Citation Nr: 1754158	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  13-32 653	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, Delaware


THE ISSUES

1.  Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent prior to May 2, 2014, and 70 percent from May 2, 2014.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to May 2, 2014.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney


INTRODUCTION

The Veteran served on active duty from May 1968 to June 1971.  

These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware, pursuant to an increased rating claim received on March 31, 2010.

In July 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.
 
This case was previously remanded by the Board in October 2015.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  The case has been returned to the Board for review.

In a May 2014 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's PTSD to 70 percent disabling, effective May 2, 2014.  As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision.  See AB v. Brown, 6 Vet. App. 35 (1993).

Because the Veteran's claim for an increased rating for PTSD was received on March 31, 2010, the rating period currently on appeal is from April 1, 2009, one year prior to the date of receipt of the Veteran's claim for an increased rating.  38 C.F.R. § 3.400 (o) (2) (2017).  Therefore, the May 2014 rating decision's grant of a 70 percent rating for PTSD from May 2, 2014, created staged ratings, and the issue before the Board is as stated on the title page.  Hart v. Mansfield, 21 Vet. App. 505 (2007).    

 
FINDINGS OF FACT

1.  Prior to May 2, 2014, the Veteran's PTSD was manifested by symptoms productive of functional impairment comparable to no worse than occupational and social impairment with reduced reliability and productivity.

2.  From May 2, 2014, the Veteran's PTSD was manifested by symptoms productive of functional impairment comparable to no worse than occupational and social impairment with deficiencies in most areas.

3.  The most probative evidence does not reflect that, prior to May 2, 2014, the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to an increased rating for PTSD, rated as 50 percent disabling prior to May 2, 2014, are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017).

2.  The criteria for entitlement to an increased rating for PTSD, rated as 70 percent disabling from May 2, 2014, are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017).    

3.  The criteria for entitlement to a TDIU, prior to May 2, 2014, are not met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

With respect to the Veteran's PTSD and TDIU claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Legal Criteria - Rating Disabilities

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition.  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

Increased Ratings for Service-Connected PTSD

The Veteran seeks increased staged ratings for his service-connected PTSD which is currently rated as 50 percent disabling prior to May 2, 2014 and 70 percent disabling from May 2, 2014.  The Veteran's claim for an increased rating was received on March 31, 2010.  Therefore, the relevant rating period is from April 1, 2009, one year prior to receipt of the claim, through the present.  See 38 C.F.R. § 3.400 (o) (2).  For the period from April 1, 2009, through March 30, 2010, a higher rating will be granted if it is factually ascertainable that an increase in disability occurred, otherwise the date of receipt of the claim will be the earliest date an increase may be granted.  Id.    

The Veteran's service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders.  Relevant to the issue on appeal, under the General Rating Formula for Mental Disorders, 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; and difficulty in establishing and maintaining effective work and social relationships.

A 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 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.

A maximum 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.

The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, consideration is given to all symptoms of the Veteran's anxiety disorder that affect the level of occupational and social impairment.

Turning to the relevant evidence of record, a review of the Veteran's VA treatment records show that he regularly attends individual and group therapy sessions.  A September 2009 VA mental health clinic note reflects that the Veteran worked for the United States Postal Service and at his church.  The Veteran stated that his wife was supportive.  A February 2010 VA mental health clinic note reflects that the Veteran planned on retiring in May 2010.  His appearance was groomed and neat.  The Veteran was pleasant with normal speech in rate and tone.  The Veteran was oriented times three with fair memory and concentration.  He did not have any suicidal or homicidal thoughts.  

The Veteran was provided a VA PTSD examination in June 2010.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The Veteran reported that he has been married to his second wife for twenty-one years, has three children and a close relationship with his family.  He further stated he is a member of a church and golfs with his church friends.  The Veteran stated he enjoys golfing, listening to music and spending time with his grandchildren.  Upon examination, the Veteran was casually dressed.  His speech was unremarkable.  The Veteran was cooperative.  The Veteran was oriented to person, time and place and his thought process was unremarkable.  The Veteran stated he has thoughts of self-protection, but not homicidal.  The Veteran did not have hallucinations or exhibit inappropriate behavior.  His remote and recent memories were normal and his immediate memory was mildly impaired.  The Veteran described PTSD symptoms of difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating and hypervigilance.  The VA examiner opined that there was not total occupational and social impairment due to the Veteran's PTSD signs and symptoms.  The VA examiner stated that the Veteran's PTSD would not impair his ability to work but would fairly impact his judgment, thinking, mood and family relations.

