Citation Nr: 21030232 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-24 919 DATE: May 18, 2021 ORDER A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to September 4, 2020, is denied. A rating in excess of 70 percent for PTSD since September 4, 2020, is denied. Service connection for chloracne is denied. Service connection for a sleep disorder is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran had active service from July 1969 to July 1973. 2. Prior to September 4, 2020, PTSD was manifested by subjective complaints of sleep disturbances, nightmares, anxiety, and irritability; objective findings included depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. 3. Since September 4, 2020, PTSD has been manifested by subjective complaints of nightmares avoidance of crowds, and disturbances in mood, motivation, sleep, and energy; total social and occupational impairment has not been shown. 4. A current diagnosis of chloracne has not been shown. 5. A sleep disorder was not shown in service, is not causally or etiologically related to service, and was not caused by or permanently worsened in severity by a service-connected disability. 6. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD prior to September 4, 2020, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, (Diagnostic Code) DC 9411 (2020). 2. The criteria for a rating in excess of 70 percent for PTSD since September 4, 2020, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2020). 3. Chloracne was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 4. A sleep disorder was not incurred in service and is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2020). 5. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1110, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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), and an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula for 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). PTSD Prior to September 4, 2020 Prior to September 4, 2020, PTSD was rated at 50 percent disabling. Turning to the medical evidence, a November 2012 VA examiner indicated occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. Symptoms included depressed mood, anxiety, chronic sleep impairment, and inability to maintain and establish effective relationships. June and August 2014 VA clinical psychiatric treatment records reflected symptoms of intrusive thoughts of combat trauma, nightmares, difficulty sleeping, anger, irritability, anhedonia, difficulty concentrating, and hypervigilance. There was no indication of psychosis, delusions, or paranoia and judgment and insight were intact. Next, a June 2015 psychologist reported occupational and social impairment with reduced reliability and productivity due to symptoms of PTSD, which included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing effective work and social relationships, and difficulty adapting to stressful circumstances at work. The Veteran stated that he required the use of alcohol to help him sleep. He also stated that he had no friends and spent his time alone unless he was with his brother. Further, he had no romantic relationship and had no contact with his biological daughter or adopted son. Next, a May 2017 psychologist noted symptoms of PTSD including difficulty thinking or concentrating, recurrent or intrusive thoughts, easy distractibility, and sleep disturbances. The psychologist reported that these symptoms would cause the Veteran to be unable to meet competitive employment standards in several areas, including the ability to maintain attention for two hour segments, and the ability to maintain regular attendance and punctuality, the ability to perform at a consistent pace without breaks. In addition, treatment notes throughout 2017, including from the May 2017 psychiatry session, reflected appropriate grooming, hygiene, and attire. Further, speech was spontaneous with normal rate and flow and thoughts were logical and goal directed. The examiner noted that affect was appropriate and well-modulated and there was no evidence of psychotic content. Memory, attention, and cognition appeared to be within normal limits and insight and judgment were intact. There was no indication of suicidal or homicidal intent. Next, clinical treatment records from October 2019 showed continued complaints of nightmares. However, PTSD and nightmares were noted as stable with the use of medication. The Veteran denied suicidal and homicidal intent at this time. Accordingly, the medical evidence does not support a rating in excess of 50 percent for the relevant period. The evidence shows a degree of social and occupational impairment due to symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective relationships, and difficulty adapting to stressful circumstances. The Veteran's speech was normal, and judgment and insight were intact. The evidence did not show suicidal intent, obsessional rituals, near continuous panic attacks, spatial disorientation, impaired impulse control, or neglect of personal hygiene as contemplated by the rating criteria. As such, the medical evidence more closely resembles the criteria for a 50 percent rating and does not support a rating of 70 percent for PTSD. PTSD Since September 4, 2020 The RO assigned an increased rating of 70 percent for PTSD effective September 4, 2020, the date of the most recent VA examination. Turning to the medical evidence, the Veteran complained of nightmares, sleep disturbances, avoidance of crowds, and decreased interest and motivation in September 2020. The examiner noted occupational and social impairment with reduced reliability and productivity due to symptoms of PTSD. