Citation Nr: 18124018
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-32 666
DATE:	August 3, 2018
ORDER
1. The appeal of an increased disability rating in excess of 60 percent for service-connected urinary incontinence, having been withdrawn, is dismissed.
2. The appeal of an increased disability rating in excess of 20 percent for service-connected duodenal ulcer with esophageal ulcer and hiatal hernia, having been withdrawn, is dismissed.
3. The appeal of an increased disability rating in excess of 10 percent for service-connected fracture of the nose with obstruction on the left side, having been withdrawn, is dismissed.
4. The appeal of an increased (compensable) disability rating for service-connected maxillary sinusitis, bilateral, and ethmoid sinus, having been withdrawn, is dismissed.
5. The appeal of an increased (compensable) disability rating for service-connected erectile dysfunction, having been withdrawn, is dismissed.
6. Entitlement to an initial disability rating for service-connected acquired psychiatric disability, to include PTSD, in excess of 30 percent prior to November 17, 2015, and in excess of 50 percent thereafter is denied.
7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (a TDIU) prior to October 2, 2015, is denied.
FINDINGS OF FACT
1. Prior to the promulgation of a decision by the Board, on the record during the July 2017 Videoconference Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeals as to the issues of increased ratings for urinary incontinence, duodenal ulcer with esophageal ulcer and hiatal hernia, fracture of the nose with obstruction on the left side, a sinus disability, and erectile dysfunction.
2. For the initial rating period on appeal prior to November 17, 2015, the Veteran’s PTSD has more nearly approximated mild occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms of depressed mood, irritability, impaired concentration, occasional disturbing dreams, insomnia (chronic sleep impairment), and hypervigiliance (difficulty with crowds).
3. For the initial rating period on appeal from November 17, 2015, forward, the PTSD has more nearly approximated mild 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 medication due to symptoms such as problems with concentration, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting.
4. Prior to October 2, 2015, the Veteran was not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of service-connected disabilities.  
CONCLUSIONS OF LAW
1. The criteria for withdrawal of an appeal regarding the issues of increased ratings for urinary incontinence, duodenal ulcer with esophageal ulcer and hiatal hernia, fracture of the nose with obstruction on the left side, a sinus disability, and erectile dysfunction have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017); Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018).
2. For the initial rating period on appeal prior to November 17, 2015, the criteria for a higher initial rating in excess of 30 percent for PTSD have not been met or more nearly approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).
3. For the initial rating period on appeal from November 17, 2015, forward, the criteria for a higher initial rating in excess of 50 percent for PTSD have not been met or more nearly approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).
4. Prior to October 2, 2015, the criteria for the award of a TDIU have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran, who is the appellant in this case, served on active duty from October 1963 to June 1977.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.
In July 2017, the Veteran testified in a Videoconference Board hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is associated with the Veteran’s electronic file.
With regard to representation, by way of history, the Veteran executed an Appointment of Individual as Claimant’s Representative (on a VA Form 21-22a) in April 2013, naming Attorney Penelope E. Gronbeck as the Veteran’s representative.  The Veteran subsequently appointed Attorney Alexandra M. Jackson as the representative in December 2017 (on a VA Form 21-22a).  
An appropriate designation of a new representative automatically revokes any prior designation of representation.  38 C.F.R. § 20.607.  However, per 38 C.F.R. § 20.1304(a), a veteran has the right to change representation for a period of 90 days following the mailing of notice to the veteran that an appeal has been certified to the Board for appellate review.  After 90 days, the regulation provides that good cause must be shown for the change and the reason for delay.  38 C.F.R. § 20.1304(b).  Here, the Veteran’s request to change representation (via VA Form 21-22 in December 2017) was more than 90 days after certification and transfer of the appeal to the Board in August 2017, and the Veteran must demonstrate good cause for the delay in requesting a change in representation.  Finding that the Veteran has presented good cause, the Board grants the Veteran’s motion to change his representation to Alexandra M. Jackson, as reflected on the title page.
Withdrawn Issues
1. Entitlement to an increased disability rating in excess of 60 percent for service-connected urinary incontinence.
2. Entitlement to an increased disability rating in excess of 20 percent for service-connected duodenal ulcer with esophageal ulcer and hiatal hernia.
3. Entitlement to an increased disability rating in excess of 10 percent for service-connected fracture of the nose with obstruction on the left side.
4. Entitlement to an increased (compensable) disability rating for service-connected maxillary sinusitis, bilateral, and ethmoid sinus.
5. Entitlement to an increased (compensable) disability rating for service-connected erectile dysfunction.
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing.  38 C.F.R. § 20.204.
