Citation Nr: 21024296 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-11 684 DATE: April 22, 2021 ORDER Entitlement to a disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire period on appeal the Veteran’s PTSD was manifested by, at worst, occupational and social impairment with reduced reliability and productivity. 2. Service connection currently is in effect for PTSD, evaluated as 30 percent disabling effective May 15, 2009, and as 50 percent disabling effective February 24, 2012, and for tinnitus, evaluated as 10 percent disabling effective December 1, 2008; the combined disability evaluation for compensation is 60 percent effective February 24, 2012. 3. The Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating greater than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2019). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to July 1966. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claims initially were before the Board in September 2015. At that time, the Board denied the claim of entitlement to a disability rating greater than 50 percent for PTSD and remanded the TDIU claim. He appealed the September 2015 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2016, the Court granted a Joint Motion for Partial Remand (JMPR) vacating that portion of the Board’s decision which denied entitlement to a disability rating greater than 50 percent for service-connected PTSD. The Board remanded the Veteran’s claims again in August 2016 and August 2017. In a March 2019 decision, the Board denied both of the currently appealed claims and the Veteran again appealed to the Court. In April 2020, the Court granted a Joint Motion for Remand (JMR) which vacated the Board’s March 2019 decision. In September 2020, the Board remanded the currently appealed claims. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). 1. Entitlement to a disability rating greater than 50 percent for PTSD The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to a disability rating greater than 50 percent for PTSD. Although he contends that he is entitled to a higher rating for his PTSD, entitlement to a rating in excess of 50 percent is not established by the record. For example, he attended a VA psychiatry appointment in February 2012. He had good days and bad days. He expressed frustration that he does not like to do too many things and depends on his wife to drive him around. He reported difficulty sleeping but also admitted that he was not taking medication for his symptoms. A mental status examination noted good appetite, poor sleep, flat and withdrawn affect, no suicidal ideations or hallucinations and good concentration. He was encouraged to take a sleeping pill to help with sleep, attend the PTSD intro class and follow up within six months. The Veteran had a follow up appointment in October 2012. He reported trying to relax more, and said he was feeling a little better. He asserted that his medication was making him jittery and tired all the time but denied alcohol use and suicidal thoughts. He also reported that his 32-year-old daughter lived with him and his spouse. He alleged that he and his daughter had some disagreements. A mental status examination noted the Veteran to have a good appetite, fair sleep, depressed and frustrated mood/affect and no suicidal ideations or delusions. Further, he remained alert, oriented and had good concentration. He was advised to continue with the current treatment plan of individual psychotherapy and medication management, and to follow up in six months. The Veteran was afforded a VA examination in April 2013. He endorsed symptoms of depressed mood, anxiety, suspiciousness, impairment of short- and long-term memory, flattened affect and difficulty understanding complex commands. Based on the examination, the examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examiner further opined that the cognitive impairment was relatively mild and did not affect his overall functional level that much. Finally, the examiner noted that since the Veteran’s initial evaluation for PTSD in October 2009 there did not appear to be any significant changes. The Veteran had no subsequent treatment until April 2014. He arrived 25 minutes late to the appointment. His wife reported that he had been grumpy and antisocial. He asserted that he liked to be left alone and was not motivated to do much. He also reported doing a lot of sleeping and only going out to attend doctor’s appointments. He denied having suicidal thoughts. He reported taking a half dosage of his medication and no longer feeling jittery. He was noted to engage in activities such as watching television and reading a little. A mental status examination noted good appetite and sleep, grumpy mood/affect, no suicidal ideations, no hallucinations and good concentration. Notably, his wife did most of the talking during the interview. He was advised to follow up in six months or sooner if needed. At his follow up appointment in October 2014, the Veteran reported doing about the same and continued to report that he likes to be left alone. Mental status examination noted good appetite, good sleep and no hallucinations or suicidal ideations. He was noted to be neatly dressed, well-groomed with good hygiene, and pleasant with a smiling face. He was also noted to have good concentration. At a subsequent October 2014 medication management appointment, he reported difficulty coping emotionally with traumatic events, as evidenced by anxiety, isolation, anger, and nightmares. He was prescribed Sertraline. The Veteran had a follow up examination in April 2015. At this examination, he reported that he found out he was legally