Citation Nr: 21030982 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-07 052 DATE: May 20, 2021 ORDER Entitlement to an evaluation in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, depression and anxiety for the period prior to November 29, 2018 is denied. Entitlement to an evaluation in excess of 70 percent for an acquired psychiatric disorder, to include PTSD, depression and anxiety for the period from November 29, 2018 is denied. Entitlement to a total disability rating based on unemployability is granted. Entitlement to service connection for traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. For the period prior to November 28, 2018, the severity, frequency, and duration of the Veteran's acquired psychiatric disorder, to include PTSD, depression and anxiety, did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. For the period from November 29, 2018 the severity, frequency, and duration of the Veteran's acquired psychiatric disorder, to include PTSD, depression and anxiety, did not more closely approximate total occupational and social impairment. 3. The Veteran's service-connected disabilities combine to be of such severity as to preclude him from securing or following a substantially gainful occupation. 4. Though head injuries in service and a current TBI disability have been conceded, the preponderance of the evidence weighs against a finding that the Veteran has any current TBI residuals that are etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, depression and anxiety, for the period prior to November 29, 2018 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for a disability rating in excess of 70 percent for an acquired psychiatric disorder, to include PTSD, depression and anxiety, for the period from November 29, 2018 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2019). 4. The criteria for service connection for residuals of a TBI have not been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2003 to December 2009. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2019. A transcript of that hearing has been associated with the claims file. This matter was previously remanded in November 2019 for further development. 1. Entitlement to an evaluation in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, depression and anxiety for the period prior to November 29, 2018 2. Entitlement to an evaluation in excess of 70 percent for an acquired psychiatric disorder, to include PTSD, depression and anxiety for the period from November 29, 2018 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. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran contends that his acquired psychiatric disability, including PTSD, depression and anxiety, warrants an evaluation in excess of 50 percent for the period prior to November 29, 2018 and in excess of 70 percent thereafter. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under the General Formula, a 50 percent rating is assigned when 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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 maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Veteran submitted a private disability benefits questionnaire completed by his therapist in December 2013. His diagnoses were noted to be PTSD and alcohol dependence, as well as TBI (addressed separately herein). The Veteran's acquired psychiatric disability was assessed to be productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. His symptoms were noted to include depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impaired judgment; gross impairment in thought processes or communications; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; and disorientation to time or place. In addition, the therapist noted that the Veteran has conversations during sleep, and wakes up disoriented, feeling like he is back in a combat zone. The Veteran was afforded a VA examination in July 2014. His diagnosis was noted to include PTSD, though a TBI diagnosis was acknowledged. The examiner indicated that it would be impossible to differentiate between symptoms attributable to TBI and those attributable to PTSD, explaining that there is overlap in many symptoms between these two conditions. The Veteran's symptoms were noted to be productive of 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. Symptoms were noted to include depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was appropriately dressed and groomed, without unusual behaviors, well engaged with the interview, though with a sad affect. Also noted were the Veteran's reports of avoiding going home; avoiding stressful situations and memories; having emotional reactions; blaming himself; angry outbursts; forgetting things such as names; having no local friends; checking locks; avoiding interactions with people even while at work. The Veteran denied thoughts of suicide; denied having difficulty managing his work stress; reported he pays his bills as needed; and that he had signed up for the police academy. The Veteran was afforded another VA examination in September 2017. The Board notes that this examination was found to be inadequate, as it denies the Veteran had a diagnosis of PTSD, and does not reflect accurate or complete review of the Veteran's record. The examiner issued an addendum acknowledging the Veteran's PTSD diagnosis of record, but noted that he did not endorse sufficient symptoms of PTSD or trauma related disorder, and the examiner was unable to describe such symptoms when asked. In fact, review of this examiner's findings shows that out of the 8 diagnostic criteria for PTSD, she found that only one was met contrary to both prior and subsequent examination findings. As such, this examination is inadequate for adjudication purposes and its findings are not considered. The Veteran was afforded another VA examination in March 2019. The Veteran was confirmed to have a PTSD diagnosis, as well as alcohol use disorder in early remission, and major depressive disorder. A diagnosis of TBI was also acknowledged, and it was noted that differentiation of symptoms is impossible due to significant similarities and overlap. The Veteran's acquired psychiatric disability was assessed to be productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. It was noted that the Veteran was no longer in a relationship with his fiancée, but rather, in another relationship with his girlfriend of three years, and has had two children in the previous