Citation Nr: 21009813 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-23 091A DATE: February 23, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PTSD symptoms did not approximate occupational and social impairment with deficiencies in most areas. 2. The Veteran has not had one disability ratable at 60 percent or more, or two or more disabilities for a combined rating of 70 percent or more at any point during the appeal period, and the preponderance of the evidence is against a finding that his service-connected disability has rendered him incapable of obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1966 to April 1969. The Board of Veterans’ Appeals (Board) received correspondence from the Veteran in February 2019, in which he indicated that he wished to revoke representation from his former attorney. He has not appointed a new representative since that time, and proceeds pro se. In February 2019, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. The presiding VLJ has since retired and is no longer available to participate in this decision. The Veteran was informed of this fact in a December 2020 letter, where he was also informed of his right to a hearing before another VLJ. As the Veteran has not responded to that letter, the Board will presume that he does not wish to have another Board hearing. In October 2019, the Board remanded this case for additional development. Specifically, the Regional Office (RO) was instructed to schedule the Veteran for another VA examination to assess the current severity of his PTSD. However, the record indicates that the Veteran failed to report for his scheduled examination. More specifically, the record reflects that the Veteran was notified via FedEx of the appointment date and time for his examination. Notification of the delivery to the Veteran’s address was confirmed with a FedEx tracking number. However, the Veteran has not provided a reason why he did not report for his examination. Thus, as he failed to report for his examination, and as he has not shown a good cause for such failure to report, the claims will be decided based on the evidence of record. 38 C.F.R. § 3.655(b). A disability rating in excess of 50 percent for service-connected PTSD A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In addition, separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” regardless whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his PTSD symptoms are severe enough to warrant a higher rating. For reasons indicated below, the Board finds that a rating in excess of 50 percent is not warranted at any time during the period on appeal. The Veteran’s service-connected PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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. In addition, 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. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes, with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), that ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held 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. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. 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 affecting the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). DSM-5 is applicable in the instant case as the Veteran perfected his appeal in July 2015, which is after August 4, 2014. 80 Fed. Reg. 14308 (March 19, 2015). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It is the impact of the symptoms on occupational and social functioning that determines the rating. On a December 2009 VA examination report, the examiner described the Veteran as depressed and fatalistic. He explained that the Veteran does not believe that he has an impact on his future. The Veteran reported that he has a girlfriend who he has known for four years. He indicated that he is socially isolated and estranged from his daughter due to his PTSD symptoms. He also stated that he does not have contact with family members. The Veteran described himself as a “hermit,” explaining that he does not like being with people and does not feel he needs anyone. He reported that he switched jobs about every three years, which he felt was related to his three-year enlistment in the military. He also stated that his employment got worse because he would quit jobs for no reason. The Veteran further explained that he had some problems with authority on his jobs as he would question their decisions. The examiner opined that the Veteran’s PTSD symptoms resulted in occupational and social impairment with deficiencies in judgment, thinking, family relations, work, mood, or school. He noted that the Veteran’s prognosis for improvement is poor, explaining that the Veteran often does not understand the full impact of his behavior on others and may become rigid and defensive when confronted by others. At a February 2015 VA examination, the examiner recorded symptoms of suspiciousness and chronic sleep impairment. The examiner opined that the Veteran’s PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that his daughter “disowned him.” He also reported that he has never seen his two grandchildren, aged seven and eight, and that there is no clear reason for not being able to see them. The Veteran indicated that he is still with his girlfriend. He stated that he has three brothers and a sister, and that they keep in touch sometimes. The Veteran was oriented to all spheres. He denied having any suicidal ideations, delusions, or hallucinations. He was adequately groomed and casually dressed, with a pleasant, polite, and cooperative attitude. His thought processes were logical and goal-directed. The examiner remarked that the Veteran’s overall presentation was jovial and that he did not appear depressed, anxious, or in distress when describing what would be disturbing scenes to anyone. He further noted that the Veteran’s report did not match his words and that exaggeration seems likely. A December 2016 mental health note indicates that the Veteran was alert, non toxic, and calm. The examiner noted that no abnormalities were detected. At the February 2019 Board hearing, the Veteran testified that he has nightmares three to four times a week. See Board hearing transcript at 2-3. He stated that he socially isolates himself because he often feels that he is being watched or followed when he is in public places. See Board hearing transcript at 3. He also stated that he has not talked to his daughter in about 20 years, which prevents him from having a relationship with his grandchildren. See Board hearing transcript at 5-6. The Veteran mentioned having suicidal thoughts about once a month, but further explained that he has never tried killing himself. Id. The Board has considered all evidence of record and finds that the Veteran’s service-connected PTSD does not warrant a rating in excess of 50 percent at any time during the appeal period. His PTSD symptoms have been mostly productive of occupational and social impairment with some reduced reliability and productivity due to symptoms such as anxiety; suspiciousness; chronic sleep impairment; flattened affect; disturbances of motivation and mood; and some difficulty establishing and maintaining effective work and social relationships. During this period, however, the evidence does not indicate that the Veteran manifested PTSD symptoms that resulted in occupational and social impairment with deficiencies in most areas to warrant the next higher 70 percent rating. Specifically, the evidence does not show, nor has the Veteran reported, that his psychiatric disability was manifested by near-continuous panic or depression, spatial disorientation, or neglect of personal appearance and hygiene to warrant at least the next higher 70 percent rating. Although the Veteran testified at the Board hearing that he experienced suicidal thoughts