Citation Nr: 21015794 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-56 759 DATE: March 18, 2021 ORDER Entitlement to a rating in excess of 30 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 denied. FINDINGS OF FACT 1. The occupational and social impairment resulting from the Veteran’s PTSD is manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran does not meet the schedular criteria for assignment of a TDIU, and his service-connected disability does not render him unable to obtain or maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for entitlement to a total disability rating due to individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1965 to December 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This case was previously before the Board in September 2019, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for further appellate action. Increased Rating – PTSD The Veteran has asserted that he should have a higher rating for his PTSD as his symptoms are worse than those contemplated by the currently assigned rating. Of record are private mental health treatment records from Ms. L.G. In an April 2016 treatment report, it was noted that the Veteran continued to experienced significant disturbance in all areas of his life as a result of his PTSD. She noted that the Veteran’s sleep was so impaired that it interfered with his ability to drive a bus for the local transit authority. In a July 2016 treatment report, it was noted that the Veteran continued to experience significant disturbances in all areas of his life due to his PTSD. She reported that the Veteran was experiencing health problems, to include tremors and muscle spasms. However, there is no indication how those physical impairments are related to the Veteran’s service-connected PTSD. She noted that the Veteran had continued sleep impairment, intrusive recollections, and that he had a hard time going to VA for treatment as he was reminded of his stressors by pictures around the building. She noted that the Veteran was uncomfortable in crowds, that he did not trust the government, that he spent most of his time alone, and that he was having difficulty with memory and concentration. Also of record are private mental health treatment records from Dr. J.S. In a February 2017 treatment note, the Veteran was noted to report PTSD symptoms of depression, anxiety, grief and loss, and racing thoughts. The Veteran was noted to report that over the last few years, his symptoms had improved until the death of his sone approximately two months prior, at which time his anxiety and depressive symptoms had increased in severity. At that time, the Veteran denied suicidal and homicidal ideations, his speech was normal, his mood was euthymic, his affect was congruent with his mood, his thought processes and content were logical and goal directed, he was oriented, and his insight and judgement were fair. An additional February 2017 treatment noted from Dr. J.S. noted that the Veteran requested to begin monthly therapy. In a May 2017 treatment note, the Veteran was noted to report that he was still depressed and sad. He reported poor sleep as a result of nightmares. The Veteran was noted to have suicidal ideation, without a plan. The Veteran was noted to present at that time as casually dressed and fairly groomed. His speech was not pressured, his mood was fair, his affect was full, his thoughts were well organized, and his insight and judgment were fair. There was no evidence of hallucinations, delusions, or paranoia. In a July 2017 treatment note, the Veteran reported continued nightmares, but denied suicidal ideations at that time. At an August 2017 VA examination, the Veteran reported that he remained married to his wife of 28 years. He reported having regular contact with his mother, brother, and adult children. He reported regular contact with friends. He denied having hobbies, but reported that he liked to read and watch television. The Veteran reported that he helped with the household chores, he went to the grocery store, and that he went to restaurants approximately once per week. He reported that he attended worship services twice a week. The Veteran was noted to drive and have the ability to routinely attend to activities of daily living. The Veteran reported that he was not currently working, and that he had retired from the transit authority in 2009 after working for 18 years there. The Veteran reported experiencing episodes of heightened anxiety, but denied panic attacks. The Veteran reported some sleep impairment in the form of nightmares approximately twice a week. The Veteran denied current suicidal and/or homicidal ideation, intent, or plan. The examiner noted that the Veteran’s symptoms consisted of anxiety. Upon mental status examination, the Veteran’s grooming and hygiene were noted to be good. The Veteran made good eye contact, and was pleasant and cooperative with the interview. The Veteran was noted to describe his mood as good until he arrived at the appointment and had to walk from the parking lot, causing his hips to hurt. His affect was broad and congruent to speech content. The Veteran’s speech was of normal pace, rhythm, and volume. His thought processes were linear and logical. There was no sign of a thought disorder, delusions, or hallucinations. The Veteran was fully oriented to