During the July 2017 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of increased ratings for urinary incontinence, duodenal ulcer with esophageal ulcer and hiatal hernia, fracture of the nose with obstruction on the left side, a sinus disability, and erectile dysfunction.  The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those appeals.  More specifically, the Veteran’s representative at the time, Attorney Penelope E. Gronbeck, affirmed that the issues the undersigned VLJ identified for withdrawal were correct.  The Veteran also clearly expressed that he was “okay” with the withdrawal of the listed appeals.  See Hearing Transcript at 3-4.  The Veteran’s full understanding of the consequences are shown based on his affirmation that he was “okay” with withdrawing the appeals identified, as well as his representation by an attorney.  See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018).  As the Veteran has effectively withdrawn the appeals on these issues, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeals, and they are dismissed without prejudice.  38 U.S.C. § 7104.
Higher Initial Ratings
Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor.  38 C.F.R. § 4.3.
When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  Here, the Board will evaluate the issue as an appeal for higher evaluations of the original award.  In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Id. 
In Golden v. Shulkin, 29 Vet. App. 221 (2018) the United States Court of Appeals for Veterans Claim (Court) recently held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014.  As the instant appeal was certified after August 4, 2014 (certified in May 2016), the Board will not rely on GAF scores in assigning the ratings in this case.
The Veteran is in receipt of an initial 30 percent rating for PTSD for the initial rating period on appeal prior to November 17, 2015, and a 50 percent rating for the period from November 17, 2015, forward, under Diagnostic Code 9411.  
Pertinent to this case, the General Rating Formula for Mental Disorders provides that a 30 percent rating is assigned for 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).  38 C.F.R. § 4.130.
A 50 percent rating is provided 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 rating is provided when there is evidence that the psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships.  Id.
A 100 percent rating requires evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.  Id. 
The use of the term “such as” in the General Rating Formula for Mental Disorders 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 symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.  The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation.  Id. 
In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.”  The Federal Circuit stated that “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.”  It was further noted that “§ 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.”
The Board has thoroughly reviewed all the evidence in the Veteran’s VA files.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as to the issues on appeal.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, infra.
1. Entitlement to an initial disability rating for service-connected acquired psychiatric disability, to include PTSD, in excess of 30 percent prior to November 17, 2015, and in excess of 50 percent thereafter.
Prior to November 17, 2015
After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period prior to November 17, 2015, the service-connected PTSD has manifested in symptoms that more nearly approximate mild occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, irritability, impaired concentration, occasional disturbing dreams, insomnia (chronic sleep impairment), and hypervigiliance (difficulty with crowds), and the severity, frequency, and duration of the PTSD symptoms did not cause occupational and social impairment with reduced reliability and productivity.
In a November 2010 VA mental health treatment plan, the Veteran presented to the mental health clinic after being absent for over a year.  He was well-oriented and related that he sought treatment because he “believe[d] [his] depression is related to PTSD.”  The Veteran described a decline in his functioning since he was last seen and reported that he was noncompliant on scheduled antidepressant medications.  He reported a significant decline in his mood and had problems with sleep since he ceased taking his medication.  The Veteran did not offer a reason for discontinuing the medication other than feeling better.  At the time of the November 2010 VA mental health treatment note, the Veteran denied a hopeless, helpless, or sad/depressed mood.
One month later, the Veteran underwent a VA PTSD examination in December 2010.  Upon mental status examination, the VA examiner indicated that the Veteran was alert and fully oriented, had no suicidal or homicidal ideation, had appropriate speech, and had linear and logical thought processes.  The Veteran’s mood was described as “pretty good” and his insight and judgment were intact.  The Veteran reported struggling with depression ever since serving in Vietnam, and he had irritability and low mood, at times.  He also had impaired concentration, insomnia (sleep difficulties), and hypervigiliance (difficulty with crowds).  The Veteran occasionally had disturbing dreams with combat content.  Regarding the frequency, severity, and duration of the psychiatric symptoms, the VA examiner indicated that they were daily, mild, and since serving in Vietnam, respectively.  More specifically, as to the effect of the symptoms on the Veteran’s social and occupational functioning, the VA examiner noted that the symptoms, including irritability and some degree of impaired concentration have caused, at most, mild impairment.  The VA examiner ultimately concluded that the psychiatric symptoms, generally, have not interfered with the Veteran’s social or industrial functioning.
Consistent with the findings of the December 2010 VA examiner, in a March 2011 VA mental health treatment plan, the Veteran was well-oriented and related his functioning as “up and down, the depression is better,” without irritability, anxiety, anhedonia, or problems sleeping.  The Veteran denied a hopeless, helpless, or sad/depressed mood.  The treating mental health professional indicated that the Veteran was stable and returning to a baseline level of functioning since restarting his medications.
