Citation Nr: 1736670	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-11 838	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent prior to September 6, 2016 and in excess of 50 percent from that date for posttraumatic stress disorder (previously rated as adjustment disorder with mixed anxiety and depression).

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Sean Kendall, Attorney


ATTORNEY FOR THE BOARD

T. Wishard, Counsel



INTRODUCTION

The Veteran had active military service from June 1968 to March 1970.  

These matters come before the Board of Veterans' Appeals (Board) from a July December 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Newark, New Jersey.  In an April 2017 rating decision, the RO increased the Veteran's disability from 30 percent to 50 percent.  

In October 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  

These matters were previously before the Board in February 2015 and were remanded for further development.  They have now returned to the Board for further appellate consideration.  As discussed in further detail below, the Board finds that there has been substantial compliance with the directives of its remand.


FINDINGS OF FACT

1.  During the rating period on appeal the Veteran has maintained a positive relationship with his children and grandchild, initiated and maintained a romantic relationship for more than three years, had supportive friendships, worked at substantial gainful employment for a majority the time, and enjoyed recreational activities of golf and basketball.

2.  During the rating period on appeal, the Veteran has reported symptoms of PTSD, to include depressed mood, flashbacks, intrusive memories, exaggerated startle reflexes, anxiety and difficulty with work.

3.  During the rating period on appeal, the Veteran has not attempted suicide, has not had substance abuse problems, has not neglected personal hygiene, has not been disoriented, and has not been a persistent danger to himself or others. 

4.  The most probative evidence of record is against a finding that the Veteran's PTSD has resulted in greater than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks prior to September 2016, and/or greater than occupational and social impairment with reduced reliability and productivity from that date onward.

5.  The Veterans has a Masters degree and more than three decades of employment experience related to his education. 

6.  The Veteran does not meet the scheduler requirements for a TDIU, and the most probative evidence is against a finding that his service-connected disability precludes him from maintaining substantial gainful employment.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 30 percent prior to September 6, 2016 and in excess of 50 percent from that date for posttraumatic stress disorder (previously rated as adjustment disorder with mixed anxiety and depression) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code (DC) 9411 (2016).

2.  The criteria for a total disability rating based on individual unemployability due to service-connected disability (TDIU) have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321 (b), 3.340, 4.16 (2016). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In its February 2015 remand, the Board directed that if the VA examiner opined that the Veteran's service-connected disability did not preclude substantial gainful employment, the RO was to arrange for the record to be forwarded to a VA Vocational Rehabilitation and Employment counselor for review and an advisory opinion.  The claims file includes March 2017 correspondence from F.H. of VA Vocational Rehabilitation and Employment which reflects that a determination of the Veteran's employability cannot be provided without resort to speculation because the Veteran has not applied for services.  Thus, there has been substantial compliance with the Board's remand.  Moreover, the Board finds that there is sufficient evidence of record for which to make a determination as to the Veteran's employability.

The Board also notes that the RO requested that Dr. G. Lewis provide it with treatment/evaluation records for the Veteran but that Dr. Lewis has not complied.  A December 2016 Report of Contact reflects that she was not willing to send records to the RO and that it would need to "go through [the Veteran's] attorney for any medical records."  Although the attorney has submitted an evaluation by Dr. Lewis, records from individual sessions have not been submitted.  The Veteran and attorney were notified of Dr. Lewis' failure to provide records in the April 2017 supplemental statement of the case.  The duty to assist is not a one-way street.  If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

In its February 2015, the Board also directed that the RO attempt to obtain records from Dr. Standlauder and Dr. Larner.  The Veteran did not submit an up-to-date authorization for VA to obtain records from Dr. Standlauder.  With regard to Dr. Larner, the response to a request for records reflects that those records were destroyed. 

Based on the foregoing, the Board finds that it does not have a further duty to assist. 

Rating Disabilities 

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings applies under a particular 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. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3.

In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Moreover, an appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. 

Rating PTSD

PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.  The VA Schedule rating formula for mental disorders reads in pertinent part as follows:

100 percent rating (the maximum scheduler rating) - 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.