A July 2010 VA mental health clinic note reflects that the Veteran plays golf, does home projects and is active in his church.  He stated that he and his wife entertain the grandchildren regularly.  The Veteran was alert and oriented with depressed mood.  His speech was clear and relevant.  The Veteran was rational with good insight, judgment and impulse control.

An August 2011 VA mental health assessment reflects that the Veteran was oriented times three.  His short-term, long-term and immediate memories were intact.  The Veteran's attention and concentration, language comprehension and fund of information were within normal limits.  The Veteran did not report delusions, hallucinations, suicidal ideations or homicidal ideations.    

The Veteran was provided a VA PTSD examination in May 2014.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The Veteran reported that he has been married for twenty-five years and has a close relationship with his wife and two of his children.  He reported he has a good friend through church.  The Veteran had PTSD symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances and suicidal ideations.  The Veteran was oriented times three.  His speech and tone were within normal limits.  The Veteran's thought process was logical and goal oriented.  He appeared depressed and anxious.  There were no indications of hallucinations or delusions and he denied experiencing any active suicidal or homicidal thoughts.  The VA examiner described the Veteran's occupational and social impairment as reduced reliability and productivity.  

An August 2014 VA mental health note reflects that the Veteran was attending and enjoying a VA spirituality group.  His mental state was anxious and depressed.  The Veteran denied suicidal or homicidal ideations.  His insight and judgment were intact and appropriate.  The Veteran's thought processes were clear and coherent.  There was no sign of thought disorder and his memory was good.  

At the July 2015 Board hearing the Veteran testified that he had suicidal and homicidal ideations prior to 2014.  However, he was reluctant to tell the VA examiners of these ideations.  He further testified that he has been severely depressed since 2010 and has short-term and long-term memory loss.   

An August 2015 VA mental health note reflects that the Veteran was anxious and depressed.  His affect was appropriate.  The Veteran denied suicidal or homicidal ideation.  His insight and judgement were intact and appropriate.  His thought processes were clear and coherent and there was no sign of thought disorder.  His memory was good.  

Prior to May 2, 2014, a rating in excess of 50 percent for PTSD is not warranted.  The Board finds that the next higher rating of 70 percent is not warranted because the Veteran's functional impairment associated with his PTSD has not been shown to be comparable to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood.

The medical evidence of record shows symptoms of depressed mood, anxiety, sleep impairment and disturbances of motivation and mood, which are considered by the assigned 50 percent rating.  The medical evidence also shows that the Veteran was still married, was consistently reported as oriented to person, place, and time and was able to function independently.  The Veteran reported some panic attacks and memory loss.  The Board notes that symptoms such as panic attacks, memory impairment, sleep disturbances and anxiety are considered by the 50 percent disability rating.  Additionally, the Board finds that, prior to May 2, 2014 the Veteran's PTSD symptoms were not productive of functional impairment more comparable to deficiencies in most areas such as work, school, family relations, thinking or mood.  

The Board carefully considered the Veteran's July 2015 Board hearing testimony that he had suicidal and homicidal ideations prior to May 2, 2014.  However, the only indication that the Veteran had suicidal or homicidal ideations prior to May 2, 2014 is his July 2015 Board hearing testimony.  The Veteran's VA treatment records show that he has received continuous VA mental health treatment during the period on appeal.  The Board thoroughly reviewed the Veteran's VA treatment records and they reflect that the Veteran continuously denied suicidal and homicidal ideations.  See, e.g., April 2014 VA mental health assessment, November 2013 VA individual therapy, December 2012 VA individual therapy, November 2011 VA individual therapy, February 2010 VA mental health note.          