Similarly, in a September 2011 VA mental health treatment plan, the Veteran was well-oriented and related his functioning as “doing well, no[thing] to complain about,” without irritability, anxiety, anhedonia, or problems sleeping.  At that time, the Veteran denied a hopeless, helpless, or sad/depressed mood.  The treating mental health professional indicated that the Veteran was stable and returning to a baseline level of functioning since restarting his medications.
In a March 2012 VA mental health treatment plan, the Veteran was again well-oriented and related his functioning as “I’m doing alright, have a few bad days,” without irritability, anxiety, anhedonia.  He reported occasional problems with excessive worry or feeling down, and did not sleep well; however, he indicated that he had not been compliant on his scheduled antidepressant of a sleep aid as scheduled.  At that time, the Veteran denied a hopeless, helpless, or sad/depressed mood.
The Veteran reported similar symptoms in a July 2012 VA mental health treatment plan and related his functioning as “been having ups and downs since my house burned.”  He described some decline in functioning and mood, but not for any extended period while on medication, and without irritability, anxiety, or anhedonia.  The Veteran reported some mild sleep disturbance with taking a sleep aid.  He stated, “I’m trying to find the good in a bad situation,” and denied a hopeless, helpless, or sad/depressed mood at the time of the July 2012 treatment.
In a July 2013 VA mental health treatment plan, the Veteran related his functioning as “I’m doing a lot better since able to get some sleep.”  He was absent of target symptoms and was functioning well with minimal problems or complaints, including no irritability, anxiety, anhedonia, mood swings, sleep disturbance.  The Veteran indicated that, since being able to rest, other symptoms have ceased, and he reported being compliant on his scheduled medications, without fail.
In a June 2014 VA mental health treatment plan, the Veteran described his functioning as “I have some good and bad days, overall I’m doing ok.”  The Veteran denied having depressive symptoms, anxiety, irritability, mood swings, problems with impulse control, worry, or anhedonia, but he continued having sleep disturbance.  Upon mental status examination, the Veteran was fully oriented with a euthymic mood, his thought process was goal-directed and coherent, he had adequate judgment and insight, and he denied delusions, suicidal and homicidal ideations, obsessions/compulsions, and hallucinations.
The Veteran had nearly identical findings in a November 2014 VA mental health treatment plan.  He was absent of depressive symptoms, but was having problems with insomnia.  However, he was functioning well and denied a hopeless, helpless, or sad/depressed mood.
The Veteran underwent a comprehensive VA telemedicine mental health evaluation via telephone in September 2015.  At that time, he reported that he was not taking mental health medications.  The Veteran explained that he felt the medications he was previously prescribed were not working.  However, the treating mental health professional advised the Veteran that, if he does not take the medication as prescribed, they will not feel like they are working.  The Veteran also reported that had problems sleeping and that “the negative things going on would have anyone depressed.”  He had not been able to sleep more than six hours continuously since being in the military.  At that time, he denied having nightmares.  Significantly, the Veteran endorsed having a good relationship with his second wife of almost 25 years.  In fact, the Veteran reported that he had custody of two of his grandchildren whose mother (the Veteran’s daughter) died in 2008.  The Veteran also endorsed episodes of feeling very good about himself and some irritability, but denied consistent goal-directed behaviors.  The Veteran’s wife stated that he could be verbally aggressive, but denied physical tendencies.  Further, the Veteran reported getting depressed for a few days at a time about eight to ten times throughout a year.  He denied having crying spells, having anhedonia or anxiety, feeling hopeless/helpless/worthless, having suicidal or homicidal ideation, or having hallucinations.
Upon mental health examination, the Veteran was fully oriented with a “good” mood.  His thought process was linear, logical, and goal-directed with mild looseness of associations.  His judgment was intact and his insight was fair.  The mental health professional indicated that precipitating factors were insomnia and mood disorder.  
Later that month, in a VA mental health progress note, the Veteran reported that he sleeps approximately three hours nightly and has occasional bad dreams.  At that time, he did not take medication for depression or insomnia.  The Veteran reported that ha has faith in God and is a deacon in his church.  While the Veteran indicated that his anger is better, he still could not tolerate crowds or loud noise.  However, the Veteran related that he loves people and is “friendly, but not sociable” and enjoys being alone, but is not a loner.  Upon mental health evaluation, the Veteran was fully oriented, had a euthymic mood, and his insight and judgment appeared to be good.  
