social Security records indicate that he reported his physical, non-service connected disabilities, are what precluded him from being able to work. As noted above, the Board may not consider the impairments caused by these disabilities in rendering a decision. Instead, the question before the Board is whether the Veteran’s PTSD is of the severity to render him unable to secure and follow substantially gainful employment. In support of his claim, the Veteran has submitted a private vocational assessment indicating that his PTSD is in fact severe enough to cause him to be unemployable. As noted above, the Veteran has severe distrust in others; has difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. Although construction work can largely be performed alone, it is reasonable to assume that the Veteran would still have to interact with customers and supervisors. Thus, when considered in addition to his limited work history and skill set, the Board finds that the Veteran’s PTSD would require significant accommodations. Based on the foregoing, the Board affords the Veteran the benefit of the doubt and finds that he is unable to obtain and maintain any form of substantially gainful employment due to his service-connected PTSD, notwithstanding his non-service connected physical impairments. The criteria for TDIU have been met. 38 C.F.R. §§ 3.340, 4.16. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.