about once a month, he explained that he has never tried killing himself. He also testified at the hearing that he had some problems with routine activities. The Veteran was told to seek treatment at a VA facility. As previously stated, he was scheduled for a VA examination in December 2019 to more accurately assess the severity of his PTSD, but he failed to report for the examination, and he did not provide a reason for his failure to show up. At prior VA examinations, the Veteran denied having suicidal thoughts. As the Veteran did not report for the more recently scheduled VA examination, the Board must rely on the evidence of record. In this regard, the Board finds the December 2009 and February 2015 VA medical examiners’ opinions to be well-reasoned and thorough, having considered the entire record, including the Veteran’s medical history, and providing specific medical evidence for the opinions rendered. The medical opinions warrant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examination reports do not reflect that the Veteran endorsed symptoms that caused deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to warrant a 70 percent rating. Although the Veteran reported that he did not have a relationship with his daughter, he indicated that he has three brothers and a sister with whom he communicates. He also reported that he has a girlfriend. The Veteran did not report a breakdown in the relationship with his girlfriend. While there may have been day-to-day fluctuations in the manifestations of the Veteran’s PTSD, the evidence shows no distinct periods of time during the appeal period when his disorder varied to such an extent that a rating greater than the current evaluation of 50 percent would be warranted. See Hart, 21 Vet. App. at 507. In reaching this decision, the Board has considered and attributed all potentially service-connected symptoms to the Veteran’s PTSD in determining that a rating in excess of 50 percent is not warranted. Mittleider v. West, 11 Vet. App. 181 (1998). In general, the Veteran was adequately groomed and able to take care of himself physically. The weight of the evidence shows that he was alert and oriented in all spheres. During the last VA examination, he denied experiencing hallucinations and suicidal thoughts, plans, or intent. Thus, the evidence of record also negates a finding of total occupational and social impairment at any time during the appeal period to warrant a rating of 100 percent. The Board has considered the lay statements of the Veteran, including statements made at the Board hearing, asserting that the symptoms manifested by his service-connected PTSD warrant a higher rating. The Board notes that, although lay persons are competent to provide opinions on some medical issues, the specific issue of the severity of a disability is outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Thus, the Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. The Board has considered the benefit-of-the-doubt doctrine. However, the Board finds that the Veteran’s symptoms do not approximate occupational and social impairment with deficiencies in most areas. Thus, the preponderance of the evidence is against a rating in excess of 50 percent. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues, unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a TDIU The Veteran contends that his service-connected disability (PTSD) makes him unable to secure or follow a substantially gainful occupation. See May 2012 Application for Increased Compensation Based on Unemployability Form (VA Form 21-8940). He indicated that he last worked in December 2010. Id. Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for a TDIU. Id. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the Board notes that the Veteran is service-connected for only one disability—PTSD, with a rating of 50 percent for the entirety of the period on appeal. As this disability is not ratable at 60 percent or more, the Veteran is not entitled to a TDIU on a schedular basis at this time. 38 C.F.R. § 4.16(a). The Board also finds that a referral for extraschedular TDIU consideration is not warranted. Specifically, the record does not indicate that the Veteran is unable to secure and maintain substantially gainful employment solely due to his service-connected disability. 38 C.F.R. § 4.16(b). Although the Veteran noted on his VA Form 21-8940 that he stopped working as a truck driver in December 2010 due to his PTSD, the record does not reflect that he was forced to stop working solely due to his PTSD. In fact, his Board hearing testimony indicates that he worked as a truck driver because it helped him cope with the problems he experienced with interpersonal relationships. See Board hearing transcript at 8. Specifically, the Veteran testified that he “drove a tractor-trailer because he did not want to go into a factory and work around people all the time.” Id. He further explained that he wanted to get away from people and that he thought it was the only job that would allow him to do that. Id. He stated that he retired from that job when he turned 62. Id. The VA Form 21-8940 shows that the Veteran worked with the same trucking company on a full-time basis from 2001 to December 2010. The Veteran reported that his highest grade of school completed is the 12th grade. See March 2012 VA Form 21-8940. He indicated on the form that he did not complete any special job training and that he did not attend any trade or vocation school. Id. At the February 2015 VA examination, the examiner gave the Veteran a ‘fair’ rating in each of the four areas regarding residual workplace functional capacity and impairment due to his service-connected PTSD. The areas ranked are understanding and memory, sustained concentration and persistence, social interaction, and adaptation. The examiner explained that those four areas were considered when thinking about the Veteran’s ability to perform work-related tasks. She noted that the Veteran’s PTSD symptoms do not appear so severe that they limit his activities. She further noted that the Veteran talked comfortably with her about his hobby of repairing and rebuilding old cars, which suggests that he has adequate mental capacity to keep track of parts, and memory of how to put them together. Regarding the Veteran’s sleeping problems, the examiner noted that he was not interested in talking to a doctor about sleeping medications and he did not appear tired during the interview. As already noted herein, the Veteran did not appear for a more recent VA examination to evaluate his PTSD. Based on the evidence of record, the Board finds that the Veteran’s service-connected PTSD does not make him unable to obtain and maintain substantially gainful employment. The VA medical opinion does not indicate that his PTSD significantly impacts his ability to secure and maintain substantially gainful employment. His Board hearing testimony also does not indicate that he stopped working due to his PTSD. As previously stated, he testified that his PTSD was his primary reason for seeking his last job as a truck driver because the job afforded him the limited social interactions he desires. As such, the Board concludes that the evidence of record shows that the Veteran’s only service-connected disability, PTSD, does not render him unable to obtain and maintain substantially gainful employment. The Veteran is competent to report his functional limitations at work, and the Board finds his lay evidence credible and probative. However, as the evidence does not demonstrate that he would be unable to obtain or maintain substantially gainful employment due solely to his service-connected PTSD, referral for extraschedular consideration is not warranted. The Board therefore finds that the claim for a TDIU must be denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.