In a November 9, 2015 VA mental health treatment plan, the Veteran was well-oriented with a euthymic mood.  At that time, he described his functioning as “I [am] able to sleep with that medication, but my dreaming has gotten worse.”  He described changes in functioning from sleep disturbance, but other depressive symptoms were unchanged.  He was absent of hopeless, helplessness, or sad/depressed mood.  The Veteran indicated that the bad dreams caused him to be anxious and irritable with poor impulse control.  Upon mental status examination, the Veteran was fully oriented, calm, cooperative, and had a euthymic mood.  His thought process was goal-directed and coherent.  He denied having delusions, suicidal or homicidal ideations, obsessions/compulsions, or hallucinations.  The Veteran’s judgment and insight were adequate.
Thus, the Board finds that, for the entire period on appeal prior to November 17, 2015, the evidence weighs against the assignment of a 50 percent rating for the Veteran’s PTSD.  The evidence establishes that the PTSD symptoms do not more nearly approximate occupational and social impairment with reduced reliability and productivity, which would warrant a 50 percent rating under Diagnostic Code 9411.  The Veteran has never been found to have a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; or impaired abstract thinking. 38 C.F.R. § 4.130.  In addition, the Veteran did not have other symptoms similar in severity, frequency, and duration associated with the higher (50 percent) disability rating.
Although the Veteran reported symptoms of disturbances of mood (one criterion for the 50 percent disability rating), depressed mood, and chronic sleep impairment, and irritability with poor impulse control (without periods of violence), the Board does not find these symptoms to be of such frequency, severity, and duration that they result in occupational and social impairment with reduced reliability and productivity to warrant a higher 50 percent evaluation at any point during the period on appeal.  See Vazquez-Claudio, 713 F.3d at 117 (§ 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); see also Mauerhan, 16 Vet. App. at 436 (stating that 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).  As discussed above, the Veteran maintained romantic and familial relationships (he was married for 25 years and had custody of two grandchildren during the appeal period), had consistent social activities and interactions (he was a deacon in his church), and had not been noted to be significantly impaired occupationally due to his PTSD symptoms.  The Board finds it significant that VA treatment records consistently note that the Veteran was stable particularly when taking medication as prescribed, mildly symptomatic, and at times, did not even meet the criteria for a diagnosis of PTSD.
In October 2017, the Veteran’s representative submitted a report from a private psychologist, Dr. Q.A.S.  While the date of evaluation was August 2017, the report appeared to focus on the severity of the Veteran’s PTSD for the period on appeal from August 16, 2010 to November 17, 2015.  The Board, however, does not find Dr. Q.A.S.’s report to be probative.  First, Dr. Q.A.S. incorrectly states that the Veteran is rated at “100 [percent] disabled by virtue of his psychiatric conditions, and has been since 2015.”  While it is true that the Veteran has a 100 percent rating from October 2, 2015, forward, the Veteran was awarded a 100 percent rating for service-connected occasional loss of bowel sphincter control associated with urinary incontinence due to adenocarcinoma of the prostate.  He does not have a 100 percent rating for the service-connected PTSD during any period on appeal.  In addition, Dr. Q.A.S. appears to rely on the inaccurate factual basis that the Veteran has been receiving Social Security Administration (SSA) disability benefits since 2010, and explained, in detail, how a person, generally, would meet the requirements to receive SSA disability benefits.  However, Dr. Q.A.S. does not refer to the particular findings of the SSA regarding the Veteran specifically, and appears to find that the Veteran must have had marked, severe, and persistent deficits in functioning in at least two domains by mere virtue of Dr. Q.A.S.’s (incorrect) finding that the Veteran was receiving disability benefits from the SSA.  In fact, the record does not reflect, and the Veteran himself does not contend, that he ever applied for, or received, SSA disability benefits.
Indeed, during the July 2017 Videoconference Board hearing, the Veteran’s former attorney explicitly questioned the Veteran regarding SSA benefits.  It was clearly revealed that the Veteran did not, and could not, apply for SSA disability benefits as he was eligible for SSA retirement benefits at that time.  See Hearing Transcript at 10-11.  Based on the above alone, Dr. Q.A.S.’s medical opinion is based, at least in part, on an inaccurate factual history and, as a result, has no probative value.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).