person, place, time, and circumstance. There was no obvious concern regarding the Veteran’s memory, and he appeared to be an adequate historian. The Veteran reported that his biggest problem was physical pain. In a September 2017 treatment note, the Veteran was noted to deny suicidal ideations. However, he reported that he still felt depressed. Mental status examination appeared to be within normal limits. In a December 2017 treatment note, the Veteran again reported suicidal ideations, without plan or intent. The Veteran reported that he was still sad and depressed, and that he had begun to experience panic attacks. The Veteran’s mood was fair, his affect was full, there were no audio or visual hallucinations, and he had no paranoia. In a January 2018 treatment note, the Veteran was noted to report continued symptoms of depression and sadness, and at that time he reported a lack of motivation. He denied suicidal ideations at that time. His mood was fair with full range of affect. He had not delusions or paranoia, his judgement and insight were fair, his speech was normal, and his thoughts were well organized. In an April 2018 treatment note, the Veteran was noted to report continued sleep impairment and nightmares. He reported that he was unable to have his back to people in public. He reported that the pressure of his PTSD symptoms was overwhelming at times, but denied any suicidal ideations. In a September 2018 treatment note, the Veteran was again noted to have denied suicidal ideations. His mood was noted to be sad, and his affect was flattened. However, his speech was normal, he did not exhibit delusions or hallucinations, and his judgement and insight were fair. In a May 2019 treatment note, the Veteran was noted to report continued depression, lack of motivation, anxiety, racing thoughts, and poor sleep. The Veteran did not report suicidal ideations at that time. In October 2017, the Veteran was seen at the VA Medical Center for a primary care appointment. Depression and PTSD screening conducted at that time were negative. The Veteran specifically denied having little interest or pleasure in doing things; and denied feeling down, depressed, or hopeless. The Veteran specifically denied having nightmares, being hypervigilant, and feeling detached or numb. In June 2019, the Veteran was seen for a routine visit at the VA Medical Center. At that time, a depression and suicide risk screening were negative. The Veteran denied being bothered by feelings of little interest or pleasure in doing things; feeling down, depressed, or hopeless; or thinking that he would be better off dead or of hurting himself in some way. In a September 2019 letter, Dr. J.S. noted Veteran’s thoughts were fairly organized. Dr. J.S. noted that over the past several years, the Veteran’s ongoing symptoms had become worse and noted impairments as follows: anxiety, panic attacks, depression, crying spells, loss of interest in activities, suicidal ideations, decreased motivation, irritability, frequent road rage, guilt, poor concentration, excessive worry, heightened startle response, hypervigilance, short-term memory loss, fatigue, chronic sleep impairment, and frequent flashbacks. In conjunction with the September 2019 private treatment report, Dr. J.S. also submitted a psychiatric disability benefits questionnaire (DBQ) in support of the Veteran’s claim. At that time, the Veteran was noted to have symptoms of depressed mood; suspiciousness; anxiety; panic attacks more than once per week; near continuous panic or depression affecting the Veteran’s ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; disturbances in motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideations; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; and spatial disorientation. Dr. J.S. concluded that the Veteran was demonstrating total social-occupational impairment from persistent symptoms of racing thoughts, anxiety attacks, poor concentration, unprovoked irritability, exaggerated startle response, depressed mood, fatigue, ritualistic behaviors, history of suicidal ideation with plan, impaired judgment, chronic sleep impairment with nightmares and flashbacks, avoidance, crying spells, forgetfulness, and hypervigilance. In an October 2019 treatment note from Dr. J.S., the Veteran was noted to have reported ongoing depression and lack of motivation. He reported he was still experiencing anxiety racing thoughts, and poor sleep. The Veteran denied suicidal ideations at that time. His mood was depressed and anxious, and his affect was constricted. However, there was no evidence of speech impairment, delusions, or hallucinations. His insight and judgment were noted to be fair, and his thought processes were noted to be fairly organized. In November 2019, the Veteran was seen at the VA Medical Center for a new patient visit. Depression and suicide screening performed at that time was negative. The Veteran denied feelings of little interest or pleasure in doing things; feeling down, depressed, or hopeless; and having thoughts that he would be better off dead or of hurting himself. However, PTSD screening at that time was positive. In February 2020, the Veteran was seen by primary care, at which time PTSD and suicide screening were negative. At a March 2020 VA examination, the Veteran reported that he remained married to his wife. He reported that he