Citation Nr: 1829770 Decision Date: 08/01/18 Archive Date: 08/17/18 DOCKET NO. 14-35 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent from December 6, 2010 to June 30, 2011, in excess of 30 percent from June 30, 2011 to September 2, 2014, and in excess of 50 percent from September 2, 2014, for posttraumatic stress disorder (previously rated as anxiety disorder, NOS) (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to December 27, 2017. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2017. The Veteran's wife, S.E., was present as a witness at the hearing. A transcript of the hearing is of record. The Board notes that the Veteran raised the issue of TDIU at his October 2017 Board hearing. Therefore, the Board will consider this matter below. FINDINGS OF FACT 1. From December 6, 2010, to June 30, 2011, the Veteran's PTSD was manifest by occasional decreased 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, mild memory loss (such as forgetting names, directions, recent events). 2. From June 30, 2011, to September 2, 2014, the Veteran's PTSD was manifest by occasional decreased 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, mild memory loss (such as forgetting names, directions, recent events). 3. From September 2, 2014, to the present, the Veteran's PTSD was manifest by 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. 4. Prior to December 27, 2017, the Veteran's service-connected disabilities had a combined rating of 70 percent; these disabilities did not prevent him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability rating from December 6, 2010 to June 30, 2011, for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a disability rating in excess of 30 percent from June 30, 2011 to September 2, 2014, and in excess of 50 percent from September 2, 2014 for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. 2. The appeal for entitlement to TDIU prior to December 27, 2017 is denied. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 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). I. Increased Rating Disability ratings are determined by the application of the 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 (2017). 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 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts that he is entitled to higher disability ratings for his PTSD. Specifically, the Veteran contends that he should receive a disability rating in excess of 10 percent from December 6, 2010 to June 30, 2011, in excess of 30 percent from June 30, 2011 to September 2, 2014, and in excess of 50 percent from September 2, 2014. Initially, the Board notes that in a February 2018 rating decision, the RO decreased the Veteran's 50 percent disability rating for PTSD from 50 percent disabling to 30 percent disabling, effective January 26, 2018, based on the January 2018 VA examination. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] 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 under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-17. For example, "in the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Thus, assessing whether an increased evaluation is warranted requires a two-part analysis: "The . . . regulation contemplates[: (1) ] initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation[; and (2)] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas." Id. at 118. Pursuant to Diagnostic Code 9411, PTSD is rated 10 percent disabling when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted when there is 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), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). Id. A 50 percent evaluation is warranted when there is 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. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is for application when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. In evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). The Board also notes, however, that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). A GAF score of 61-70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 41-50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31-40 reveals some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). DSM-IV at 46-47. In a March 2011 statement, the Veteran endorsed symptoms of inability to cope with unknown or unexpected things in his life, irritability, lack of control, suspiciousness, avoiding fellow workers and family, flashbacks, helplessness, crying, self-pity, guilt, anxiety, and hatred. In a February 2011 VA examination, the Veteran reported that he was short-tempered on a general basis, and that he had "dreams at night." He stated that he was married for the past 32 years with 4 adult children that he had a good relationship with. He also stated that he had a few friends. He hunted and gardened. He said that he stopped working because of his back injury and the "economy went to hell." Upon examination, the Veteran was fully oriented, well groomed, friendly and cooperative. He denied suicidal intent, homicidal ideations, hallucinations, or delusions. His attention, memory and judgment appeared to be within normal limits. The Veteran was diagnosed with anxiety disorder, not otherwise specified. He was assigned a GAF score of 75. In a March 2011 VA treatment note, regarding suicidal ideation, the Veteran stated that he "might have had some thoughts at some point before but that's it." In an April 2011 VA examination, the Veteran was diagnosed with depressive disorder not