In addition, the Veteran is not entitled to a 100 percent rating prior to May 2, 2014.  The evidence does not demonstrate total occupational and social impairment as a result of his service-connected PTSD.  The Veteran's disability has not manifested in symptoms productive of functional impairment comparable to such level of impairment.  As examples, there has been no demonstration of functional impairment comparable to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.  The Veteran has been oriented on examination and has not reported any homicidal ideation.  The Veteran has remained married and gets along well with his wife and two of his children.  Further, he was independent in his activities of daily living and reported that he worked at church and went golfing with friends from church.  As such, the Board finds that a 100 percent rating is not warranted prior to May 2, 2014.  As the evidence does not reflect total occupational and social impairment, a 100 percent rating is not warranted.  38 C.F.R. § 4.130.

From May 2, 2014, the Veteran's PTSD is assigned a 70 percent rating.  However, a 100 percent rating is not warranted.  Again, the evidence does not demonstrate total occupational and social impairment as a result of his service-connected PTSD.  The Veteran's disability has not manifested in symptoms productive of functional impairment comparable to such level of impairment.  As examples, there has been no demonstration of functional impairment comparable to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.  In addition the record does not reflect that the Veteran experienced the following symptoms:  circumstantial, circumlocutory or stereotyped speech, speech intermittently illogical, obscure or irrelevant, impaired judgment, impaired abstract thinking, or gross impairment in understanding complex commands.  The Board assigns great probative value to the May 2014 VA examiner's opinion as the examiner has medical expertise, reviewed the claims file, examined the Veteran and determined that the occupational and social impairment was more comparable to occupational and social impairment with reduced reliability and productivity.  Accordingly, a rating of 100 percent is not warranted from May 2, 2014.  

The Board notes that the Veteran is competent to report symptoms of his PTSD, as doing so requires only personal knowledge.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Board has considered his reported symptoms.  The Veteran is also credible in his belief that he is entitled to a higher rating.  However, the Veteran is not competent to render an opinion as to the relative severity of his PTSD, as doing so requires specialized medical knowledge or expertise the Veteran has not been shown to possess.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006).  The Board instead relies on the competent findings of record provided by medical professionals, given the professionals' expertise in evaluating mental disorders.  The probative evidence does not support a finding that a rating in excess of 50 percent prior to May 2, 2014 and in excess of 70 percent from May 2, 2014 is warranted for the Veteran's PTSD.

There is no identifiable period that would warrant an increased rating in excess of 50 percent prior to May 2, 2014 and no identifiable period that would warrant an increased rating in excess of 70 percent from May 2, 2014.  Therefore, staged ratings are not appropriate, other than the staged ratings currently assigned.  See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).  In light of the above, the Board finds that the preponderance of the evidence is against the claim.  The benefit-of-the-doubt rule is not applicable and the claim must be denied.  38 U.S.C. § 5107 (b) (2012).  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Entitlement to a TDIU prior to May 2, 2014

The Veteran seeks entitlement to a TDIU, prior to May 2, 2014.  A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017).  Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage.  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment shall not be considered substantially gainful employment.

The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question.  Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

In this case, the Veteran has indicated that he had to stop working as a truck driver for the United States Postal Service in March 2010 due to his service-connected PTSD and tinnitus.  See VA Form 21-4138, Statement in Support of Claim received June 2010.  The issue of entitlement to a TDIU has been raised and is part and parcel to the appeal for an increased rating for the service-connected PTSD.  Therefore, the relevant appeal period for the issue is from April 1, 2009, one year prior to receipt of the claim, through May 1, 2014.  See 38 C.F.R. § 3.400 (o) (2).  Prior to May 2, 2014, the Veteran was service connected for PTSD, rated as 50 percent disabling; and tinnitus, rated as 10 percent disabling.  His combined rating for compensation was 60 percent prior to May 2, 2014.  Accordingly, the schedular percentage requirements for a TDIU were not met prior to May 2, 2014, as the Veteran did not have a single service-connected disability rated as 60 percent disabling or a combined rating of 70 percent during that period.  See 38 C.F.R. § 4.16 (a).  Nevertheless, the Board will consider whether the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation such that referral for consideration of entitlement to a TDIU on an extra-schedular basis is warranted under 38 C.F.R. § 4.16 (b) prior to May 2, 2014.  

The Veteran was last employed as a truck driver for the United States Postal Service in March 2010.  He has a high school education with two years of college.  He has asserted that his service-connected PTSD and tinnitus prevent him from securing or following a substantially gainful occupation.  See VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received June 2010.  

