Citation Nr: 22018698 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-34 135 DATE: March 30, 2022 ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. For the pendency of the appeal, the Board finds that the Veteran's PTSD was not manifested by 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. 2. For the pendency of the appeal, the Veteran met the schedular criteria for a TDIU, and his service-connected disabilities rendered him unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for a PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.1, 4.7, 4.130. 2. The criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Army from March 1970 to April 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2017 and December 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the increased rating appeal, an August 2017 rating decision awarded the Veteran an increased initial disability rating of 70 percent for PTSD, effective June 16, 2016. As the Veteran is presumed to seek the maximum available benefit for a disability throughout the appeal period, the claim for an increased initial rating remained on appeal and the Board has characterized this issue accordingly herein. AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2021, the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. As to musculoskeletal disabilities, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to an initial disability rating in excess of 70 percent for PTSD. The Veteran's mental health disability is currently rated as 70 percent disabling under DC 9411 for PTSD, effective June 16, 2016. 38 C.F.R. § 4.130. The Veteran contends that his symptoms are productive of a 100 percent rating. Disability ratings for acquired psychiatric disorders are assigned pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under this formula, a 30 percent rating is prescribed when there is evidence 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 routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is prescribed when there is evidence of 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; impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is prescribed when there is evidence of 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 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 work like setting); and inability to establish and maintain effective relationships. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the 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, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In December 2016, the Veteran was provided a VA examination for PTSD. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD under DSM-IV. The Veteran was diagnosed with adjustment reaction with anxiety. The examiner found that the Veteran has been formally diagnosed with a mental condition, but symptoms are not severe enough either to interfere with occupation and social functioning or to require continuous medication. In July 2017 and December 2017, the Veteran obtained a letter from his VA readjustment counseling therapist. The therapist found that the Veteran meets the full criterion for a diagnosis of PTSD in accordance with DSM 5. The therapist found that his PTSD is such that it has produced occupation and social impairment with some deficiencies in most areas including work, social relationships, thinking and mood, due to his symptoms of PTSD. In August 2017, the Veteran was provided an additional VA examination for PTSD. The Veteran was diagnosed with PTSD. The examiner made the following observations and assessments of the Veteran during his interview: alert and fully oriented; thinking was logical and goal-directed; speech was mildly pressured with a slightly loud volume and agitated tone, but it was fluent and at a normal prosody without paraphasic errors; auditory comprehension appeared intact; mood was dysphoric with congruent/constricted affect that was anxious/irritable/sad; cooperative, polite, and engaged; exhibited intact insight and deficit awareness; no hallucinations or other indication of formal thought disorder; reported passive suicidal ideation without intent or plan; denied homicidality; and did not present as an elevated risk to himself or others at the time. For VA rating purposes, the examiner identified the following symptoms of the Veteran's mental health conditions: depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner found that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In September 2019, the Veteran was provided another VA examination for PTSD. The Veteran was diagnosed with PTSD. For VA rating purposes, the examiner identified the following symptoms of the Veteran's PTSD: depressed mood; anxiety; 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; difficulty in adapting to stressful circumstances, including work or a work like setting; and inability to establish and maintain effective relationships. The examiner made the following observations and assessments of the Veteran during his interview: casually dressed and well-groomed; speech was clear and concise, tone abnormally loud (likely due to hearing impairment); alert and fully oriented; thinking was logical and goal-directed; mood was euthymic; cooperative and engaged; intact insight and deficit awareness; no hallucinations or other indications of formal thought disorder; denied suicidality/homicidally; and did not present as a risk. The examiner found that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran obtained an additional letter from his VA readjustment counselor in October 2020. The counselor stated that the Veteran has spent years coping with PTSD, resulting in issues with irritability, anger, and grief/loss, greatly impacting his work