blind. He denied suicidal thoughts and reported tolerating his medications well. He also reported that his mood was as good as can be but was noted to have ongoing PTSD symptoms of anxiety, being easily startled and having intrusive thoughts. His activities included watching television. A mental status examination noted a good appetite, fair sleep, normal mood/affect and good concentration. He had no suicidal or homicidal ideations but was noted to be withdrawn with limited speech. He was advised to stay on his medication and continue individual psychotherapy and medication management. During his October 2015 medication management appointment, the Veteran denied concerns regarding his medication. During his October 2015 psychotherapy session, his symptoms remained largely the same. He reported that he depends on his wife a lot for help. Specifically, he reported that his wife keeps things together as he is legally blind. The examiner noted that the Veteran tends to be isolated and needs to be pushed to take care of his hygiene and taking a bath. He was not very talkative and appeared withdrawn, sitting with his arms folded. The mental status examination noted a good appetite but poor sleep, abnormal mood with a withdrawn and flat affect, no hallucinations or suicidal ideations, and good concentration. He declined sleep medication. He was advised to continue with the current treatment plan and follow up in four months or sooner if needed. The Veteran had a follow up psychotherapy session in February 2016. He reported going to Chicago to visit is daughter. It was noted that he needed to be more active during the day, however, his mood was noted as improving although he still reported that he liked to be left alone. He characterized his sleep as off and on and endorsed ongoing symptoms of being easily startled, nightmares and intrusive thoughts. Mental status examination remained largely unchanged with good appetite, fair sleep, normal mood and affect, no suicidal ideations or hallucinations and good concentration. Notably, he was smiling, and reported plans to take his wife out to dinner. He was advised to return for follow up in four months. In April 2016, the examiner noted that the Veteran appeared to be minimizing symptoms but endorsed depression. He was encouraged to attend periodic mental health sessions. In April 2016, the Veteran was afforded another VA examination. He reported not having contact with his son in over 25 years, but good relationships with his other children and being close to his brother and a couple of friends who called him periodically. He reported that he spends the majority of his time watching television. He also reported going to church occasionally. With respect to his mental history, he reported no difficulty sleeping, but difficulty staying awake, with energy levels way down due to both mood and physical changes. His wife reported at the April 2016 examination that the Veteran stayed at home, did not want to go anywhere, stayed in his robe all the time, only got dressed if he knew someone was coming over, but then would leave the room and go to bed. He explained that he does not like socializing with others, as he gets tired of the laughing and talking. He also reported nightmares about Vietnam once to twice a week but reported being able to return to sleep quickly. He also reported avoiding people who talk about war and expressed some anger about how people were treated in the service. He endorsed some symptoms of hypervigilance and his wife reported that he sits and watches the neighborhood and gets irritated easily over nothing. His wife also reported that he does not allow close relationships outside the immediate family. The examiner noted that the Veteran had difficulty articulating what he is experiencing and was likely minimizing symptoms. The April 2016 VA examiner characterized the Veteran as cooperative, with normal speech, organized and goal directed thought, and no delusions or hallucinations. Based on the examination and the evidence of record, the examiner reported that the complaints and symptoms sounded similar to his previous examination in 2009 and his PTSD consult evaluation in 2010. He noted that the Veteran reports some symptoms consistent with depression; however, the symptoms were considered secondary to PTSD and thus were not given their own diagnosis. The examiner opined that PTSD was productive of occupational and social impairment with reduced reliability and productivity. The Veteran attended cognitive based psychotherapy in May 2016. He presented fully oriented but endorsed ongoing sleep issues that adversely affected his mood and symptoms of depression including poor motivation, low mood, poor interest in activities and nightmares. He was scheduled for monthly check ins with the clinician. At his monthly follow up in June 2016, the Veteran presented fully oriented. He discussed many of the changes/losses that coincided with his retirement 11 years prior. He and his wife confirmed that since retirement he has lost his patience and is easily frustrated. He reported mostly he just got on with his life and never really came to grips with all the changes he was going through. The examiner reiterated the plan for the Veteran to get dressed when he gets up, stay up and participate in daily activities with his wife. He was advised to follow up in one month. The Veteran attended a subsequent appointment in July 2016. He presented fully oriented. He admitted to still sleeping excessively and had not managed the task of dressing every morning. He endorsed ongoing irritability related to his health challenges. The examiner reviewed the importance