few years. The Veteran reported he completed his police academy training, and enrolled in a special school for canine training, from which he was on medical leave at the time. He reported to be struggling with anxiety, specifically in crowded places, and though he enjoys going out with his girlfriend and is typically friendly with classmates, he experiences difficulty with trust. His acquired psychiatric disability was noted to produce symptoms including depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; and inability to establish and maintain effective relationships. Behavioral observations included that the Veteran had appropriate affect; intact cognition, impulse control and judgment; he maintained eye contact; and had no obvious thought process, content or communication impairment. Finally, the examiner noted that the Veteran is homeless, and does not appear to pose a threat to himself or others. The Veteran was afforded a hearing before the undersigned in February 2019. He testified that he had had multiple hospitalizations due to PTSD and alcohol use disorder. He indicated he was violent against his fiancée, without having a memory of what he did. In terms of his PTSD, he testified he avoids large crowds, driving and shopping. He stated he has not been able to work over the previous five years, and his current position as a dog trainer is unpaid and he sees it as a form of therapy rather than a job. The Veteran then testified that his inability to work is caused more by his migraines than his PTSD symptoms, though his PTSD plays a role. The VA medical record does not reflect multiple hospitalizations for an acquired psychiatric disability. However, reported symptoms and regular treatment are consistent with those reflected in VA examination findings. For the period prior to November 28, 2018, VA and private treatment records, the December 2013 private disability benefits questionnaire, the July 2014 VA examination, and the Veteran's lay statements show that the Veteran's acquired psychiatric disability was manifested by symptoms associated with a 30 percent rating (depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events); symptoms associated with a 50 percent rating (impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships), symptoms associated with a 70 percent rating (difficulty in adapting to stressful circumstances, including work or a work-like setting), and symptoms associated with a 100 percent disability rating (gross impairment in thought processes and communication and disorientation to time or place). The Veteran denied suicidal ideation both during the December 2013 private evaluation as well as during the July 2014 VA examination. Upon consideration of the above, the Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. While the Veteran did experience some symptoms contemplated by 70 and 100 percent ratings, the evidence overall does not demonstrate the level of impairment associated with a 70 percent or higher rating. To wit, during this appellate period, the record simply does not reflect symptoms such as suicidal ideation, obsessional rituals, intermittently illogical speech, near-continuous panic, neglect of personal hygiene. In fact, the symptoms of gross impairment in thought processes and communication, and disorientation to time or place reported by the December 2013 private provider are tempered by the same provider's reports that the Veteran has been able to obtain part time employment, and contradicted by the Veteran's own reports during the July 2014 VA examination that he was working full time as a harbor master for the previous two years, as well as his own reports that he did fine on tests at university. There is also no indication in the record that the Veteran is unable to manage his own financial affairs. The Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. In short, the evidence supports a finding that the Veteran's acquired psychiatric disability warrants a 50 percent rating for the period prior to November 28, 2018. The record shows that the Veteran had a productive work history. There is no indication that his psychiatric disorder had any negative effect on his ability to work beyond that envisioned by the 50 percent rating. He was also shown to enjoy a home and family life, including the purchase of a home, in which he lived with his fiancée and four daughters. This Board finds that this evidence weighs against the claim for an increased rating in excess of 50 percent for the psychiatric disability. The Board thus finds that the Veteran's symptoms as described above are consistent with the currently assigned 50 percent disability rating and do not meet the criteria for a higher rating prior to November 28, 2018. To this extent, the claim is denied. For the period from October 28, 2018, the Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran denied any active intent, or a plan involving self-harm in existing treatment records, and during the March 2019 VA examination. The examiner stated clearly that the Veteran poses no threat of danger or injury to himself or others. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating on and after November 28, 2018. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The October 2019 VA examination indicates that the Veteran experienced depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; and inability to establish and maintain effective relationships. The Veteran simply did not experience symptoms contemplated by a 100 percent rating. In fact, though the Veteran is reported to experience inability to establish and maintain work and social relationships, the March 2019 VA examiner also indicated that the Veteran has an active relationship of three years with his girlfriend, has had two children in recent years, and regularly speaks to his family in another state. Furthermore, while the VA examiner indicated he reported being on medical leave from canine school, VA treatment records show that the Veteran completed said school. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 percent or higher rating prior to November 28, 2018, or that required for a 100 percent rating thereafter. As noted above, total social and occupational impairment has simply not been demonstrated at any time during the period in question. The appeal must be denied. 