70 percent - 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); inability to establish and maintain effective relationships).

50 percent -- 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.

30 percent -- 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, and mild memory loss (such as forgetting names, directions, recent events).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). 

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112  (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118.

TDIU

Total disability ratings for compensation may be assigned where the schedular 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 a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a).  Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).

To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340.  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).

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15.

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. 38 C.F.R. § 4.16 (b).  Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence pertinent to the issues on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 

Rating PTSD

The Veteran is in receipt of service connection from September 9, 2010.  His disability is rated as 30 percent disabling prior to September 6, 2016 and as 50 percent disabling thereafter.

Based on a review of the evidence of record, the Board finds that an increased rating is not warranted for any time period on appeal. 

In reaching this decision, the Board has reviewed the evidence of record, to include private and VA records, and the Veteran's statements, and has considered all psychiatric symptomatology.  The Board wishes to make it clear that while it has read all the evidence, it will not discuss each and every reported symptom for each and every encounter. 

In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms.  Thus, the Board will consider whether the evidence of record suggests that the severity of the Veteran's PTSD symptoms increased sometime prior to the date of the examination reports. 

The Board has broken down the rating periods into smaller time frames for purpose of analysis.  The Board has also considered the history of the Veteran's disability prior to the rating period on appeal as the history is for consideration.  

2010

As noted above, the Veteran is in receipt of service connection effective from September 9, 2010.  September 2010 correspondence from psychiatrist L. Mack reflects that the Veteran had been her patient since 2005.  She noted that since that time, she had seen the Veteran on a recurring basis to address his symptoms of depression and anxiety.  She further noted that "while he has shown much improvement in his ability to manage his moods and in his ability to develop techniques for mitigating the effects of depression on his overall level of functioning, he admits that he is still prone to episodes of sadness and feelings of loss."

A November 2010 VA examination report reflects that the Veteran reported anxiety symptoms and depression.  He reported "moderate daily anxiety", hyperarousal, sleep disturbances, and avoidance.  The Veteran was divorced, but noted that he has "good reliable friendships".  It was noted that he had recently joined the VFW (Veterans of Foreign Wars) and that he plays basketball for recreation.  

It was also noted that the Veteran had worked on Wall Street for over 30 years until he was separated in a corporate downsizing.  The report reflects that the Veteran had been working as an insurance broker for the past three years and he found it "enjoyable", and that he liked the activity and responsibility.

Upon examination, the Veteran was well groomed, neatly attired, pleasant, cooperative, and calm.  His mood and affect were mildly depressed.  His speech and communication processes were normal, his perception was intact, there was no evidence of any disorder of thought processes or content, he denied suicidal and/or homicidal ideation, and his memory and general cognitive functions were intact. 

The 2010 examiner assigned a GAF score of 70.  Although GAF scores are no longer used in the current DSM-V, the Veteran's score is indicative that the examiner was of the opinion that the Veteran has some mild symptoms or some difficulty social occupational or school functioning but that the Veteran is generally functioning pretty well, and has some meaningful interpersonal relationships  

Despite the Veteran's complaints, the evidence is against a finding that a rating in excess of 30 percent is warranted.  A 30 percent rating is assigned to compensate a Veteran for occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  Symptoms which the Veteran has such depressed mood, anxiety, and chronic sleep impairment, are listed as examples.

Although the Veteran reported moderate symptoms, his treating physician noted that the Veteran could manage his moods, the VA examiner found his symptoms to only be mild, and the record notes that the Veteran was able to maintain good friendships, initiate new relationships (i.e. join an organization), and actively participate in an activity with others (i.e. plays basketball).  The record also notes that he was completely independent in daily living and had no history of substance abuse.

2011

In August 2011 correspondence (notice of disagreement), the Veteran reported that he experiences intrusive memories and disruptive flashbacks.  He reported that he has had 19 different employers in more than 30 years working in the financial services industry and that his mood and motivation was such that he "almost never established productive nor effective work relationships."  