otherwise specified, and was assigned a GAF score of 62. In a May 2011 VA treatment note, the Veteran was assigned a GAF score of 63. In a June 2011 VA treatment note, the Veteran complained of tearfulness as well as irritability. He described the least little thing would make him "go off or cry," and that he had lost numerous jobs because of his temper. He reported daily flashbacks, trouble sleeping, and inability to be around crowds of people. Upon examination he was casually groomed, his mood dysthymic and his affect was congruent with mood. He denied suicidal and homicidal ideation. There were no hallucinations or delusions noted. His speech was logical. In an October 2011 Notice of Disagreement, the Veteran described how he was unable to control his anger. He also said that he became angry during his February 2011 VA examination and told the examiner "I feel real hostile toward you and we better end this conversation right now," and he walked out. He described how he re-experienced his trauma on almost a daily basis. He said that the only stable thing in his life was his wife. In VA treatment notes from November 2011 to September 2013, the Veteran was assigned GAF scores ranging from 45 to 48. In an October 2013 VA treatment note, the Veteran complained of intrusive thoughts, avoidance of war thoughts and reminders, irritability, nightmares and difficulty sleeping. Upon examination, he was well-groomed, cooperative, speech was normal, mood and affect were anxious, memory was intact, and judgment was intact. He reported that he had his spouse and adult children for support and he rode his motorcycle for stress relief. He denied suicidal and homicidal ideation. He endorsed recurrent and intrusive thoughts, avoidant behavior, irritability, hypervigilance, difficulty concentrating, exaggerated startle response. He was assigned a GAF score of 55. In a February 2014 VA treatment note, the Veteran denied suicidal and homicidal ideation. The Veteran was assigned a GAF score of 49. In a June 2014 VA treatment note, the Veteran complained of having nightmares and "flying off the handle." He denied suicidal and homicidal ideation. He was clean and well groomed, cooperative, and speech was normal. His affect was anxious and frustrated, and his memory and judgment were intact. The VA physician said that the Veteran appeared emotionally stable. In a June 2014 private treatment note, the Veteran was diagnosed with PTSD. The social workers stated that the Veteran presented with intrusive symptoms manifested by intrusive thoughts, increased arousal response, and increased anxiety. His avoidant symptoms manifested by active avoidance, loss of interest, feeling detached and restricted emotions. His arousal symptoms manifested by difficulty sleeping, irritability and difficulty concentrating. The social worker said that these symptoms had an impact on the ability of the Veteran to function in social settings and had negatively impacted his social relationships. In a September 2014 mental disorders VA examination, the examiner noted a PTSD diagnosis. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was married with his wife of 35 years and had a good relationship with 3 of his adult children but "shaky" with the third. He farmed a vegetable garden to supplement income and enjoyed riding his motorcycle. He had a few friends that he hunted with, but did not describe them as close friends. Upon examination, the Veteran had depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner stated that the Veteran was well groomed, calm and polite. His affect was restricted and he became tearful as he spoke of Vietnam. He appeared mildly anxious. Speech was normal, thought processes were logical, and there were no signs of psychosis or unusual behavior. The examiner stated that the Veteran endorsed severe symptoms of depression, anxiety and PTSD. Specifically, the Veteran stated that he did not get along with his kids the way he should and that he had thoughts of committing suicide. He said that in 1972 he had a gun and was close to it. He said he could not trust anyone. In a March 2017 PTSD VA examination, the examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress, or; symptoms controlled by medication. The Veteran was still married and was retired and sold some of his farm produce at a farmer's market. The Veteran stated that he did not have a psychiatrist, took medication, did not engage in psychotherapy and denied a history of inpatient psychiatric hospitalization. He described feeling anxious, irritable, paranoia, low frustration tolerance, intrusive memories, guilt, avoiding crowds, sleep problems and nightmares. Upon examination, the examiner noted the Veteran's symptoms included anxiety, suspiciousness, and chronic sleep impairment. In October 2017, the Veteran testified at his Board hearing that he had sleep problems, but taking a pill would help. He sometimes would break down and start crying, feel depressed and wonder if life was worth living. He said he had nightmares at times. Medication helped sometimes. He said he is argumentative. The Veteran's wife said that he was angry a lot and irritable and at one point had hit her. She also stated that their kids did not like to go to the house a lot because of his anger. She said that sometimes the Veteran has felt that he wants to kill himself. The Veteran said that at his VA examinations, he underreported his symptoms. He felt guilty and had memory problems sometimes. He said he planted vegetables, sold them at a farmer's market and had