has contact with other relatives weekly. The Veteran reported having friends with whom he shared weekly contact, and additional friends that he was in contact with less often than weekly. He reported that he helped with household chores, cooking, and occasional grocery shopping depending on his back pain. He reported going to restaurants approximately once per week, that he attended worship services twice a week, and that he was able to drive. The Veteran reported intrusive recollections, and that he did not like sitting with his back to the door in public spaces. The Veteran denied symptoms of panic. The Veteran reported experiencing irritability and hypervigilance, but denied exaggerated startle response. He reported some memory issues. The Veteran denied current suicidal or homicidal ideations. The examiner noted that the Veteran’s symptoms consisted of anxiety, chronic sleep impairment, and mild memory loss. Upon mental status examination, the Veteran’s grooming and hygiene were noted to be good. He made good eye contact, was pleasant and calm, and was cooperative with the interview. Motor movements were unremarkable. His mood was described as “OK,” but he reported feeling very nervous. His affect was broad and congruent to speech content. His speech was of normal pace, rhythm, and volume. Thought processes were linear and logical. There was no sign of a thought disorder, delusions, or hallucinations. The Veteran was fully oriented to person, place, time, and circumstance. The Veteran’s memory was intact and memory screening did not reveal any obvious concerns. The examiner specifically noted that the Veteran’s presentation was much better and incongruent with the September 2019 report from Dr. J.S. The examiner noted that the occupational and social impairment resulting from the Veteran’s PTSD was manifested by mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In May 2020, the Veteran was seen at the VA Medical Center emergency department for complaints of foot swelling. Suicide screening conducted at that time was negative, and the Veteran specifically denied being suicidal. The Board acknowledges that the symptoms reported by the Veteran’s mental health treatment providers, and those reported in the VA examination reports of record are vastly different. As such, the Board must reconcile that inconsistency. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In this case, the Board affords the most probative weight to the August 2017 and March 2020 VA examination reports. In this regard, the examiners thoroughly reviewed and discussed the relevant evidence, and paid close attention to any evidence that may potentially be favorable to the Veteran. The VA examiners thoroughly reported the Veteran’s subjective reports of his symptoms, and those reports are consistent with the objective findings noted on mental status examination. Further, the VA examiners noted the inconsistencies between the private mental health reports, and full objective examination of the Veteran. In contrast, the private medical records were based heavily on subjective reports by the Veteran, and the subjective reports did not appear to be verified by objective testing, or findings on mental status examination. Additionally, the private treatment records report symptoms such as chronic pain and essential tremors and psychiatric symptoms resulting from such. However, the Veteran is not service-connected for either of those disabilities. As such, the Board assigns more probative weight to the August 2017 and March 2020 VA examination reports of record, than the findings in the mental health treatment notes of record. In addition, the Board has considered the lay statements of record, the Veteran’s statements, and the sworn testimony before the Board concerning the severity of his PTSD. Although the Board finds the statements and sworn testimony to be credible, it finds that those factors do not provide sufficient evidence on which to award any higher rating for PTSD. The Board finds that the Veteran is not entitled to a rating in excess of 30 percent for PTSD. In this regard, the occupational and social impairment resulting from the Veteran’s PTSD has not been manifested by reduced reliability and productivity. The Board notes that the Veteran’s PTSD has been manifested by symptoms of anxiety, depression, difficulty sleeping and nightmares, avoidance, some memory trouble, and lack of motivation. During the appeal period, the Veteran has enjoyed a close relationship with his wife, has regular contact with his adult children, has reported having many friends, and has reported enjoying being out in social settings. The Board acknowledges that the Veteran reported increased symptoms of depression following the death of his son. However, those increased symptoms are not of such a severity so as to warrant a higher rating. Further, the private mental health treatment notes of record have noted that the Veteran has intermittently reported suicidal ideations. However, that finding is not otherwise supported by the evidence of record. The Veteran has had multiple suicide screenings during the course of the appeal in conjunction with medical treatment for various ailments. While the Veteran had, at times, reported depression and symptoms of PTSD, suicide screenings were always negative, and the Veteran specifically denied having