The Veteran did not provide any employment records detailing why he switched employment, or how flashbacks and intrusive memories had impeded his work.  Notably, when asked about his work in 2010, he reported that he had worked for an insurance company for the past three years and he found it "enjoyable", and that he liked the activity and responsibility.  At the time of the August 2011 correspondence, the Veteran was still working for the same company.  Thus for the year of time of his service connection and the three years prior, he had been working for the same company.  For purposes of rating the Veteran this time period is more probative than the three decades prior.  (Although the history of the disability is for consideration.)

The Board finds that there is not sufficient probative evidence upon which to base an increased rating.


2012

A private record from Dr. L. Rubin reflects that in November, the Veteran was working in insurance, was doing "ok", and had his "ups and downs".  The Veteran reported that he had made a "half-hearted" search for a mate but had not been successful on an internet dating site.  It was noted that the Veteran's attitude was "fine".  It was further noted that the Veteran was applying for an increase in his PTSD disability evaluation and that he "has acquaintances who have 'worked the system'; one is getting 100%".  The record does not support a finding that the Veteran's symptoms had become chronically worse, merely that he wished to have a higher rating.

Another record reflects that the Veteran had stopped taking his Wellbutrin, feels "ok" but was lonely since his relationship of recent years had fallen apart.  He reported that he was working with an internet dating site but most of the potential matches were "losers with fake profiles."

In December 2012 correspondence, psychologist L. Mack stated, in pertinent part, as follows:

[The Veteran] continues to report some mild lability in mood and affect, specifically along the depressive continuum.  He continues to report some disruption of sleep, ruminative thinking, social isolation, avoidance of stimuli, distractibility, and difficulties in concentration and focus.  He is experiencing stressors in occupational, financial, social and health-related spheres that also affect his overall mood and functioning.  While he has been able to achieve a greater overall emotional wellness, he has difficulties in sustaining these levels for a period of time.  He reports a cyclic pattern of emotional, deterioration followed by rebuilding that has gone on for several years.  We continue to focus on these rebuilding techniques, utilizing a cognitive/behavioral approach. 

The Board finds that the a rating in excess of 30 percent is not warranted.  The Veteran was still working, interested somewhat in starting a new romantic relationship, and only had mild lability in mood and affect.  His clinician also noted that the Veteran had been able to achieve a greater overall emotional wellness, albeit not always sustainable.  The record is negative for suicidal ideation, danger to others, neglect of hygiene, hallucinations, memory loss, inability to function independently, difficulty understanding complex commands, panic attacks, or other symptoms which may be indicative of a more severe level of social and occupational impairment. 

2013

A January 2013 private record reflects that the Veteran had decided to re-start the Wellbutrin and finds that he feels better on it.  He also had met some women on an internet dating site and "actually is enthusiastic about one of them. quite an anti-depressant effect there."

An April 2013 record reflects that the Veteran had met a woman on-line and that he feels "fine".  A November 2013 record reflects that the Veteran was still taking Wellbutrin, feels well, and was trying to get a job with a development office on the grounds that he is grateful patient, but was ignored.

The evidence is again against a finding that a rating in excess of 30 percent is warranted.  The Veteran, although apparently changing jobs, reported that he was feeling fine, and had initiated a new social relationship.  The Board acknowledges that the Veteran was taking medication for his symptoms; however the Board also notes that a 10 percent rating would compensate the Veteran for symptoms which are controlled by continuous medication.  The evidence does not support that the Veteran had circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of memory; or impaired judgment; impaired abstract thinking.  It does not reflect occupational and social impairment with reduced reliability and productivity due to his service-connected acquired psychiatric symptoms.

2014

A September 2014 private record reflects that the Veteran reported that he started feeling depressed for about six months; a friend had died.  It was noted that he is still seeing a woman whom he had been seeing the previous year.  It was also noted that he had a job at a bank advising people and that he "enjoys" it. 

