Citation Nr: 21032626 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-42 988 DATE: May 27, 2021 ORDER Entitlement to service connection for hepatitis C has been withdrawn. Entitlement to service connection for kidney problems (diagnosed as chronic kidney disease) has been withdrawn. Entitlement to an increased rating of 70 percent, but not higher, for service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder in early remission ("psychiatric disability") is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. In the July 2020 Board Hearing, the Veteran indicated that it is his intent to withdraw the appeal for entitlement to service connection for hepatitis C. 2. In the July 2020 Board Hearing, the Veteran indicated that it is his intent to withdraw the appeal for entitlement to service connection for kidney disorder. 3. Resolving all reasonable doubt in favor of the Veteran, throughout the rating period on appeal, the Veteran's psychiatric disability has manifested to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic of depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. 4. The Veteran's service-connected psychiatric disability does not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for hepatitis C have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to service connection for kidney problems (diagnosed as chronic kidney disease) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to an increased rating of 70 percent, but not higher, for service-connected psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 4. The criteria for entitlement to a TDIU due to service-connected disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from June 1972 to June 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified before the undersigned VLJ at a virtual hearing. A transcript of the hearing is of record. As an initial matter, the Board notes that the Veteran has presented evidence indicating that his service-connected psychiatric disability has rendered him unemployable. As a claim for TDIU is part of an increased rating claim when such a claim is expressly raised by the Veteran or reasonable raised by the record, the Board finds that the issue of TDIU has been reasonable raised, and is thus, properly before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection 1. Entitlement to service connection for hepatitis C. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(4). Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 20.204. Here, in the July 2020 Board hearing, the Veteran indicated his desire to withdraw his claim for entitlement to service connection for hepatitis C. See Hearing Transcript, July 2020. Thus, there remain no allegations of error of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to service connection for hepatitis C. 2. Entitlement to service connection for kidney problems (diagnosed as chronic kidney disease). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(4). Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 20.204. Here, in the July 2020 Board hearing, the Veteran indicated his desire to withdraw his claim for entitlement to service connection for kidney problems. See Hearing Transcript, July 2020. Thus, there remain no allegations of error of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to service connection for kidney problems. Increased Rating Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. 3. Entitlement to an increased rating exceeding 50 percent for service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder in early remission ("psychiatric disability"). Service connection for the Veteran's psychiatric disability was awarded in the November 2016 rating decision currently on appeal, with an initial compensable evaluation of 50 percent assigned, effective January 29, 2016. However, the Veteran contends that an initial increased rating of 70 percent is warranted, as he has a noted symptom listed on the criteria for a higher evaluation. As mentioned above, for the entire period under review, the Veteran's PTSD has been rated as 50 percent disabling under the appropriate DC 9411. Under DC 9411, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. A higher 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic of depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. The highest rating of 100 percent 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The list of symptoms under the rating criteria above are meant to be examples of symptoms that would warrant the respective rating, but 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, 442-42 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). After review of the record, the Board finds that an increased rating of 70 percent is warranted throughout the rating period on appeal. Medical treatment records during the appeal period reflect complaints and treatment for the Veteran's psychiatric disability, with symptoms of excessive alcohol use and withdrawal, depression, anxiety, nightmares, flashbacks, poor sleep, poor appetite, exaggerated startle response, isolation, hopelessness, insomnia, low mood, frustration tolerance, some difficulty in maintaining relationships with wife and/or daughters, and intermittent suicidal ideations. In October 2016, the Veteran underwent an initial PTSD VA examination, where the examiner noted the Veteran's symptoms of impaired sleep, hypervigilance, exaggerated startle response, substance use, depressed mood, anxiety, disturbance of motivation and mood, and difficulty in adapting to stressful circumstances (including work or a worklike setting); however, the Veteran denied having any suicidal or homicidal thoughts. He reported that he maintains great relationships with his siblings, wife, daughters, and friends for over 58 years, which have provided a strong support network. The examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. See C&P Exam, October 2016. In lay statements submitted by the Veteran's wife and daughter, they noted that the Veteran experiences sleepless nights, thoughts of suicide, depression, debilitating nightmares, startle response, auditory hallucinations, homelessness, and binge/excessive drinking that affected their family dynamic