In addition, Dr. Q.A.S. refers to the December 2010 VA PTSD examination to bolster the contention that the Veterans’ PTSD is severe and warrants a rating higher than 30 percent prior to November 17, 2015.  However, Dr. Q.A.S. inaccurately reports the findings of the December 2010 VA PTSD examination by omission of the complete findings.  Specifically, Dr. Q.A.S. stated that the Veteran “reported poor frustration tolerance and struggling with feelings of hopelessness, and helplessness.”  In contrast, while the December 2010 VA PTSD examination report indicated that the Veteran struggled with feelings of hopelessness, and helplessness, the frequency was only “at times.”  Dr. Q.A.S. further found that the Veteran had “reduced appetite, lost weight, introversion, isolation, and significant difficulties with interpersonal functioning.”  However, the December 2010 VA PTSD examination findings provide a more comprehensive picture of the Veteran’s symptoms and functioning, which were conspicuously omitted by Dr. Q.A.S.  In particular, the December 2010 VA PTSD examination report indicated that the Veteran’s appetite was good at times, and more reduced at others.  The Veteran reported that, more recently, he thinks he may have lost some weight, but did not know how much and noticed his clothes were loose.  Although he indicated that he did not like being in large crowds, he said that he “love[s] people as a whole.”  Regarding interpersonal functioning, the Veteran indicated that he has learned to deal with his children and grandchildren more effectively over the years.  Further, as to social functioning, the Veteran attended church on a regular basis, and the VA examiner recorded that the Veteran socialized and “enjoys being with people.”  Dr. Q.A.S. attempted to explain that the Veteran, despite having regularly attended church for many years, was uncomfortable with that level of social interaction and was mostly done for the sake of his grandchildren to set a good example.  Inconsistent with this explanation, the Veteran continued to attend church, even becoming a deacon, and by the Veteran’s own accounts, during the December 2010 VA PTSD examination, enjoyed being with people.  Further, the VA examiner clearly noted that the Veteran’s psychiatric symptoms caused, at the most, mild impairment in social and industrial functioning.  While the severity of the Veteran’s symptoms has fluctuated, the VA examiner indicated that generally, the symptoms were not severe.
Importantly, the findings in the December 2010 VA PTSD examination report are consistent with the contemporaneous VA mental health treatment records.  Notably, Dr. Q.A.S. does not mention or address the Veteran’s VA psychiatric treatment records, which reveal less severe symptomatology than that purported by Dr. Q.A.S. for the appeal period from August 16, 2010 to November 17, 2015.  For these additional reasons, Dr. Q.A.S.’s medical opinion is afforded no probative value.
To the extent that the Veteran’s PTSD symptoms improve on medication, generally, VA does not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria.  See Jones v. Shinseki, 26 Vet. App. 56 (2012).  Conversely, if [the applicable diagnostic code] does specifically contemplate the effects of medication, then Jones is inapplicable.”  McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc).  Here, Diagnostic Code 9411 expressly authorizes VA to take into account the ameliorative effects of medication when evaluating PTSD and other psychiatric disabilities.  38 C.F.R. § 4.130, Diagnostic Code 9411 (providing a noncompensable PTSD evaluation when, inter alia, “symptoms are not severe enough... to require continuous medication” and a 10 percent PTSD evaluation when, inter alia, “symptoms [are] controlled by continuous medication”).  As such, the Board finds that, when rating psychiatric disabilities utilizing the General Rating Formula for Mental Disorders, the symptoms of a mental disorder are to be considered with the ameliorative effects of medication included.  In this regard, as discussed above, the Veteran’s symptoms, with medication, do not reach the level of severity and impairment contemplated by rating higher than 30 percent prior to November 17, 2015.
In short, the Board does not find that the Veteran’s symptoms have been of such frequency, severity, and duration that they result in occupational and social impairment with reduced reliability and productivity to warrant a higher initial 50 percent evaluation at any point during the period on appeal prior to November 17, 2015.  For these reasons, the Board finds that the preponderance of the evidence is against the appeal for a higher initial disability rating for PTSD in excess of 30 percent for the initial appeal period prior to November 17, 2015. 
From November 17, 2015
Neither the Veteran nor the representative contend, and the evidence does not show, that the Veteran’s PTSD more closely approximates the schedular criteria for the assignment of a disability rating in excess of 50 percent from November 17, 2015, forward.  Indeed, during the July 2017 Videoconference Board hearing, the Veteran’s former attorney indicated that the Veteran is already at 100 percent disabling from 2015 and is looking for “an earlier effective date for that 100 percent, which essentially means an increased PTSD rating going back to August 16, 2010.”  Hearing Transcript at 4.  As mentioned above, the Veteran, through the representative, focused on the period on appeal from August 16, 2010, to November 17, 2015.  
Regardless, in the November 2015 VA examination report, the VA examiner indicated that the Veteran had problems with concentration, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting.  Despite these symptoms, the VA examiner opined that the symptoms caused mild 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 medication (i.e., the occupational and social functioning criteria for a 10 percent disability rating under the General Rating Formula for Mental Disorders).