In October 2014 correspondence, psychologist L. Mack stated, in pertinent part, as follows:

[The Veteran] continues to report some lability of mood and functioning, which he manages both cognitively and behaviorally as well as with periodic psychopharmacologic supplementation.  He reports fluctuations in mood and functioning which are not directly related to current life stressors, though these stressors may exacerbate the symptoms he experiences.  More specifically [the Veteran] continues to experience episodes of anxiety, difficulties in concentration and focus, disruptions to sleep and irritability. His treatment plan is currently focused on sustaining and maintaining an overall physical and emotional wellness and well-being utilizing a cognitive-behavioral approach. 

The Veteran testified at the Travel Board hearing that when he was seen by the VA physician (Dr. Jones) in 2010, he had been embarrassed to tell her the truth about suicide ideation and depression because he felt he had to "man up", and that he did not mention those symptoms until he knew that he could file a claim for such.  (See Board hearing transcript, page 4.)  The Board finds the suggestion that his symptoms were more severe than the current ratings assigned this lacks credibility as it is inconsistent with the other evidence of record, including private clinician records over the years to whom he reported depression.  The Veteran also testified that he smiles a lot and gets along with people but that underneath he can be "really, really angry" and "totally depressed".  He also testified that he worked for a friend in an insurance agency but left when he became bored, and that he now works at a bank.  He testified that he works because it's "something to do", he can meet people, and he can be outgoing and personable.  He also stated that "[i]t's good to go to work and have some responsibility.  It's hard to do but these are jobs I work for friends.  I don't have to go in every day.  I can do it a few hours."  He testified that he works maybe two to five hours a day and it is marginal employment.  He testified that he did not think he could pay attention if he had to work longer hours.  

That fact that the Veteran was still in a relationship from the previous year is strong evidence that he could initiate and maintain a social relationship.  The fact that he had a job working with the public, and advising people, and that he enjoys the job, is strong evidence that he does not have significant isolationism or difficulty dealing with people and work.  (The private record notes that he was advising personnel in increasing sales of their various products at 32 branches and enjoys it.)  Thus, he was able to initiate and maintain a new work relationship.  Importantly, he wanted to work to meet people and be personable because he enjoyed that social aspect. 

2015

Private records reflect that the Veteran reported that he was tired but that he was not depressed.  His treating provided found the Veteran to be "quite jolly" and that his mental status was well within normal limits.  Records reflect that the Veteran was "very happy" with a woman with whom he was involved.  The Veteran reported that he had recently become more anxious from heights and bridges but that this "did not impact his lifestyle at all."  The clinician noted that after discussing this new anxiety, the Veteran "then he switched into the old story of claiming that wartime experiences have damaged him in some way that should get compensation.  He was told he might be about to get more money out of the VA."  

The Board notes that the Veteran may not ignore a Veteran's complaints simply because he or she is an interested party and stands to gain monetary benefits.  In this regard, the Board notes that in 2012, the Veteran had stated, when he wanted an increase in his disability, that he knew people who have 'worked the system' to the point where one was getting a 100 percent disability; and then in 2015, it again appears that he is interested in financial gain to compensate him despite reporting to the clinician that he is working, in a pleasurable relationship, and not depressed. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511  (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.)
 
That fact that the Veteran was still in a relationship which made him happy, that he denied depression, that the clinician found that he was not depressed, that he was still working, and that the clinical reports are negative for legal issues, substance abuse, violent actions, memory loss, impaired impulse control, homicidal ideation, suicidal ideation, impaired judgement, illogical speech, an inability to maintain personal hygiene, and/or panic attacks are evidence against a finding that a rating in excess of 30 percent is warranted.  He has not been shown by probative evidence to have occupational and social impairment with reduced reliability and productivity due to his service-connected acquired psychiatric symptoms.

2016 and 2017

Dr. G. Lewis completed a VA PTSD DBQ (Disability Benefits Questionnaire) dated in April 2016 but submitted to VA in September 2016 along with the below noted August 2016 correspondence.  In the DBQ, she found that the Veteran's symptoms caused occupational and social impairment with reduced reliability and productivity.  It was noted that he did not have legal problems or substance abuse problems.  The Veteran reported passive suicidal ideation with no plan.  He also reported depressed mood, flashbacks, anxiety, disturbances of motivations and mood, avoidance, exaggerated startle reflex, chronic sleep impairment, and impairment impulse control, such as unprovoked irritability with periods of violence.  