and home life. The counselor found that the Veteran clearly meets the full criterion for a diagnosis of PTSD in accordance with DSM5 and should be considered for unemployability related to his PTSD. The Board also notes that while treatment records periodically document the Veteran's complaints and treatment related to his PTSD, nothing in these records during the pendency of the claim show his adverse symptomatology to be markedly worse than what was reported at the above examinations. For the pendency of the appeal, the available record does not show that the Veteran exhibited symptoms of an overall nature, frequency, and severity that most closely approximates the type of occupational and social impairment associated with a 100 percent evaluation under DC 9411. The August 2017 VA examination, September 2019 VA examination, and the letters obtained from his readjustment counselor all indicated that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. This level of social and occupation impairment is productive of a 70 percent disability rating. The Board acknowledges and has considered the statements from the Veteran. In fact, it is these statements that provide the basis, in part, for the evaluations, which indicate a mental condition that will clearly cause the Veteran problems. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. The medical findings outweigh the Veteran's belief that his disability warrants higher disability ratings and provide a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. For the pendency of the appeal, the Board finds that the Veteran's PTSD was not manifested by 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Therefore, the Board finds that the criteria for a higher 100 percent are not met. See 38 C.F.R. § 4.130; Fenderson, supra. Again, these finding do not suggest the Veteran does not have problems. While the Veteran clearly has problems with his psychiatric disorder (this is not in dispute, and will be addressed below), the only question is the degree of the problem based on the medical evidence and the Veteran's statements. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a disability rating in excess of 70 percent for PTSD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating than those found above. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Entitlement to a TDIU due to service-connected disabilities. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, 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 fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Here, the Veteran is currently service connected for the following: PTSD, rated as 70 percent disabling from June 16, 2016. Prostatitis, rated as 40 percent disabling from June 16, 2016. Left ankle disability, rated as 10 percent disabling from June 16, 2016. Tinnitus, rated as 10 percent disabling from July 25, 2016. Hearing loss, right ear, rated as 0 percent disabling from June 16, 2016. From June 16, 2016, the Veteran's combined evaluation for compensation was 90 percent. See 38 C.F.R. § 4.25. Therefore, the Veteran has met the schedular criteria for TDIU for the pendency of the appeal. The Veteran contends he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. He alleges that the collective effect of his service-connected disabilities is the reason he can no longer obtain and maintain a job. The record indicates that the Veteran most recently worked as a machinist, CNC miller, from February 2007 to August 2015. The Veteran's treatment records, including recent VA examinations, support a finding that the Veteran's service-connected disabilities impact the Veteran's ability to perform occupational tasks and significantly impact his ability to work. As discussed above, the Veteran's PTSD manifest occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130. In September 2017, the RO also obtained an additional medical opinion regarding the occupational impact of the Veteran's PTSD. The examiner found that the Veteran's PTSD is in the severe range. The examiner found the following functional effects of the PTSD on his ability to function in an occupational environment: mild impairment of ability to understand, remember, and carry out complex instructions; mild impairment of ability to maintain attention and concentration for task completion; moderate impairment of ability to adapt to routine circumstances in a work or worklike setting; moderate impairment of pace, persistence, productivity, and reliability; and moderate impairment of ability to relate to coworkers, supervisors, or the general public. A September 2016 VA examination for male reproductive system conditions found that acute exacerbations of the Veteran's chronic prostatitis cause acute episodes of generalized illness and is not compatible with occupational environments while symptomatic. A December 2016 VA examination for hearing loss found that the Veteran's hearing loss impacts ordinary conditions of daily life, including ability to work. An August 2017 VA examination for ankle conditions found that the Veteran's left ankle disability impacts his ability to perform occupational tasks. The examiner found that the Veteran may have difficulty with prolonged weight-bearing or stairs. VA regulations provide that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). Considering the aggregate impact of his service-connected disabilities and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record supports that the Veteran was precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. Accordingly, the Veteran meets the criteria for an award of TDIU for the pendency of the appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg 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.