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. As to behavioral observations, the examiner noted that the Veteran had adequate grooming and hygiene and was alert and oriented to person, place, time, and situation. His speech was within normal limits and he showed goal directed thought processes and normal thought content. Further, his insight and judgment were intact, and he showed normal concentration, attention, impulse control, and intelligence. He denied suicidal and homicidal ideation or intent. There are no further medical records for the relevant period. Accordingly, the medical evidence does not support a rating in excess of 70 percent for PTSD. The evidence shows PTSD has been manifested primarily by chronic sleep impairment, anxiety, hypervigilance, disturbances of motivation and mood, and social and occupational impairment. While the symptoms listed in the rating criteria are not meant to be a checklist, the medical evidence does not show 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Accordingly, the medical evidence does not support a rating of 100 percent for PTSD. Service Connection Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Chloracne A current diagnosis of chloracne has not been shown. In compliance with the Board remand, the Veteran was afforded a VA skin disorder examination in September 2020. The VA examiner noted a diagnosis of basal cell carcinoma, a disability for which service connection has been established, but specifically ruled out a diagnosis of chloracne. Further, there are no clinical treatment records which show a diagnosis of chloracne or any skin disorder aside from basal cell carcinoma. Accordingly, the first element of service connection has not been met and service connection is not warranted under any theory of entitlement. Sleep Disorder A February 2016 private treatment record reflected diagnoses of obstructive sleep apnea and hypersomnia. As such, a current sleep disorder has been shown and the first element of service connection has been met. As to in-service incurrence, the service treatment records (STRs) do not reflect complaints of or treatment for a sleep disorder during service. Importantly, the May 1973 separation examination did not indicate any sleep disorders and the Veteran specifically denied frequent trouble sleeping. Accordingly, the medical evidence does not support the in-service incurrence of a sleep disorder. Next, the Veteran's main contention is that a sleep disorder is secondary to service-connected disabilities. As he has been diagnosed with a current sleep disorder and is service connected for multiple disabilities, including PTSD and gastroesophageal reflux disease (GERD), the first two elements of secondary service connection have been met. Regarding a nexus under the theory of secondary service connection, a September 2020 VA psychologist found it at least as likely as not that a sleep disorder was aggravated beyond its natural progression by service-connected PTSD, hearing loss, and tinnitus. She reflected that PTSD symptoms led to disturbances in mood, motivation, sleep, and energy. Further, hearing loss and tinnitus contributed to sleep disorders as they disrupted his ability to sleep during the day and night. Weighing against the claim, a December 2020 physician found it less likely than not that a sleep disorder was proximately due to or the result of a service-connected condition. She noted that hypersomnia is daytime fatigue or sleepiness often secondary to a primary sleep disorder. Further, she found that at the time of diagnosis, the Veteran's obesity put him at elevated risk for sleep apnea. She also reflected that there is no clear causal factor that PTSD causes sleep apnea and no medical literature supports hearing loss or tinnitus causing tinnitus. As such, she concluded that sleep apnea and hypersomnia were more likely due to obesity than a service-connected condition and that a sleep disorder was less likely than not caused secondary to PTSD, alcohol use, tinnitus, or hearing loss. Next, the physician found it less likely than not that a sleep disorder was aggravated beyond its natural progression by a service-connected disability. The physician noted that PTSD, hearing loss, and tinnitus do not have a pathophysiologic mechanism by which they aggravate sleep apnea. Further, the examiner found that hypersomnia is secondary to sleep apnea and the diagnosed insomnia disorder (nightmares) associated with PTSD. As such, it was stated that hypersomnia was a symptom of sleep apnea in this case and the Veteran's currently service-connected PTSD already encompassed his insomnia. Therefore, the physician found that hypersomnia was less likely than not aggravated by PTSD, hearing loss, or tinnitus. Accordingly, the medical evidence weighs against the claim. The December 2020 physician's opinion is afforded more probative value than the opinion of the September 2020 examiner because it is supported by medical literature and a more