Notably, the examiner found that the Veteran did not have the following: panic attacks, impaired judgement, difficulty in understanding complex commands, memory problems, speech problems, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful situations, obsessive rituals, grossly inappropriate behavior, persistent danger to himself or others, neglect in personal hygiene, or disorientation to time and place.  The Board acknowledges that the Veteran, for the first time, reported passive suicidal ideation in 2016, and the examiner still found that he did not have symptoms more severe than causing impairment with reduced reliability and productivity. 

Received with the DBQ was August 29, 2016 correspondence received by VA on September 7, 2016, G. Lewis stated that the Veteran reported daily flashbacks, avoidance, and exaggerated startle reflexes.  It was noted in pertinent part as follows:

 . . .according to self-report and feedback from [the Veteran's] attorney, [the Veteran] while once in a high-pressured occupation for many years, also was fired quite frequently due to difficulty getting along with his colleagues, having frequent outbursts of anger and difficulty managing his frustrations when they would come up.  Currently, [the Veteran] is professionally occupied in a job that entails little if no pressure, a schedule self-directed by [the Veteran] himself, and a great deal of latitude from his boss.  [The Veteran] based on all data collected is not capable of maintaining a fluid flow of work requirements placed on him if conditions include ANY experience that feels stressful to him.  His impatience, outbursts, and ease of feeling overwhelmed significantly impair him.

The Board notes that this differs significantly from her DBQ April 2016 assessment in which she stated that the Veteran did not have difficulty adapting to stressful situations.  The Board also notes, as previously mentioned, that a December 2016 VA Report of Contact reflects that Dr. Lewis stated that she was not willing to send an evaluation report directly to VA and that VA needed to go through the Veteran's attorney "for any medical records".  Notably, no medical records for the Veteran's treatment, if any, and evaluation with Dr. Lewis have been provided to VA with the exception of the April and August 2016 reports.  The Board has no way of specifically knowing why Dr. Lewis changed her assessment of the Veteran.  In other words, she submitted an April 2016 DBQ with some findings but then summarized them differently in her August 2016 correspondence after noting the Veteran's "self-report and feedback from [his attorney]."  

Dr. Lewis also stated that the Veteran had once been in a high-pressured occupation for many years but was fired quite frequently due to difficulty along with his colleagues, having frequent outbursts of anger and difficulty managing his frustrations when they would come up.  However, there are no records to support this and there is not sufficient evidence that this occurred during the rating period on appeal.  None of the treatment records, albeit sparse, during the rating period on appeal reflect that he was violent at work or had emotional outbursts at work.  Moreover, the other clinical records do not reflect difficulties at work due to irritability or outbursts (The 2010 record reflects that lost his previous job on Wall Street due to corporate downsizing.  In addition, a November 2004 record (Dr. Perino/ Formedic) reflects that the Veteran was released from his employment due to downsizing.  An October 2005 record from Dr. Perino/ Formedic reflects that the Veteran was doing well at his new work and building a good referral base.)

The Board finds that if the Veteran had been violent at work or had had frequent outbursts at work over the years, as Dr. Lewis indicates, such would have been noted in any of the prior treatment records with regard to the Veteran's employment.

A September 2016 VA examination report reflects the opinion of the examiner that the Veteran's symptoms are best summarized by occupational and social impairment with reduced reliability and productivity.  The report reflects that the Veteran reported a positive relationship with his children and grandchild, that he has social support, and that he enjoys playing basketball, and enjoys golf.  The Veteran reported that he his short-temperedness did negatively impact his relationship with his ex-wife and his children.  The report reflects that the Veteran had worked on Wall Street for over 30 years but was let go due to corporate downsizing.  It also reflects as follows:

[He] went to work for a friend as an Insurance Broker for seven years.  He retired in 2013 [approximately aged 69] but found that he was "bored" so he went to work for a friend at Investors Bank.  He is currently working full-time but indicated that he doesn't work hard.  The [Veteran] stated that he has some problems with "lazy" co-workers and can become short-tempered; however his boss/friend tends to look the other way.