of getting out of bed in the morning, dressing, and remaining active to help counteract effects of depression in his life. The examiner advised the Veteran to follow up in one month. At his subsequent August 2016 appointment, he endorsed ongoing issues with dreams and nightmares, but was noted to have a stable mood. He reported that his dog was part of his support system and reported that he continued to be active with his grandkids, although most of his activities revolved around his health appointments. He also endorsed ongoing lack of motivation to get going in the morning unless he had an appointment. The examiner discussed strategies with the Veteran to stay active and advised him to follow up in one month. The Veteran returned to supportive and cognitive based psychotherapy in October 2016. His mood was stable, and he reported some improvement to getting going in the morning, although he admitted it remained a struggle. The examiner noted that the Veteran continued to keep most of his feelings inside but was able to admit that his wife is a safe person to share with. He was advised to follow up in one month. The Veteran attended a psychiatry appointment in May 2017. He reported going to the grocery store with his wife. He also reported ongoing symptoms of excessive sleeping, and lack of interest in people and his grandkids. He denied any suicidal ideations or hallucinations. A mental status examination continued to note good appetite and sleep, fair mood and good concentration. It was noted that he had poor recent memory. He was advised to follow up in six months or sooner if necessary. The Veteran was afforded another VA Examination in September 2017 where he reported that a normal day consisted of watching television and letting the dog outside. He reported attending church but denied doing any volunteer work or chores, due to difficulty walking. The examiner noted that the Veteran’s most recent psychiatry note was dated May 2017. The Veteran’s wife reported that he stopped going to therapy because of the distance and transportation problems. He reported that he continued to take his PTSD medication daily. He also reported that he used to be irritable and got into arguments with others but now avoids people, so it is no longer an issue. His wife reported that he sits at a computer by the window checking out everyone that walks past the house. She also reported that he leaves church quickly to avoid having conversations with people and he is startled by loud sounds. He admitted that he leaves the room when there are a lot of people making loud noise. He denied problems with concentration but endorsed sleep disturbance due in part to nightmares. Nonetheless, he reported getting about eight hours of sleep at night and during the day. He described his mood as tired and kind of depressed but endorsed that he was able to feel positive emotions and emotionally connected to loved ones. He reported no interest in activities he used to enjoy, problems trusting others, and that he did not want to interact with people. The examiner noted that the Veteran’s PTSD symptoms included depressed mood, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. He further noted that the Veteran exhibited fair insight into symptoms and the impact they have on his day to day functioning, had intact judgment and remained competent to manage his own finances. In November 2017 the Veteran reported doing about the same. He reported taking naps during the daytime and sleeping when he feels bored. He also admitted to having limited interaction with his daughter and grandson who lived with him. Mental status exam noted good appetite and sleep, normal mood, normal affect and no suicidal ideations or hallucinations. His wife reported that he gets irritated sometimes. He was advised to continue with current treatment and to follow up if symptoms get worse. The Veteran was afforded another VA examination in November 2020. The examiner documented reports that he avoided crowds, fireworks, and unexpected loud noises. He also reported that his irritability and exaggerated startle response had decreased in frequency and severity but his problems with concentration had increased. The examiner summarized the Veteran’s impairment as occupational and social impairment with reduced reliability and productivity. He lived with his wife and spent a majority of the time watching television. He reported that he had friends but his wife stated that he did not have any friends. He reported that he spends time with his children and grandchildren, however, his wife reported that he did not like having company at their house and that he only left home to attend medical appointments and to go to church. He also reported that he met with a VA psychiatrist once every three months. His wife also reported that he would see flying things around his head that bite him and that he used a fly swatter to swat at them. He reported that there were invisible things that bit him every day and that he would itch from invisible gnats. He clarified that he did not actually see the gnats bite him. His wife also clarified that she does not see any welts or marks but she does see the Veteran itch his skin. The examiner noted that the Veteran’s symptoms included anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or work like setting. The examiner observed that the Veteran was casually dressed and appropriately groomed. He was in a good mood and his affect was appropriate to thought of content. He was oriented to person, place, and time. His speech was regular in rhythm, rate, and tone. His thinking was logical, linear, and goal oriented. No unusual behaviors or