Citation Nr: 21009562 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-33 866 DATE: February 22, 2021 ORDER The claim for reopening of a previously denied claim of service connection for post-traumatic stress disorder (PTSD) is dismissed. The claim of entitlement to service connection for residuals of head injury or traumatic brain injury is dismissed. The claim of entitlement to service connection for bilateral hearing loss is dismissed. The claim of entitlement service connection for residuals of prostate cancer is dismissed. The claim of entitlement to service connection for chloracne or skin disability is dismissed. The claim of entitlement to service connection for residuals of colon cancer is dismissed. The claim of entitlement to service connection for Barrett's esophagus or gastroesophageal reflux disease is dismissed. The claim of entitlement to service connection for valvular heart disease, to include ischemic heart disease, is dismissed. The claim of entitlement to service connection for a respiratory disease, to include asthma, is dismissed. A disability rating greater than 70 percent for adjustment disorder with anxiety and depressed mood is denied. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. In January 2021, at a hearing before the undersigned and prior to the promulgation of a decision in the appeal, the Veteran stated that a withdrawal of the appeals for service connection for PTSD; residuals of head injury, or traumatic brain injury; bilateral hearing loss; residuals of prostate cancer; chloracne, or skin disability; residuals of colon cancer; Barrett’s esophagus, or gastroesophageal reflux disease; a respiratory disability to include asthma; and valvular heart disease, to include ischemic heart disease, was requested. 2. Throughout the rating period, the Veteran’s adjustment disorder with anxiety and depressed mood has been manifested by no worse than occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood due to anxiety, depression, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships; total occupational and social impairment has not been demonstrated. 3. The Veteran has not worked full-time since 2004. He has a high school education, and work experience in golf course maintenance. 4. Service connection is in effect for adjustment disorder with anxiety and depressed mood, rated as 70 percent disabling; and for scar residuals of laceration of right cheek, rated as 0 percent (non-compensable) disabling. The combined disability rating is 70 percent. 5. Service-connected adjustment disorder with anxiety and depressed mood is of such a nature or severity to prevent the Veteran from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims of entitlement to service connection for PTSD; residuals of head injury, or traumatic brain injury; bilateral hearing loss; residuals of prostate cancer; chloracne, or skin disability; residuals of colon cancer; Barrett’s esophagus, or gastroesophageal reflux disease; a respiratory disability to include asthma; and valvular heart disease, to include ischemic heart disease, by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205. 2. Throughout the rating period from February 14, 2017, the criteria for a disability rating greater than 70 percent for the Veteran’s adjustment disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9440. 3. Throughout the rating period from February 14, 2017, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1963 to July 1975, and from October 1965 to October 1968, including service in the Republic of Vietnam. He timely appealed these matters from a December 2017 rating decision. In January 2021, the Veteran testified before the undersigned at a virtual hearing. A transcript of the hearing is associated with the claims file. All available records identified by the Veteran as relating to each of his claims decided below have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. There is no evidence indicating a material change in severity of disability since last examination. Examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran’s appeal. 38 U.S.C. § 5103A(a)(2). Dismissal The Board of Veterans’ Appeals (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. An appeal may be withdrawn by the Veteran or by his authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. The withdrawal must identify the Veteran, his claims file number, a clear statement of withdrawal, and must identify the issues impacted. 38 C.F.R. §§ 19.55, 20.205. In the present case, the undersigned was notified at the scheduled hearing that the Veteran seeks to withdraw the appeal for service connection for PTSD; residuals of head injury, or traumatic brain injury; bilateral hearing loss; residuals of prostate cancer; chloracne, or skin disability; residuals of colon cancer; Barrett’s esophagus, or gastroesophageal reflux disease; a respiratory disability to include asthma; and valvular heart disease, to include ischemic heart disease. With respect to the respiratory condition, it was noted that although a notice of disagreement initiating the appeal and granting jurisdiction to the Board was filed, such was omitted from the statement of the case. Nonetheless, withdrawal of the notice of disagreement and appeal on this issue was specifically included in the withdrawal. The Board finds the request to be fully informed. There remain no allegations of errors of fact or law for appellate consideration as to each of those issues. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for PTSD; residuals of head injury, or traumatic brain injury; bilateral hearing loss; residuals of prostate cancer; chloracne, or skin disability; residuals of colon cancer; Barrett’s esophagus, or gastroesophageal reflux disease; a respiratory disability to include asthma; and valvular heart disease, to include ischemic heart disease. Those claims are dismissed. Rating Adjustment Disorder Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at a moment of examination. 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 solely based on social impairment. 38 C.F.R. § 4.126. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that 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); and inability to establish and maintain effective relationships, is rated 70 percent disabling. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of 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. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the symptoms do need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). A May 2017 VA examiner described the Veteran’s occupational and social impairment as with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Current symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The Veteran was adequately groomed though unshaven, casually clad. Thought processes were circumstantial. There were no suicidal ideation, no homicidal ideation, and no psychotic symptoms. Other symptoms included flashbacks and nightmares. Clinical evaluation of the Veteran by a social worker at a homeless walk-in facility in July 2018 revealed that the Veteran’s appearance was appropriate, and his behavior was cooperative. His mood was pleasant, and his affect was congruent with mood and full range. Eye contact was established and maintained. Speech was of normal rate and volume. Thought process was linear and logical, and thought content was relevant and rational. Concentration was adequate, and cognition and memory were within normal limits. Judgment and insight were fair. There were no auditory or visual hallucinations. Risk screening for suicidal ideation or intent or plan was negative. The Veteran’s depressive symptoms appeared most prevalent in October 2018. A clinical therapist at a Vet Center noted that the Veteran’s depression had worsened to the point of neglecting minimal personal hygiene, skipping meals, and not getting out of bed “for days on end.” The Veteran was extremely guarded and wary of all forms of authority, and was generally suspicious and mistrusting of most individuals he met. He demonstrated an inability to remember appointment dates and times without verbal and written prompting. He struggled to remember names of group members and family members. He was a poor historian, and his long-term memory appeared to be declining. He continued to demonstrate extreme anhedonia, exaggerated startle response, and panic attacks which became more frequent and of longer intensity. A clinical therapist at a Vet Center noted serious impairment in social and occupational functioning in October 2019; and indicated that the Veteran experienced occupational and social impairment with deficiencies in most areas—such as work, family relations, judgment, thinking, and mood—due to such symptoms as obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic and depression; impaired impulse control; neglect of personal appearance and hygiene; and an inability to establish and maintain effective relationships. In January 2021, the Veteran and his wife testified that the Veteran had difficulties interacting with people. He was suspicious and mistrusted others. While impairment is demonstrated, total occupational and social impairment due to adjustment disorder is not shown or approximated. There is no compelling indication of 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 minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. While the Veteran’s depression had worsened and he at times appeared unshaven, none of the Veteran’s actions throughout the appeal period, suggest such severity of symptoms of adjustment disorder. Although he is mistrusting, no violence is reported. His long-term memory is diminishing, and he struggles with names. While the actual level of functioning has been severe at times, total impairment has not been demonstrated. No increased rating is warranted. In short, the Board finds that the overall severity, frequency, and duration of the Veteran’s symptoms are not on par with the level of severity contemplated by the total rating criteria at any time. The preponderance of the evidence is against the claim; there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. TDIU Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. § §§ 3.340, 3.34l, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § § 3.341(a). In this case, the Veteran has completed four years of high school education, and has had additional training in trade school (brick masonry, upholstery, and woodwork). He last worked full-time in 2004 in golf course maintenance. The Veteran filed his current claim for increased rating, which includes TDIU benefits, on February 14, 2017. Service connection is in effect currently for adjustment disorder, rated as 70 percent disabling; and for scar residuals of laceration of right cheek, rated as 0 percent (noncompensable) disabling. The combined disability rating is 70 percent from December 12, 2014. Here, the threshold percentage requirements for consideration of a TDIU are met throughout the rating period on appeal. The remaining issue, then, is whether the Veteran’s service-connected disabilities render him unable to obtain and retain substantially gainful employment. The sole fact that a Veteran 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 can find employment. Van Hoose, 4 Vet. App. at 363. A May 2017 VA examination report reveals that the Veteran’s depressive symptoms were most prevalent; and that current symptoms included difficulty in adapting to stressful circumstances, including work or a worklike setting. Vet Center records, dated in September 2017 and in October 2018, reveal that the Veteran’s ability to understand and follow directions was considered significantly impaired. His ability to retain instructions, as well as sustain concentration to perform simple tasks, was considered significantly impaired. Also significantly impaired was the Veteran’s ability to respond appropriately to co-workers, supervisors, or the general public. In October 2019, a clinical therapist at the Vet Center summarized that the Veteran’s PTSD led to an inability to maintain gainful employment, a lack of social functioning, and a general poor quality of life. While service connection is not in effect for PTSD, the Board notes that a VA examiner in May 2017 found more than one mental disorder; and opined that it was not possible to differentiate symptoms attributed to each diagnosis due to overlapping symptomatology. Significantly, the only mental disorder that has met threshold criteria for TDIU benefits is the service-connected adjustment disorder with anxiety and depressed mood. In this regard, the reasonable doubt doctrine mandates that all signs and symptoms of mental disorder be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In January 2021, the Veteran testified that he tried to find work in upholstery but that it was not a good trade; and testified that he was not good with carpentry. He tried his own lawncare business and did complete some jobs, but testified that there were people who were not happy and he would not get paid. In this case, the Board has given consideration to the Veteran’s testimony and finds the overall evidence to be at least in relative equipoise on the question of whether the Veteran’s service-connected adjustment disorder with anxiety and depressed mood renders him unemployable. Given his education level, work experience, and remaining functional capacity from service-connected disability, the Board finds that the Veteran would be unable to secure and follow substantially gainful employment due to service-connected adjustment disorder with anxiety and depressed mood. Hence, TDIU benefits are awarded. 38 U.S.C. § 5107. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.