The Veteran denied substance abuse problems, legal difficulties, or behavioral problems that have resulted in police intervention.  His symptoms were noted to include depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. 

The examiner found that the Veteran does have some special accommodations (leniency for interpersonal problems with colleagues) however, his current symptoms would not preclude gainful employment. 

Based on the September 2016 VA examination report, the RO granted an increased rating to 50 percent from the date of the examination.  The Board finds that at no time prior to that examination does the probative evidence warrant a rating in excess of 30 percent.  

The Board finds that a higher rating is not warranted because the evidence does not support a finding that the Veteran has occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  

The Board has considered whether the effective date of the 50 percent rating should be earlier in 2016 (i.e. the date of the April or August 2016 documents from Dr. Lewis) but finds that it should not.  Dr. Lewis's findings lack significant probative value.  In this regard, the Board notes that in the April 2016, she stated that the Veteran had occupation and social impairment with reduced reliability and productively, checked that it was possible to differentiate his impairment by each of his mental disorders, but then she failed to do so.  (She stated that he has generalized anxiety disorder separate from his PTSD).  In the DBQ she stated that the Veteran had previously retired, and had become bored so he had gone back to work; this differs substantially from the August 2016 letter in which she stated that he had been frequently fired.  She has stated that she has had several meetings with him, and yet she has refused to provide them to VA despite an authorization form.  The Board also finds that Dr. Lewis' assessment of the Veteran for 2016 differs substantially from his treating provider of a number of years with no supporting reason as to the marked difference.

In January 2017 correspondence, psychologist L. Mack stated, in pertinent part, as follows:

[The Veteran] was seen for 14 sessions in 2010, 14 sessions in 2011, 4 sessions in 2014, 2 sessions in 2015 and 2 sessions in 2016 for a total of 36 sessions.  [The Veteran] presented for services with complaints of anxiety and depression as evidenced by increased apathy, hypersomnia, decreased energy, decreased motivation, increased isolation, increased distractibility and increased difficulty in attending to tasks of daily living.  He acknowledged a longstanding history of these symptoms, and a cyclic pattern of remission and exacerbation that appeared consistent with the external stressors in his life. Stressors at the time of initial presentation included financial concerns, social isolation, occupational dissatisfaction, and changes to physical health and wellbeing. Focus in treatment was on developing strategies for coping with the stressors at hand. Approach was cognitive behavioral, and [the Veteran] supplemented the therapy with a prescribed pharmacological regimen.  [The Veteran] tapered his sessions according to his experience of distress and discomfort, finally terminating treatment early last year. He reported an absence of symptoms that had precipitated treatment and a consistent pattern of identification and management of stressors. 

Thus, according to the treating provider for the majority of the rating period on appeal and who met with the Veteran on 36 occasions (Dr. Mack), the Veteran ceased seeking treatment in 2016 after therapy and medication alleviated his symptoms.  In addition, according to the treating provider for 2012 - 2015 (Dr. Rubin), the Veteran was doing well on Wellbutrin with no reports for anger, outbursts, violence, suicide ideation or difficulty with co-workers or the public at work.

In a March 2017 statement (VA Form 21-4138), the Veteran asserted that in 2010, he did not feel that he could continue to work on a full time basis.  This differs from earlier reports that he switched jobs because of a corporate downsizing.  He also stated that during the past five years, he was employed part-time from July 2014 to February 2017 working for an investors' bank assisting new employees.  He stated that towards the end of 2016, he did not feel that he could or should continue due to problems with concentration, irritability, and anxiety.  

Conclusion

The Board has considered the record as a whole and finds that an increased rating is not warranted for any period on appeal.  In this regard, the Board notes that despite the Veteran's symptoms, he has a positive relationship with his two children and with his grandchild, he has supportive friends, he has a girlfriend of more than three years who makes him happy, he plays golf and basketball for recreation, and he belongs to a service organization which would involve social interaction.  