mannerisms were noted. He denied manic episodes, panic attacks, depression, delusions, and obsessions and rituals. In a November 2020 addendum opinion to the VA examination report completed that same month, the examiner who conducted this examination concluded that it was not possible to determine if the skin sensations reported by the Veteran represented a tactile hallucination or are attributable to another etiology. The examiner explained that the May 2017 primary care physician outpatient notes document that the Veteran had abnormal skin sensations. The examiner also reasoned that he did not report any psychotic symptoms during the examination and that he reported using a cream on his skin to reduce the sensations of itching. The examiner noted that the Veteran’s medical history documented a diagnosis of eczema. The Board finds that, taken together, the frequency, severity and duration of the Veteran’s service-connected PTSD symptoms does not establish entitlement to an disability rating greater than 50 percent. The next highest rating of 70 percent contemplates evidence of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. § 4.130, DC 9411 (2019). While the Veteran has reported depressed mood and been noted to have a flat affect, he also frequently has a stable mood. He consistently reports activities such as watching television. Further, although he repeatedly admits to a tendency to self-isolate and avoid interaction with others, the Board notes that he has been married for over 35 years and reports that his marriage is alright. He also has admitted that his wife is a safe person to confide in about his problems. He attends church service, has gone to the grocery store with his wife, and traveled to Chicago to visit his daughter during the appeal period. In the November 2020 VA examination, he reported that he had friends and enjoyed spending time with his children and grandchildren. The Board acknowledges that he has reported some difficulty getting out of the bed and getting started in the morning. Treatment records also noted that he had some difficulty with hygiene. He has been able to attend doctor’s appointments where he is frequently noted to be neat and well groomed. Although he and his wife have reported that he has had trouble dressing in the morning, the Board notes that this problem does not rise to the level of occupational and social impairment with deficiencies in most areas as required by the 70 percent rating. Id. Specifically, although the Veteran struggles with dressing appropriately in the morning, the Board notes that there is no evidence to suggest that he does not dress or groom appropriately when he does leave the house. As the Board noted above, he is able to attend appointments where he is noted to be neat and well groomed. The Board notes that, while he has missed some doctor appointments, the infrequency of attending these appointments has not rising to the level required by the 70 percent rating because he still is able to attend most of his appointments and examinations. Id. There is nothing in the evidence to suggest that he has missed appointments consistently and frequently to warrant a 70 percent rating. Id. Further, he reports that a part of his daily routine is caring for the family dog, who he lets outside in the morning. Moreover, while he reports frequent feelings of sleepiness and sleep disturbance due to nightmares, he has admitted to getting about eight hours of sleep a day. He also consistently had normal concentration and denied suicidal ideations and hallucinations. With regards to whether he suffers from hallucinations, the Board notes that he and his wife have reported that he swats invisible bugs around him that make him itch. Both of them have reported consistently that they do not see the bugs or any marks but that they leave his skin itching. In the November 2020 addendum opinion, the examiner concluded that it was not possible to determine if the skin sensations reported by the Veteran represented a tactile hallucination or are attributable to another etiology. The examiner did note that he had a diagnosis of eczema. The Board notes that the Veteran’s wife reported that he would see flying things around him but he reported that he was unable to see any bugs. He also noted that, even though there were no bite marks, he would always be left scratching his skin. Regardless of whether the itching is from potential tactile hallucinations or from his previously diagnosed eczema, the Board finds that such possible hallucination does not rise to the level of persistent hallucinations to render him totally occupationally and socially impaired as required by the 100 percent rating. Id. Based on the evidence of record, the Board finds that the frequency and severity of the Veteran’s symptoms, to include some difficulty with hygiene, do not more nearly approximately occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood to warrant a rating of 70 percent for the service-connected PTSD. Id. The evidence of record also does not establish a total occupational and social disability to warrant a rating of 100 percent for the service-connected PTSD. Id.; see also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran finally has not identified or submitted any evidence demonstrating his entitlement toa disability rating greater than 50 percent for his service-connected PTSD. Thus, the Board finds that the criteria for a disability rating greater than 50 percent for PTSD have not been met. 2. Entitlement to a TDIU Service connection currently is in effect for PTSD and tinnitus, with a combined total rating of 60 percent. Accordingly, the Veteran does