a friend he rode motorcycles with. He stated that he was previously married and it only lasted 3 years due to his PTSD symptoms. In lay statements submitted by the Veteran's sons, brother, friend, combat medic, fellow soldier, and his wife's coworker in October 2017, the Veteran was described as having trouble with work expectations, irritability, outbursts of anger, trouble sleeping, inability to empathize with others, considered suicidal, nightmares, unable to hold a job, guilt, recurring thoughts, flashbacks, and isolation. He stayed busy with a few hobbies and working on his farm. In a January 2018 VA examination, the examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he was depressed and irritable. He had intrusive thoughts and rode his motorcycle to relax and calm down. He avoided crowds. He went to church almost every week and there were usually about 100 people there. He endorsed paranoia and nightmares. He denied suicidal ideation. He was functionally independent and did yard work, raised chickens, and made some product for his own consumption. Upon examination, the Veteran had depressed mood, anxiety, suspiciousness, and chronic sleep impairment. He was well-groomed, cooperative, speech was normal, thought process was linear and goal directed, memory and cognition were intact. There was no evidence of auditory or visual hallucinations. Insight and impulse control were intact. The examiner concluded that the Veteran's objective test results were invalid and suggestive of over endorsement making it difficult to interpret any current level of impairment. However, the Veteran is prescribed psychotropic medications and has sought mental health services in the last year suggesting that any current symptoms are sufficiently distressing to motivate treatment. Overall, the evidence of record reflects that from December 6, 2010, to June 30, 2011, the Veteran's PTSD was manifested by irritability, lack of control, suspiciousness, isolation, flashbacks, helplessness, depression, self-pity, guilt, anxiety, and sleep impairments. He was married for over 30 years, and had a few friends and hobbies. The Board finds that the frequency, severity and duration of these symptoms are consistent with a 30 percent rating, which contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, from December 6, 2010 to June 30, 2011. The Board notes that the evidence has varied regarding the Veteran's ability to function in social and occupational settings and his GAF scores varied between 62 and 75, representative of mild symptoms. However, the Board does not only consider GAF scores when determining the severity of a mental health disability. While not all of the symptoms supportive of a 30 percent rating have been documented, resolving any reasonable doubt in the Veteran's favor, the Board finds that the medical and lay evidence of record supports a finding of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, at no point between December 6, 2010 and June 30, 2011, has the Veteran's service-connected PTSD been shown to have met the criteria for the higher rating of 50 percent. The evidence does not show that the Veteran has had 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. As stated above, the evidence shows that the Veteran was married over 30 years with a good relationship with his wife and children and that he had hobbies and friends. At the VA examination, the Veteran was found to be neat and well groomed and his attention, memory and judgment appeared to be within normal limits. Taken together with the other evidence noted above indicating at most moderate PTSD, with few, if any, of the symptoms described under the 50 percent rating, the Board finds that a higher rating is not warranted. Accordingly, the Board finds that a 30 percent disability rating, but no higher, from December 6, 2010 to June 30, 2011, is warranted. From June 30, 2011, to September 2, 2014, the Veteran's PTSD was manifested by irritability, flashbacks, trouble sleeping, nightmares, avoidant behavior, intrusive thoughts, depression, anxiety, loss of interest, hypervigilance, difficulty concentrating, exaggerated startle response, suspiciousness, and restricted emotion. The Veteran's speech was normal and memory and judgment were intact. The September 2014 VA examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was married with a good relationship with his adult children, rode motorcycle and hunted with friends, gardened and sold vegetables at a farmer's market. The Board notes that between November 2011 and September 2013, the Veteran's GAF scores were between 45 and 48. However, though the Board will consider the assigned GAF scores, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). The Board finds that the frequency, severity and duration of these symptoms are consistent with a 30 percent rating, which contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, from June 30, 2011 to September 2, 2014. The Board notes that the evidence has varied regarding the Veteran's ability to function in social and occupational settings and his GAF scores were between 45 and 48, indicative of severe symptoms. However, as stated before the Board does not only consider GAF scores when determining the severity of a mental health disability. The Board finds that the medical and lay evidence of record supports a finding of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At no point between June 30, 2011, and September 2, 2014, has the Veteran's service-connected PTSD been shown to have met the criteria