The Veteran has not been arrested or involved in an incident which has resulted in law enforcement having been called, and he does not have a substance abuse problem.  He has maintained good hygiene, has been oriented, and has not been shown to have impaired judgement or abstract thinking.  Although he has previously noted that he is obsessive about some things (his shirts), he has not been shown to have any obsessive rituals which interfere with routine activities.  He does not have speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; or an inability to establish and maintain effective relationships); 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.  

Importantly, he does not have symptoms, whether or not listed in the rating criteria, which rise to the level of severity required for a rating higher than 50 percent for any period on appeal. 

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

In this case, comparing the Veteran's disability level and the symptomatology of his PTSD to the Rating Schedule, the degree of disability manifested by the various complaints discussed in the decision above is wholly encompassed or covered by the Rating Schedule, which provide for higher ratings for more severe symptoms or related symptoms.

The nature and extent of the Veteran's mental deficiencies and social impairment are incorporated in the schedular criteria for evaluating mental disorders, and he does not experience any symptoms not encompassed, contemplated, or covered in the criteria under 38 C.F.R. § 4.130, Code 9411. As previously noted, the symptoms listed for the rating criteria are examples of the type, severity, and duration of symptoms for a particular rating, and do not constitute a complete, all-inclusive list. Indeed, some of the Veteran's symptoms of PTSD are not specifically listed in the rating criteria, such as nightmares and flashbacks. Nevertheless, these and the other symptoms were identified, they were compared with the example symptoms listed in the criteria for higher ratings to determine if they were of the same kind, and (if so) their impact on the Veteran's occupational and social impairment was assessed. In other words, the Veteran does not experience any symptomatology of his service-connected disabilities that is not encompassed by the schedular criteria.

In light of the foregoing, the Board finds that the assigned schedular ratings are adequate, and that referral for consideration of extraschedular ratings for PTSD under 38 C.F.R. § 3.321(b)(1) is not required.

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 

TDIU

The Veteran is in receipt of service connection for PTSD evaluated as 30 percent disabling prior to September 9, 2010 and as 50 percent disabling from that date; he is not in receipt of service connection for any other disability.  Thus, he does not meet the rating criteria for a TDIU on a schedular basis (i.e. he has only one disability and it is not ratable at 60 percent or more).

Where, as here, the Veteran's service-connected disability does not meet the numeric evaluation requirements for a TDIU set forth in § 4.16(a), the Veteran may be granted a TDIU on an extraschedular basis. 38 C.F.R. § 4.16 (b).  Although entitlement to extraschedular TDIU is determined in the first instance by the Director of VA's Compensation Service (Director), the RO and the Board are tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. Id.; see Bowling v. Principi, 15 Vet.App. 1 (2001).  That threshold determination must be supported with a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). 

The Veteran has more than three decades of work in the financial industry.  He has a Masters degree in business administration (MBA).  He has not applied for VA Vocational Rehabilitation and Employment services.  

In a VA Form 21-8940, the Veteran asserted that he had last worked full time on June 1, 2010 when he became too disabled to work.  He reported that he next worked from July 1, 2014 to February 1, 2017 on a part-time basis, and that his highest gross earnings per month at that time was $3,250.  He reported that the work was 20 to 25 hours per week in sales support.  As noted above, at the 2014 Board hearing, he testified that he works maybe two to five hours a day and it is marginal employment.  