not meet schedular criteria for TDIU. See 38 C.F.R. § 4.16(a) (2019). Vocationally, the Veteran graduated from high school in 1961 and also attended trade school. He has been employed as a sheet metal worker, material handler, and a television/VCR repairman. He also was employed with a railroad as a signal man from 1987 through 2004 at which time he retired. He has not been employed since 2004. Treatment records do not note any functional limitations because of the service-connected tinnitus. He described his tinnitus as moderate, bilateral, constant tonal tinnitus that is an annoyance to him. In contrast, the record shows some functional limitations as a result of his service-connected PTSD. As discussed above, he frequently was noted to have depressed mood and reported some difficulty getting out of the bed in the morning. Further, he has reported that he tends to avoid people, has some sleep disturbance, and has endorsed occasional short-term memory problems as a result of nightmares. In the September 2017 VA examination, the examiner opined that the Veteran’s PTSD may affect his work in environments where he had to interact socially with others. He also reported that he is sleepy during the day which, the examiner opined, could be related to sleep problems associated with his PTSD. Thus, the examiner opined that in a work environment he would be less productive due to his feelings of tiredness. The examiner further noted that it also appears that he had less interest and motivation to complete activities and this is most likely part of his PTSD related depressed mood. He noted that the Veteran reported that his wife completes the chores around the house because he does not have the interest in completing these activities and because of his difficulties walking. Thus, the examiner opined, the Veteran’s PTSD could lead to less interest in activities in a work setting and that this would also lead to low productivity. In the November 2020 VA examination, the examiner commented that individuals with PTSD may be quick tempered and may engage in aggressive verbal and physical behavior with little or no provocation, and this may cause difficulty working with others in an occupational setting. The examiner then noted that the Veteran’s irritability will more likely than not cause difficulties working with other people. The examiner also noted that his difficulties with concentration, fatigue due to sleep disturbances, and mild memory loss are more likely than not to cause problems with learning and completing job tasks. The Board notes that the Veteran’s difficulty walking is not due to PTSD but instead related to physical symptoms for which he is not service connected. In making a decision concerning entitlement to a TDIU, only the Veteran’s service-connected disabilities are considered. He has worked as a sheet metal worker, material handler, television and VCR repairman, and a railroad signal man. Notably, he had worked as a railroad signal man from 1987 and 2004. The Board notes that nothing in the medical evidence suggests that he would be precluded from returning to a similar job due to his PTSD or tinnitus. While the September 2017 and November examiners suggest that he would have reduced productivity and cannot work in an environment where he has to interact socially with others, it does not establish that he would be unable to work. It only shows that he may need to work in an environment that does not require social interaction and has low to no production standards. Moreover, notwithstanding his symptoms and the examiner’s opinion, he attends church, visited his daughter in Chicago, has a good relationship with his brother, has remained married for over 35 years, likes to spend time with his children and grandchildren, and has some friends who call him occasionally. All of this self-reporting by the Veteran suggests that he is able to have some interaction with others. He reports that his daily routine includes caring for the family dog, whom he lets outside in the morning. He is able to attend doctor’s appointments. This suggests that he can maintain a routine and schedule. Although the November 2020 VA examiner noted that the Veteran’s difficulties with concentration, fatigue due to sleep disturbances, and mild memory loss are more than likely to cause problems with learning and completing job tasks, the Board notes that the examiner provided a conclusory assessment in general terms and did not specify exactly what level of tasks he would have trouble completing. As noted above, he was able to perform tasks such as attending appointments and caring for his dog. There is nothing in the medical evidence to suggest that he has trouble learning or performing certain tasks due to his PTSD. Although he may have motivational difficulties, he still is able to attend most of his medical appointments. Finally, he frequently is noted as alert, oriented, cooperative, well-groomed, and having good concentration, intact memory and judgment. This suggests that he retains the orientation to complete a task. Taken together, the record evidence as a whole does not suggest that the Veteran’s service-connected disability symptoms preclude him from work. It suggests instead that he retains the ability to be in an environment with others (albeit with little to no social interaction), complete a routine, and remain alert, oriented, and concentrate, all of which support an ability to work. Accordingly, as the Veteran’s symptoms do not render him unable to maintain substantial gainful employment, the Board finds that the criteria for entitlement to a TDIU have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.