In a January 2016 VA mental health treatment plan, the Veteran described his functioning as “I was doing fairly well, but I’m still having them dreams and not sleep (sic) all that well.”  He also stated that his “mood is good most of the time” and denied hopeless, helplessness, or sad/depressed mood.  He related an increase in target symptoms when he has nightmares, but otherwise, he functioned fairly well, with no significant change in stressors reported.  At that time, he denied having anxiety, irritability, mood swings, anhedonia, problems with impulse control, or worry, but continued having sleep disturbance.  Upon mental status examination, the Veteran was fully oriented, calm, cooperative, and had a euthymic mood.  His thought process was goal-directed and coherent.  He denied having delusions, suicidal or homicidal ideations, obsessions/compulsions, or hallucinations.  The Veteran’s judgment and insight were adequate.
Upon mental status exam in August 2017 by Dr. Q.A.S., a private psychologist, the Veteran was fully oriented and reported that his mood was “up and down,” with poor sleep, nightmares and chronic pre-occupation with his worries.  Dr. Q.A.S. characterized the Veteran’s mood as having a baseline of dysthymia with a congruent affect.  He described the Veteran as having significant anxiety symptoms, although the frequency and duration of the anxiety was not noted.  The Veteran also reported having daily nightmares that were extremely distressing.  He also endorsed considerable persistent and disturbing memories, and tries to read the bible, almost compulsively, in an attempt to make them stop.  Dr. Q.A.S. did not indicate that this obsessional ritual interfered with the Veteran’s routine activities.  The Veteran indicated that he has severe physical reactions when he is reminded of his Vietnam experiences, and he avoids crowds and social situations.  He displayed considerable loss of interest in things he used to enjoy, as well as considerable worries about his future being cut short.  The Veteran reported difficulties falling and staying asleep, being “super alert” and on guard, and feeling emotionally numb.  
At that time, the Veteran did not have any psychosis, delusions, or hallucinations.  His thought process was clear and linear.  With regard to interpersonal functioning, the Veteran reported that he is somewhat close with his family, prefers to be alone, and is introverted.  While Dr. Q.A.S. indicated that this interferes with the Veteran’s ability to manage even minor activities of daily living and interferes with the Veteran’s ability to maintain effective relationships, Dr. Q.A.S. did not specify the activities of daily living affected by the PTSD symptoms, and did not acknowledge that the Veteran maintained his current marriage for nearly three decades and was awarded custody of two of his grandchildren.  The Veteran had no short or long term memory loss, his insight was good, his judgment was fair, and his impulsivity was low.
Although the Veteran had difficulty in adapting to stressful circumstances (one criterion for the 70 percent rating), based on the foregoing evidence, the Board finds that, for the period from November 17, 2015, the severity, frequency, and duration of the PTSD symptoms are consistent with the symptoms contemplated by a 50 percent disability rating and do not more nearly approximate the symptoms contemplated for a 70 percent disability rating.  For these reasons, the Board finds that the preponderance of the evidence is against the appeal for a higher initial disability rating for PTSD in excess of 50 percent for the period from November 15, 2015, forward. 
TDIU
The Veteran seeks entitlement to a TDIU based on the service-connected disabilities.  The Court has held that a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could, in certain circumstances, render the Veteran eligible for special monthly compensation (SMC) benefits pursuant to 38 U.S.C. § 1114 (s).  See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008).  Here, however, as SMC at the (s) level has been granted in a November 2015 rating decision, currently effective from October 2, 2015, the Court’s holdings in Buie and Bradley are not for application, and the issue of entitlement to a TDIU is therefore moot from October 2, 2015.  See 38 C.F.R. § 4.16(a) (a TDIU may be assigned “where the schedular rating is less than total”).  Conversely, Buie and Bradley do apply to entitlement to a TDIU prior to October 2, 2015, which the Board addresses herein.
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.  38 C.F.R. § 3.340.  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability.  38 C.F.R. § 4.15.
If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a). 
For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  Id. 
Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability.  38 C.F.R. § 4.17(a). 
A veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In determining whether unemployability exists, 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 any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  A veteran’s employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability.
In order for a veteran to prevail in his claim for a TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993).
The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).  Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).
2. Entitlement to a TDIU prior to October 2, 2015.
In VA Forms 21-8940, the Veteran contends that he was unemployable due to his service-connected disabilities prior to October 2, 2015.  Specifically, during the July 2017 Videoconference Board hearing, the Veteran testified that the PTSD, urinary incontinence, and loss of bowel and sphincter control caused his unemployability.  Hearing Transcript at 13.