thoughts of harming himself. Further, the VA examination reports noted that the Veteran denied suicidal ideations. Additionally, even in the private medical reports, the Veteran was never deemed a danger to himself or others. Further, the Veteran has reported hypervigilance; however, there is no indication from the record that the Veteran has obsessional rituals that interfere with his ability to perform activities of daily living. The Veteran did not have issues with speech, hallucinations, delusions, insight, judgment, or thinking. There was some mild memory impairment reported, but objective testing did not support any obvious defects in the Veteran’s memory. As such, the Board finds that entitlement to a higher rating for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 30 percent for PTSD is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to TDIU The Veteran has asserted that he is unable to obtain and maintain gainful employment as a result of his PTSD. A review of the record shows that the Veteran is only service-connected for PTSD, for which he is in receipt of a 30 percent rating. As such, the Veteran does not meet the schedular criteria for assignment of a TDIU. However, a TDIU may be granted on an extraschedular basis if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities. 38 C.F.R. § 4.16 (2019). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91(1992); Faust v. West, 13 Vet. App. 342 (2000). Additionally, 38C.F.R. §4.16 (b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58 (2019). A review of the record shows that the Veteran last worked full-time in August 2009, at which time he reportedly stopped working as a result of his PTSD. Prior to retirement in 2009, the Veteran had worked for the local transit authority as a bus driver for 18 years. The Veteran has a high school education. At a July 2015 VA examination, the Veteran reported that he retired from his position with the local transit authority in 2009. He denied having any difficulties while on that job as a result of his PTSD at the time of the VA examination. the Veteran reported that he went to work after that driving a local county school bus for approximately three years. He reported that he worked approximately 30 hours a week during that time period. The Veteran reported that he resigned from that position in 2014 due to feeling that the children were disrespectful. He denied any problems with co-workers or supervisors, and just reported that he could no longer tolerate the children’s behavior. He reported at that time, he was enjoying his retirement from bus driving, and was currently working with the ministry at his church and enjoying it very much. There is no indication from the examination report that the Veteran was forced to retire from the transit authority as a result of his service-connected PTSD, or that he was unable to maintain his job as a school bus driver as a result of his service-connected PTSD. Additionally, as discussed in detail above, the Veteran was afforded VA examinations in August 2017 and March 2020. The examiners indicated that the Veteran could function independently, and his occupational and social impairment was manifested by mild and transient symptoms that have little or no impact on his ability to work. The examiners noted that his biggest problem now was being physical pain from his nonservice-connected back and hips. Specifically, the Veteran’s PTSD was mild in nature and would not preclude the Veteran from obtaining and maintaining gainful employment when considering his work experience and level of education. In this regard, the VA examiners indicated that the Veteran was alert to person, place, time and situation. He did not have significant impact on his ability to adapt to stressful environments, to include work or a worklike setting. Further, he did not have difficulty maintaining appropriate work and social relationships. Further, the Board acknowledges the private medical records indicating that the Veteran was totally disabled due to PTSD. However, the Board assigns more probative weight to the VA examination reports of record. As discussed above, the VA examiners’ objective findings are consistent with the Veteran subjective reports at those examinations. The private mental health treatment records are based heavily on the Veteran’s subjective reports, and do not appear to be corroborated by objective findings. Further, the private mental health treatment notes of record routinely discuss symptoms of the Veteran’s physical disabilities which are not service-connected. Based on the above, the Board finds that the Veteran’s service-connected PTSD does not prevent him from obtaining and maintaining gainful employment. In this regard, while the Veteran is in fact not currently employed, the record does not show that his inability to work is the result of PTSD. The Veteran’s PTSD is somewhat mild in severity and there is no indication that the Veteran’s symptoms result in an inability to perform occupational tasks consistent with his education and industrial history. In fact, the Veteran has been noted to have voluntarily retired, but that he had not experienced any trouble at work prior to his retirement as a result of his PTSD symptoms. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ivan Franklin 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.