3. Entitlement to a total disability rating based on unemployability (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 totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). A request for TDIU is not a separate claim for benefits, but it is instead an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part of the claim for an increased rating is whether a TDIU as a result of that disability is warranted. Id. at 455. If a sufficient rating is present, then it must be shown that it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disability. See 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, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Veteran was rated 50 percent for his acquired psychiatric disability prior to November 29, 2018, and 70 percent thereafter. He has also been rated 10 percent for left and right patellofemoral pain syndrome respectively, 10 percent for tinnitus, and has a noncompensable disability rating for a testicular condition throughout the appeal period. In addition, he has been rated at 30 percent for migraines, 20 percent for degenerative arthritis of the spine, and 10 percent for left and right foot numbness respectively, from November 29, 2018. His overall rating was 70 percent prior to November 29, 2018, and 90 percent thereafter. Thus, he meets the schedular criteria of 38 C.F.R. § 4.16(a) throughout the period on appeal. The issue is thus whether his disabilities have precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board first acknowledges that on the Form 21-8940 received in November 2017, the Veteran indicated it is his PTSD symptoms which preclude substantial gainful employment. However, the Veteran also indicated during his hearing before the undersigned in February 2019 that it is a combination of his PTSD with other disabilities, including migraines, which impacts his ability to work. Though the March 2019 VA examination did not find that the PTSD was productive of total occupational and social impairment, the examiner did endorse severe symptomatology productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In addition, the Veteran was afforded migraine and spine examinations in April 2019. The migraine examiner noted symptoms of pulsating or throbbing head pain worsening with physical activity, nausea, vomiting, sensitivity to light and sound, changes in vision and sensory changes. In fact, the Veteran was assessed to have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner clearly stated that the Veteran's headaches impact his ability to work, including difficulty working and concentrating. The spine examiner also assessed that the Veteran's lumbar spine disability impacts his ability to work, including difficulty with bending, lifting and carrying objects. The Board also notes the Veteran's additional orthopedic and audiological disabilities, productive of impactful symptomatology. The Board further acknowledges the Veteran's own statements of record, including his testimony that he has not been able to work full time, and that even his part time work with dog training is not compensated, and used as a method for self-therapy. In light of the Veteran's functional limitations, and giving him the benefit of the doubt, the Board finds that his service-connected PTSD, orthopedic, and audiological disabilities, together, combine to render him unable to obtain and maintain any form of substantially gainful employment. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for traumatic brain injury (TBI) is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In its November 2019 remand, the Board found that the Veteran had an in-service event, including multiple injuries to the head. The Board also acknowledges that the Veteran has a current diagnosis of a TBI without residuals, based on February 2014 VA treatment records. Thus, the requirements of Shedden elements (1) and (2) are satisfied. The only question in this case is whether a causal relationship or nexus between said disability and service exists. The Veteran was afforded a VA examination in July 2014 to examine the nature and etiology of his claimed TBI. While the examiner assessed that the Veteran did not have a diagnosis of TBI, symptoms of memory problems, anxiety, and headaches were noted. The examiner provided a negative etiological opinion, finding that the symptoms the Veteran reported were attributable not to any in-service TBI but instead to separately diagnosed (and service-connected) PTSD and headaches. The Veteran was afforded an additional VA examination in September 2020 to examine the nature and etiology of his claimed TBI. The Veteran reported suffering brain injuries during deployment. The examiner acknowledged the Veteran's in-service experiences and documented symptoms of mild memory loss, mildly impaired judgment, occasionally inappropriate social interaction in that he prefers to be alone, and mild impairment of visual spatial orientation, as well as anxiety, irritability, insomnia, and headaches. Significantly, the examiner opined that it is less likely than not that the Veteran has residuals from these in-service injuries and stated that instead the symptoms the Veteran described are related not to any in-service TBI but instead are attributable to his separately service-connected PTSD and migraines. The Board finds that while an in-service injury and a current diagnosis of TBI without residuals are conceded, the preponderance of the evidence is against a finding that the Veteran has a disability that is etiologically related to service. In this regard, the Board notes that the most probative medical evidence of record is the September 2020 VA examination, since it is based on a thorough review of the evidence of record, and contains an opinion supported by an adequate rationale. Indeed, the Board finds persuasive the examiner's rationale that the Veteran's current symptoms are all attributable to separately service-connected disabilities. There is no contrary medical opinion of record. The Board has carefully considered the lay evidence in this case. While the Board finds the Veteran to be competent, a TBI is a condition that is outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). A TBI is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that neurological testing and other specific findings are needed to properly assess and diagnose the disorder. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In sum, the criteria for service connection for residuals of a TBI have not been met. The claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.