For the entire TDIU rating period (prior to October 2, 2015), the service-connected disabilities are urinary incontinence due to adenocarcinoma of the prostate, rated at 60 percent; occasional loss of bowel sphincter control associated with urinary incontinence due to adenocarcinoma of the prostate, rated at 30 percent; PTSD, rated at 30 percent; duodenal ulcer with esophageal ulcer and hiatal hernia, rated at 20 percent; left side nose fracture, rated at 10 percent; sinusitis, rated as noncompensable; and erectile dysfunction, rated as noncompensable.  As such, the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are met for the rating period prior to October 2, 2015.
Initially, the Board notes that over the years, the Veteran has submitted four VA Forms 21-8940, “Veteran’s Application for Increased Compensation Based on Unemployability,” which were submitted in August 2000, May 2009, July 2009, and November 2010.  In the one he submitted in August 2000, he wrote he had “Some College.”  He also wrote that he last worked full time in September 1995.  In the ones he submitted in May 2009 and July 2009, he circled that he had one year of college and that he worked less than 40 hours a week from 2001 to June 2007 and then worked 25 hours a week from 2007 to June 2008.  In the one he submitted in November 2010, the Veteran checked he graduated high school.  At the December 2010 VA examination, the Veteran reported he had attended Mississippi Valley State University for a couple of years but never graduated.  At the November 2015 VA examination, the Veteran reported he had 42 hours of college credit.
On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran is rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of the service-connected disabilities for the period prior to October 2, 2015.  In a June 2009 VA genitourinary examination, the VA examiner indicated that the Veteran is able to engage in activities of daily living without restriction.  The VA examiner further noted that the Veteran last worked in June 2008 as a driver for transportation company.  The VA examiner opined that, from a general medical standpoint, he was unable to define any disabilities related to the genitourinary system, rectum/anus, or the stomach/duodenum that would interfere with the Veteran’s ability to perform his usual employment.  He explained that, while the urinary incontinence is somewhat bothersome to the Veteran, it does not preclude him from working.  
In a November 2010 VA genitourinary examination, the VA examiner noted the Veteran’s disabilities of adenocarcinoma of the prostate with urinary incontinence, loss of bowel sphincter control, duodenal ulcer disease with esophageal ulcer and hiatal hernia, and erectile dysfunction.  The Veteran reported that he last worked as a driver for company, but due to lack of funds, they did not continue his job.  He reported that, later that same year, the Veteran’s doctor advised that he should not have a driving job due to his hypertension (a nonservice-connected disability).  At the time of the November 2010 VA examination, the Veteran’s bowel movements were normal and there was no bowel sphincter dysfunction.  Based on a comprehensive physical examination, the VA examiner indicated that the Veteran is independent in his activities of daily living.  He opined that the Veteran’s status post prostatectomy with urinary incontinence, duodenal ulcer disease, and erectile dysfunction caused no functional impairment in the Veteran’s employability.
In the December 2010 VA PTSD examination, the VA examiner indicated that the effect of the PTSD symptoms, including irritability and some degree of impaired concentration caused, at the most, mild impairment in industrial functioning, and that generally, the psychiatric symptoms have not interfered with industrial functioning.  Specifically, the VA examiner noted that, on a difficult day, the Veteran estimated that he lost up to two hours of efficient work time due to problems with depression, irritability, and impaired concentration.  Out of a 40-hour work week, the Veteran estimated that he lost up to 10 hours of efficient work time.  The Veteran explained that he was unemployed because the place he most recently worked (the transportation company) shut down.  He reported that he was too old to get a job driving and had not been able to be hired for a similar position by another agency because of his age.  Based on these reports, the VA examiner indicated that the PTSD symptoms, including depression, irritability, and impaired concentration have caused a slight impairment in employment functioning.
As mentioned above, Dr. Q.A.S., a private psychologist, submitted a report regarding the Veteran’s unemployability, dated August 2017.  Dr. Q.A.S. stated,
[The Veteran’s] symptoms were found to keep him from working for approximately 10 hours out of a 40[-]hour work week.  The symptoms reported in this evaluation are consistent with those that [the Veteran] reported during this evaluation for the time period in question.  A loss of 10 hours of 40 hours total of work time represents a 25 [percent] complete absence of productivity and appropriate adaptive functioning in the work environment.  This certainly meets the criteria for a severe impairment that would be at odds with the ability to maintain competitive employment.  Certainly, he would not be able to work full time.