and relationships and resulted in the Veteran having to go to rehabilitation programs multiple times. See Buddy/Lay Statements, July 2020 and August 2020. During the July 2020 Board Hearing, the Veteran testified that he experiences nightmares, insomnia, depression, periods of irritability, isolation, and road rage. See Hearing Transcript, July 2020. Based on the above, the Board finds that an increased rating of 70 percent, but not higher, is warranted for the Veteran's psychiatric disability during the period on appeal. The weight of evidence of record throughout the appeal period is sufficient to meet the criteria for the next-higher 70 percent rating, as the severity of the Veteran's psychiatric symptoms more closely approximate that of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; which is commensurate of a 70 percent evaluation under DC 9411. The Board notes that the relevant medical evidence of record, to include the VA examination, shows that the Veteran's psychiatric disability, during the relevant period, had manifested with symptoms of such severity, frequency, or duration as to warrant a higher 70 percent rating. Specifically, there is some indications of intermittent suicidal thoughts, irritability, and a notation of a difficulty in adapting to stressful circumstances (including work and worklike setting). Additionally, the Veteran's family have noted his issues with maintaining relationships, thoughts of suicide, auditory hallucinations, and homelessness (indicative of some form of possible hygiene issues). In this regard, the Board notes that the ponderance of the evidence is essentially in favor of the higher 70 percent rating, or at the very least in relative equipoise, and thus, resolving all reasonable doubt in favor of the Veteran, the assignment of a 70 percent rating in this case is warranted. However, the Board further notes that the higher rating of 100 percent is not warranted as the evidence does not reflect the Veteran exhibited 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name causing a total occupational and social impairment. While the Board acknowledges the daughter's assertion that, at some point, the Veteran began to hear voices in his head, this one assertion is not enough to reflect persistency; and is heavily outweighed by the totality of the evidence of record, to include the various medical records and lay statements from the Veteran himself and his wife all of which are silent for any auditory or visual hallucinations. The Board notes that the lay assertions of record have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that they have argued that a higher rating than 70 percent for the Veteran's psychiatric disability is warranted, these assertions are outweighed by more probative evidence provided by the medical evidence of record, to include the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay statements do not provide any basis upon which to assign any higher rating. Therefore, the Board concludes, based on consideration of the medical and lay evidence, an increased rating of 70 percent, but not higher, for the Veteran's service-connected PTSD is warranted; and the claim is granted. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. The Veteran contends that he is unemployable due to his service-connected psychiatric disability. TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation resulting from a single service-connected disability ratable at 60 percent or more, or as a result of 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). In determining whether unemployability exists due to a service-connected disability or disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience; however, age and impairment caused by nonservice-connected disabilities are not factors for consideration. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of TDIU. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor(s) that places the Veteran in a different category than other veterans with equal ratings of disability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Due to the grant in this Board decision, the Veteran's only service-connected disability of a psychiatric disorder is currently evaluated at 70 percent from January 29, 2016. Based on this, the Veteran has a combined schedular rating of 70 percent; and therefore, meets the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). The Veteran asserts that he last worked in 2016, as a laparoscopic/robotic coordinator in an operating room. However, a review of his recent VA medical treatment records reveals that the Veteran is currently working remotely in biotech and likes his job. Additionally, the record reveals the Veteran has a high school diploma, with some college education in business administration. Medical treatment records during the appeal period reflect continuous complaints of and treatment for his service-connected psychiatric disability. Lay statements submitted note the Veteran is unable to keep a job due to his psychiatric disability. In the October 2016 VA examination to assess the psychiatric disability, the examiner noted that the Veteran has no current issues with work performance, but struggled previously with reliability due to missing a lot of work for issues with sleeping, anxiety, depression, and alcohol use. The examiner concluded that the Veteran's symptoms rose to the level of occupational and social impairment with reduced reliability and productivity. See C&P Exam, October 2016. While the Board acknowledges the functional impairment resulting from the Veteran's service-connected disability noted above, the Board finds that the evidence of record, in its totality, does not demonstrate that said disability resulted in the Veteran's complete inability to secure and follow gainful employment. Based on the above, the Board finds insufficient evidence to substantiate a reasonable possibility that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected psychiatric disability during any period on appeal, and thus, TDIU is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim is denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, 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.