Also, as noted above, a November 2010 VA examination report reflects that the Veteran had worked on Wall Street for over 30 years until he was separated in a corporate downsizing.  It was also noted that he worked as an insurance broker for the past three years and he found it "enjoyable", and that he liked the activity and responsibility.  The Veteran had mild symptoms of his disability and a GAF score of 70.  According to an August 2011 record, the Veteran was still employed at the same company where he had been since 2008.  A 2012 private clinical record reflects that the Veteran was still working.  Thus, it is unclear to the Board why the Veteran reported in his 2017 application for a TDIU that he was not employed from 2010 to 2013.  Due to the inconsistencies in the record, the Board finds that the Veteran's report of a long period of unemployability during the appeal period is not credible.  A November 2013 record noted he was trying to get a job with a development office.  A September 2014 record reflects that he was working at a bank.  The September 2016 VA examination report reflects the opinion of the examiner that the Veteran's symptoms are best summarized by occupational and social impairment with reduced reliability and productivity.  It also notes that the Veteran is "currently working full-time . . . . [he] can become short-tempered; however his boss/friend tends to look the other way."  The examiner found that the Veteran does have some special accommodations (leniency for interpersonal problems with colleagues) however his current symptoms would not preclude gainful employment.  Dr. Mack found that the Veteran no longer had symptoms in early 2016 and he terminated his treatment.  As noted above, Dr. G. Lewis stated that the Veteran is not capable of any work conditions that feel stressful to him; however, the Board finds that it lacks significant probative value, as noted above. 

The Board has considered whether the Veteran's employment was substantial gainful employment and finds that it was.  Even if the Veteran was only working part-time, he noted an income of $3,250 a month which exceeds the poverty level.  And even considering that the Veteran stopped working in 2017, the Board does not find, as noted above, that it was his PTSD which precluded substantially gainful employment.  Although the Veteran has stated that he felt that he could not concentrate for several hours if he was working full-time, the probative record does not support a finding that he has concentration problems, or other problems, due to his PTSD which are so significant as to prevent substantial gainful employment, particularly given his high level of education (MBA) and work history.

The Board has also considered that the Veteran has stated that he worked for a friend.  In Faust v. West, 13 Vet. App. 342 (2000), the Court held that where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343 (c)(1).

The term "substantially gainful occupation" is not specifically defined for purposes of the regulations governing TDIU.  However, marginal employment is not considered substantially gainful employment.  Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person.  Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a).

The Board finds that the Veteran's employer's accommodations (e.g. overlooking the Veteran's frustrations) ultimately do not here create a sheltered work environment.  The Americans with Disabilities Act (A.D.A.) mandates reasonable accommodations for employees with substantial disabilities so long as the employee can satisfactorily perform the work once those accommodations are made. See 42 U.S.C. Chapter 126.  There is no credible argument presented that the Veteran was not capable of and did not in fact perform the work for which he was paid once accommodations were made, or that the accommodations made for him due to his disability were unreasonable.  

The Social Security Administration which is the most closely analogous legal context uses the similar terms "sheltered or special environment" and "sheltered employment."  These are not precisely defined in title 20 of the Code of Federal Regulations.  20 CFR 404.1574 (a)(3), which the Code describes as an evaluation guide for employees for determining whether a worker is involved in substantially gainful activity, reads: "If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid.  The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or government aid does not establish that you are not earning all you are being paid. . . ."  A Social Security policy statement on determining whether work constitutes "substantial gainful activity" gives the following definition for sheltered employment: "Sheltered employment is employment provided for handicapped individuals in a protected environment under an institutional program." 

The Board has considered and rejected any argument that the Veteran's employment was in a sheltered work environment merely because he was friends with his superior and the superior "looks the other way" when he is short-tempered.  The statutory purpose of compensating Veterans for the impairment in earning capacity associated with their service-connected disabilities is to prevent the disabled employee from losing the income associated with his or her employment. Many disabled persons can be gainfully, and successfully, employed when their employers provide reasonable accommodations.  Merely because the Veteran's employer may have made accommodations for him does not render his employment sheltered.

The most probative evidence of record is against a finding that the Veteran's PTSD prevents him from substantial gainful employment consistent with his education and experience. 

Based on the foregoing, the Board finds that the Veteran's claim should not be referred to VA's Director of Compensation and Pension for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b). 

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 



ORDER

Entitlement to an initial rating in excess of 30 percent prior to September 6, 2016 and in excess of 50 percent from that date for PTSD (previously rated as adjustment disorder with mixed anxiety and depression) is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied.




______________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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