For the same reasons articulated above, the Board affords Dr. Q.A.S.’s medical opinion no probative value.  As discussed, Dr. Q.A.S. relied on the inaccurate assumption that the Veteran was in receipt of SSA disability benefits since 2010 to support the finding that the Veteran is unemployable prior to October 2, 2015.  In fact, the Veteran is not in receipt of SSA disability benefits.  
In addition, Dr. Q.A.S. inaccurately reported the findings of the December 2010 VA PTSD examination.  Although Dr. Q.A.S. stated that the PTSD symptoms kept the Veteran from working for approximately 10 hours out of a 40-hour work week, Dr. Q.A.S. exaggerated the effects of the Veteran’s PTSD symptoms and conspicuously omitted the complete findings in the December 201 VA PTSD examination report.  Importantly, the December 2010 VA PTSD examination report indicated that the Veteran lost up to 10 hours of efficient work time out of a 40-hour work week.  The VA examiner did not indicate that the Veteran could not or did not work for 10 hours per 40-hour work week.  Indeed, the VA examiner opined that the PTSD symptoms caused a slight impairment in employment functioning, a stark contrast to Dr. Q.A.S.’s finding of severe impairment based on the same symptoms and reported employment history as recorded in the December 2010 VA PTSD examination report.
Further, Dr. Q.A.S. continues by stating that,
[W]hile [the Veteran] lost 10 hours a week due to psychiatric symptoms, it is unlikely that he would be able to be entirely unaffected in the remaining 30 hours of the work week.  It is reasonable to conclude that his distress and difficulties with focus, irritability, and interpersonal functioning, were present in the rest of the work hours and caused moderate to marked interference as well.  This is consistent with the objective history of him being let go due to such difficulties.  [The Veteran] was unable to work after being let go in 2010 for such difficulties.
Here, Dr. Q.A.S.’s medical opinion is inconsistent with the evidence of record.  As discussed above, the December 2010 VA examiner opined that, after a contemporaneous psychiatric examination, the Veteran’s PTSD symptoms resulted in no more than slight occupational impairment.  Providing a retrospective medical opinion, Dr. Q.A.S. instead opined that the symptoms caused moderate to marked interference.  In addition, Dr. Q.A.S. inaccurately reported that there was an objective history of the Veteran being let go from his job due to such difficulties.  In fact, the evidence reveals, and the Veteran himself has reported, that he stopped working in 2008 because the transportation company he worked for as a driver had a lack of funding and shut down, and not because he was let go due to his PTSD symptoms.  
The Veteran also testified that, after he stopped working, he did not seek any more employment because he tried to apply for a job 15 years earlier and was told he was too old and that he had high blood pressure, suggesting that, but for his age and high blood pressure, he would be employable.  See Hearing Transcript at 14.  This is also consistent with the Veteran’s earlier report, during the November 2010 VA genitourinary examination, that his doctor advised he should not have a driving job due to his hypertension.  Although the Veteran generally asserts that he is unable to work due to the service-connected disabilities, the employment information of record reflects that his employment ended in 2008 due to lack of funding in the transportation company for whom he worked, which shut down, with no indication that the service-connected disabilities were the reason for the end of employment.  
In this case, the degree of occupational and functional impairment caused by all service-connected disabilities has been analyzed in a combined schedular rating of 90 percent prior to October 2, 2015.  Nonetheless, the symptoms and functional impairment associated with the service-connected disabilities would not significantly interfere with the ability to perform the tasks associated with more sedentary work.  The Veteran has reported attending college, which means he can perform more sedentary tasks, such as reading and writing and answering the phone.  The collective symptoms and functional impairment associated with the service-connected urinary incontinence due to adenocarcinoma of the prostate, occasional loss of bowel sphincter control associated with urinary incontinence due to adenocarcinoma of the prostate, PTSD, duodenal ulcer with esophageal ulcer and hiatal hernia, left side nose fracture, sinusitis, and erectile dysfunction, are not so severe so as to preclude the type of work for which the Veteran has educational and work experience.  Thus, the weight of the evidence is against finding that the severity of service-connected disabilities was sufficient to preclude substantially gainful employment for any period prior to October 2, 2015. 
After considering limitations related to the service-connected disabilities as shown by the credible lay and medical evidence, the Board finds that the Veteran was able to perform the type of work for which he had prior work experience and educational experience when considering the symptomatology and functional impairment of service-connected disabilities alone, without regard to age or nonservice-connected disabilities.  For the foregoing reasons, prior to October 2, 2015, the service-connected disabilities were not sufficiently incapacitating so as to preclude substantially gainful employment, and a TDIU is not warranted for any period.
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L.M. Yasui, Counsel 

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