for the higher rating of 50 percent. The evidence does not show that the Veteran has had 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. As stated above, the evidence shows that the Veteran was married over 30 years with a good relationship with his wife and children and that he had hobbies and friends. Based upon results from a VA examination, the Veteran was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. To reiterate, VA treatment records noted that the Veteran was well-groomed, cooperative, speech was normal, mood and affect were anxious, memory was intact, and judgment was intact. He reported that he had his spouse and adult children for support and he rode his motorcycle for stress relief. He denied suicidal and homicidal ideation. Taken together with the other evidence noted above indicating at most moderate PTSD, with few, if any, of the symptoms described under the 50 percent rating, the Board finds that a higher rating is not warranted. From September 2, 2014, the Veteran's PTSD was manifested by anxiety, irritability, low frustration tolerance, intrusive memories, guilt, avoiding crowds, sleep problems, nightmares, and suspiciousness, and chronic sleep impairment. The September 2014 VA examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The March 2017 VA examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress, or; symptoms controlled by medication. The Veteran denied having a psychiatrist, engaging in psychotherapy, or a history of inpatient psychiatric hospitalization. He took medication for his disorder. In fact, the March 2017 VA examination shows improvement in the Veteran's PTSD symptoms. The January 2018 VA examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board finds that the frequency, severity and duration of these symptoms are consistent with a 50 percent rating, which contemplates occupational and social impairment with reduced reliability and productivity, from September 2, 2014. The Board notes that the evidence has varied regarding the Veteran's ability to function in social and occupational settings and he has expressed suicidal ideation at times. Nonetheless, the Board finds that the medical and lay evidence of record supports a finding of occupational and social impairment with reduced reliability and productivity. At no point from September 2, 2014, has the Veteran's service-connected PTSD been shown to have met the criteria for the higher rating of 70 percent. The evidence does not show that the Veteran has had 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 worklike setting); inability to establish and maintain effective relationships. As stated above, the evidence shows that the Veteran was married over 30 years with a good relationship with his wife and children and that he had hobbies and friends. The Veteran had retired and sold some of his produce at a farmer's market. Based upon results from VA examinations, the Veteran was found to at worst have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Again, though the Veteran expressed suicidal ideation, overall the evidence shows that the Veteran was neat and well-groomed at his VA examinations. Speech was normal, thought process was linear and goal directed, memory and cognition were intact. There was no evidence of auditory or visual hallucinations. Insight and impulse control were intact. In fact, the January 2018 VA examiner concluded that the Veteran's objective test results were invalid and suggestive of over endorsement making it difficult to interpret any current level of impairment. Despite conflicting testimony of whether the Veteran's medication helped with his symptoms, overall his medication did seem to help and he did not need intensive psychiatric treatment. Finally, the Board notes that the Veteran showed further improvement in his PTSD symptoms, shown by the Veteran's January 2018 VA examination. Following this examination, the RO decreased the Veteran's 50 percent disability rating for PTSD to 30 percent disabling, effective January 26, 2018 in a February 2018 rating decision. Taken together with the other evidence noted above indicating at most moderate PTSD, with few, if any, of the symptoms described under the 70 percent rating, the Board finds that a higher rating is not warranted. Accordingly, from December 6, 2010 to June 30, 2011, a 30 percent disability rating is warranted for PTSD. From June 30, 2011 to September 2, 2014, a rating in excess of 30 percent and from September 2, 2914, a rating in excess of 50 percent for PTSD is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). II. TDIU Initially, the Board notes that the Veteran's service-connected coronary artery disease (CAD) with status post stent is rated 100 percent disabling, effective December 27, 2017. Hence, the Board will address whether the Veteran is unemployable as a result of his service-connected disabilities prior to that date. The Veteran contends that he is unemployable as a result of his service-connected disabilities. Specifically, he stated in his October 2017 VA Form 21-8940, that he was unable to secure and maintain gainful employment due to his anxiety disorder, coronary heart disease, and tinnitus. He later stated in his December 2017 VA Form 21-8940 that he is unable to secure and maintain gainful employment due to his CAD with status post stent and his posttraumatic stress disorder (PTSD). The Board may assign a TDIU in the first instance provided that certain schedular disability ratings requirements, such as a combined disability rating of 70 percent with at least one disability rating as 40 percent rating, are met. See 38 C.F.R. § 4.16 (a); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16 (a) are not met). Prior to December 27, 2017, the Veteran was in receipt of service connection for CAD with status post stent, rated as 30 percent disabling, PTSD, rated as 50 percent disabling, tinnitus, rated as 10 percent disabling, and residuals of impetigo, rated as noncompensable. Prior to December 27, 2017, the Veteran's combined disability rating was 70 percent. Thus, the schedular rating requirements for a TDIU are met. 38 C.F.R. § 4.16 (a). Although the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the Board finds that the evidence establishes that his service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation during the pendency of the claim. 