The Veteran underwent a VA PTSD examination in June 2010.  The examiner noted PTSD-related symptoms of difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating and hypervigilance.  The VA examiner described the Veteran's service-connected PTSD as chronic, moderate to severe.  The Veteran stated he retired in 2010 based on being eligible by age or duration of work.  The Veteran stated that he worked independently when he was employed.  The VA examiner concluded that the Veteran's service-connected PTSD did not impair his ability to work.   

The Veteran underwent a VA audiological examination in January 2011.  The Veteran stated he has constant tinnitus.  The examiner opined that the Veteran's tinnitus had no significant effects on his occupation.  

At the July 2015 Board hearing, the Veteran testified that part of the reasons why he retired from the United States Postal Service was because he was constantly paranoid due to his PTSD and that the ringing in his ears interfered with his work.  The Veteran further testified that he is very sensitive to noise.  

In view of the above, the Board finds that, although the probative evidence of record shows that the Veteran likely is unable to secure or follow an occupation involving loud noises due to his service-connected tinnitus and PTSD, it does not show that it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation consistent with his educational and occupational experiences solely as a result of his service-connected disabilities.  

In arriving at this conclusion, the Board recognizes that the Veteran's service-connected disabilities have an impact on his occupational functioning.  In that regard, the evidence clearly shows that the Veteran's service-connected tinnitus limits his ability to be around loud noises.

Furthermore, the Veteran presented competent and credible lay witness testimony that his activities of daily living are limited by his service-connected PTSD and tinnitus.  See Layno, 6 Vet. App. at 470 (1994) (lay witnesses are competent to testify to features or symptoms of an injury or illness).  The Board finds the statements from the Veteran credible as to the Veteran's inability to perform a full range of work inasmuch as they are consistent with the other evidence of record.  However, the Board finds that the Veteran's statements are inconsistent with the other evidence of record, which reflect a level of disability that does not render the Veteran unable to secure or follow a substantially gainful occupation.  Therefore, the Board affords little probative value to the lay witness statements from the Veteran inasmuch as they assert that the Veteran is unemployable due to his service-connected PTSD and tinnitus.

The Board instead affords great probative weight to the opinions from the VA examiners.  The January 2011 VA examiner examined the Veteran, reviewed his medical records, and provided statements as to the relative level of severity of the Veteran's tinnitus.  The VA examiner opined that the Veteran's tinnitus would not significantly affect his occupation or his usual daily activities.  The June 2010 VA examiner opined that the Veteran's PTSD did not impair his ability to work.  The Board affords probative weight to these opinions because they were based on and are consistent with the evidence of record.  See Nieves-Rodriguez, 22 Vet. App. 295 (2008).
  
Accordingly, due to his service-connected tinnitus and PTSD, the Veteran is limited to positions that do not involve extensive noise.  The Board concludes that, as the Veteran was able to perform essentially a reduced range of work, prior to May 2, 2014, he was not unable to secure or follow a substantially gainful occupation due solely to his service-connected tinnitus and PTSD.  See 38 C.F.R. § 4.16.

In determining whether the Veteran is entitled to a TDIU the Board has considered the Veteran's level of education, special training, and previous work experience.  See 38 C.F.R. § 4.16.  As noted above, the Veteran has indicated that he has two years of college education.  The Board finds that the Veteran's level of education does not preclude his ability to perform a reduced range of work, not involving excessive noise.  

In view of the foregoing, the most probative evidence of record does not establish that, prior to May 2, 2014, it is at least as likely as not that the Veteran was unable to secure or follow a substantially gainful occupation consistent with his educational and occupational experience, due solely to his service-connected tinnitus and PTSD.  The Veteran's service-connected tinnitus and PTSD limited him to occupations not involving excessive noise.  As the preponderance of the evidence is against entitlement to a TDIU the benefit-of-the-doubt rule is not for application, and the claim must be denied.  See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  Accordingly, prior to May 2, 2014, a TDIU is not warranted.  


ORDER

For the period prior to May 2, 2014, entitlement to a disability rating in excess of 50 percent for PTSD is denied.  

For the period from May 2, 2014, entitlement to a disability rating in excess of 70 percent for PTSD is denied.

Entitlement to a TDIU, prior to May 2, 2014, is denied.  




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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