thorough rationale. In addition, the September 2020 examiner's opinion focused on the sleep impairment, lack of motivation and energy, and other symptoms that are already contemplated in the Veteran's assigned rating for service-connected PTSD. Therefore, the medical evidence does not support service connection for a sleep disorder. The Board has considered the Veteran's lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. Considering the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Entitlement to TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service connected for PTSD at a rating of 70 percent, basal cell carcinoma at 10 percent, tinnitus at 10 percent, GERD at 10 percent, bilateral hearing loss at a noncompensable rating, and erectile dysfunction at a noncompensable rating. His combined disability rating is currently, 80 percent, and it has been throughout the pendency of the appeal period for consideration. Accordingly, he meets the schedular criteria for TDIU throughout the entirety of the appeal period. In his November 2014 application for TDIU, the Veteran reported that he had completed a high school education. Previous employment included a truck driver, realtor, paramedic, and fireman. He also indicated that he was self-employed as an insurance salesman. While he wrote that he last worked full-time in February 2012, he was presently still self-employed in the insurance industry. A November 2012 VA examiner indicated occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. Symptoms included depressed mood, anxiety, chronic sleep impairment, and inability to maintain and establish effective relationships. Next, a June 2015 psychologist reported occupational and social impairment with reduced reliability and productivity due to symptoms of PTSD, which included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing effective work and social relationships, and difficulty adapting to stressful circumstances at work. The examiner noted that functional impairment would include frustration with other employees and supervisors, difficulty working a consistent 8-hour day or 40-hour work week, difficulty responding to change, lack of stamina, and inability to concentrate. In addition, a February 2017 private physician stated that the Veteran's medical conditions would interfere with regular attendance and productivity at work. Specifically, he noted that the Veteran had a chronic, severe, cough which resulted in incontinence. However, the Veteran is not service connected for this disorder. Next, the physician noted that PTSD interfered with consistent functioning. In conclusion, he supported the request for consideration for disability from employment. Next, a May 2017 psychologist noted symptoms of PTSD including difficulty thinking or concentrating, recurrent or intrusive thoughts, easy distractibility, and sleep disturbances. The psychologist reported that these symptoms would cause the Veteran to be unable to meet competitive employment standards in several areas, including the ability to maintain attention for two hour segments, the ability to maintain regular attendance and punctuality, and the ability to perform at a consistent pace without breaks. However, he noted that mental abilities and aptitude needed to perform unskilled work would be unlimited or very good in 6 other areas and limited but satisfactory in 16 other areas. He found that the Veteran would generally have to miss more than four days of work per month due to symptoms of PTSD. Further, a September 2020 VA physician examined the Veteran and found evidence of occupational and social impairment with reduced reliability and productivity due to symptoms of depression, anxiety, panic attacks, sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and difficulty establishing and maintaining effective work relationships. Next, a September 2020 VA examiner found that service-connected basal cell carcinoma had a functional impact on the Veteran's ability to work. Specifically, he did not want to go out in public because of his scars and he did not want to take the risk of being in the sun. Accordingly, the medical evidence does not support a finding of unemployability. While service-connected disabilities, particularly PTSD, affect the Veteran's employability, these symptoms do not render him unable to secure or follow substantially gainful employment. Specifically, multiple examiners found that the Veteran would have difficulty maintaining focus and concentration needed to stay productive at work. They also noted it would be difficult to complete an 8-hour workday without breaks. However, multiple examiners found that the Veteran still maintained the ability to perform gainful employment despite symptoms of PTSD and no examiner has opined that service-connected disabilities resulted in total social and occupational impairment. In this regard, the weight of the medical evidence does not show total occupational or social impairment due to PTSD. The Board has considered the lay statements and testimony of the Veteran regarding his capacity to work throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran's employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran's service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kokolas, 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.