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 service-connected disabilities. 38 C.F.R. § 4.16 (a). Factors to be considered are a Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to December 27, 2017, the Veteran was retired. The evidence of record indicates that he completed college. He was last employed in drilling wells in October 2010. In an April 2016 VA examination, it was noted that the Veteran stayed active "piddling around his farm;" he farmed about 1/2 acre to stay busy and feed his family. The Veteran reported that he would take some of his produce to the farmer's market to make some extra money. He would also fix his tractor or whatever else was broken and rake and hoe the land. The examiner opined that the Veteran's heart condition did not impact his ability to work. In a December 2016 mental health VA treatment record, the Veteran reported that his wife would be retiring soon and they were looking forward to traveling "especially back to Thailand." He continued to work on his vegetable farm and selling his produce at the farmer's market. In a March 2017 VA examination, the examiner determined that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and his ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported he was retired but worked on his small personal farm and sold some of his produce at a farmer's market. He said he last worked regularly 10 years prior drilling wells. In an October 2017 statement provided by the Veteran's brother, it was stated that the Veteran was not able to hold a job as a career because he always became angry and quit or got fired. At his October 2017 Board hearing, the Veteran testified that he would not able to work for anyone because of his PTSD. He also said that he planted everyday but that he could not have anyone work with him. He reported that when he was working in 2010 as an oil well driller, it was easy to work with them because they were alcoholics. However, he stated that he did not leave the job due to his anxiety disorder, but instead it "folded up during that little depression we had at the time where the building quit." He said that to help keep him busy he sold produce at a farmer's market. Overall, the Veteran's wife asserted that the Veteran's irritability and temper would impact his ability to work. Regarding the Veteran's CAD, the Veteran asserted that would inhibit his ability to do physical labor because he had to stop when he walked across the yard or garden, and he carried glycerin pills all the time. The Board finds that the evidence as a whole, including his own testimony at the October 2017 Board hearing that his job as an oil well driller ended due to the company folding, as well as the examiners' opinions are more probative. Specifically, the examiners' opinions directly address the Veteran's employability. The examiners did not find that the Veteran was limited in any form of employment prior to December 27, 2017. In fact, the Veteran himself, though retired, continued to work on his farm and sell produce at the local farmer's market. The Board has carefully considered the Veteran's statements regarding the effects of his disabilities on his employability. Although he experiences difficulty walking for long periods of time or dealing with other people, repeated VA examinations have indicated that he is not precluded from obtaining or maintaining substantially gainful employment. The Board has assigned these examination reports great probative value as they were based on an examination of the Veteran and a review of the pertinent evidence of record. In this regard, while it is apparent that the Veteran is impaired and has some difficulty based on his 70 percent combined rating prior to December 27, 2017, the critical question is whether these service-connected disabilities would cause him to be unable to work, notwithstanding his age or other nonservice-connected problems. For the reasons discussed above, the preponderance of the evidence is against the claim of entitlement to TDIU. The benefit-of-the-doubt doctrine is therefore not for application, and the appeal is denied. ORDER Entitlement to a 30 percent disability rating from December 6, 2010 to June 30, 2011, for posttraumatic stress disorder (previously rated as anxiety disorder, NOS) (PTSD) is granted. Entitlement to a disability rating in excess of 30 percent from June 30, 2011 to September 2, 2014, and in excess of 50 percent from September 2, 2014, for posttraumatic stress disorder (previously rated as anxiety disorder, NOS) (PTSD) is denied. The issue of entitlement to a TDIU prior to December 27, 2017 is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
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