Citation Nr: 18123998
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 11-23 811A
DATE:	August 3, 2018
ORDER
Entitlement to an initial 30 percent rating, but no higher, for PTSD is granted, effective from April 20, 2011, to November 20, 2014, subject to the regulations governing payment of monetary awards.  
Entitlement to a rating in excess of 50 percent for PTSD on and after November 21, 2014 is denied.  
Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities is denied.  
FINDINGS OF FACT
1.  From April 20, 2011, to November 20, 2014, the Veteran’s PTSD was manifested by nightmares, sleep disturbance, flashbacks, anxiety, exaggerated startle response, and Global Assessment of Functioning (GAF) scores ranging from 60 to 68, resulting in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  
2.  Prior to November 21, 2014, the Veteran's PTSD did not result in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships.  
3.  Since November 21, 2014, the Veteran’s PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: nightmares, chronic sleep impairment, flashbacks, anxiety, disturbance of motivation and mood, difficulty in establishing and maintaining relationships, but has not been manifested by deficiencies in most areas of work, school, family relationships, thinking, judgment and mood.  
4.  The Veteran's service-connected disabilities have not rendered him unable to secure or follow substantially gainful occupation.  
CONCLUSIONS OF LAW
1.  The criteria for an initial 30 percent rating for PTSD, but no more, during the period from April 20, 2011, to August 15, 2011, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411.  
2.  The criteria for an initial rating in excess of 30 percent for PTSD, during the period from August 15, 2011 to November 21, 2014, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411.  
3.  The criteria for a rating in excess of 50 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411.  
4.  The criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.16, 4.19.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from February 1967 to June 1976.  
This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from a July 2011 rating decision, which granted service connection for PTSD and assigned a 10 percent disability rating, effective April 20, 2011.  The Veteran perfected a timely appeal of the rating assigned.  In January 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO.  A transcript of that hearing is of record.  By a Decision Review Officer's (DRO) decision, dated in March 2012, the RO increased the rating for PTSD from 10 percent to 30 percent, effective August 15, 2011.  
On April 2, 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge, sitting at the RO.  A transcript of that hearing is also of record.  Thereafter, in September 2014, the Board remanded the case to the RO for further evidentiary development.  
By a rating action in February 2015, the RO increased the rating for the Veteran’s PTSD from 30 percent to 50 percent, effective November 21, 2014.  That, however, was not the highest possible rating, so the appeal continues.  See AB v. Brown, 6 Vet. App. 35 (1993).  A supplemental statement of the case (SSOC) was issued in January 2015.  Subsequently, a November 2015 rating decision denied the Veteran’s claim for a TDIU.  
The Veteran submitted additional evidence directly to the Board in late July 2018.  Subsequently, the service representative submitted a waiver of initial agency of original jurisdiction (AOJ) consideration of this evidence.  Accordingly, the Board may consider evidence in the first instance.  See 38 C.F.R. § 20.1304 (2017).  


1. Entitlement to a rating in excess of 10 percent for post-traumatic stress disorder (PTSD) prior to August 15, 2011, in excess of 30 percent prior to November 21, 2014, and in excess of 50 percent on and after November 21, 2014
The Veteran essentially contends that he is entitled to higher ratings for his PTSD because his disability is more severely disabling than reflected by the ratings currently assigned.  At his personal hearing in April 2013, the Veteran reported having nightmares so bad that his roommate yells to wake him up.  The Veteran reported that he experiences anxiety attacks; they cause him to become unnerved when he’s in a strange environment or unusual settings.  The Veteran maintained that he is no longer able to drive because of his PTSD; he noted that someone has to drive him everywhere.  Difficulty sleeping was also reported.  He stated that he had a few close friends.  The Veteran indicated that he does not trust anyone.  The Veteran reported being very angry.  He stated that his symptomatology has gotten worse over the last year.  
Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  
In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  
If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).  
The severity of the Veteran's PTSD is determined by 38 C.F.R. § 4.130, Diagnostic Code 9411.  Under that diagnostic code, a 10 percent evaluation is warranted when there is occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.  
A 30 percent evaluation is warranted 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, mild memory loss (such as forgetting names, directions, recent events).  
A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.  
A 70 percent rating requires 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); or the inability to establish and maintain effective relationships.  
A 100 percent rating requires 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; or memory loss for the names of close relatives, own occupation, or own name.  
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id.  The rating agency shall also consider the extent of social impairment, but not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  
For purposes of considering the evidence in connection with the PTSD issue, the Board notes that the Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness."  Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV") (100 representing superior functioning in a wide range of activities and no psychiatric symptoms).  See also 38 C.F.R. §§ 4.125, 4.126, 4.130.  
In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to "DSM-IV," AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994).  The amendments replace those references with references to the recently updated "DSM-5," and examinations conducted pursuant to the DSM-5 do not include GAF scores.  
A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.  A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).  A GAF of 61-70 denotes 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, has some meaningful interpersonal relationships.  
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013).  In Vazquez-Claudio, the Federal Circuit held 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.  Id. at 118.  Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating.  Id. at 116.  
Historically, the Veteran’s initial claim for service connection for PTSD (VA Form 21-526) was received in April 2011.  Submitted in support of the claim were VA progress notes dated from June 2010 to April 2011, which show that the Veteran received ongoing clinical evaluation and treatment for chronic PTSD; he received psychological counseling and attended group therapy for his PTSD symptoms.  During a clinical visit in June 2010, it was noted that the Veteran was admitted to a hospital for a work up for chest pain and dyspnea.  The examiner stated that the symptoms sound more like anxiety attacks with dyspnea not associated with exertion and associated with occasional right sided chest pain but no palpitations.  He was also having nightmares every other night pertaining to Vietnam for 13 months.  When seen in September 2010, the Veteran indicated that he continued having nightmares and insomnia; he also reported flashbacks and difficulty sleeping.  The assessment was PTSD/generalized anxiety.  On April 7, 2011, the Veteran’s primary care doctor referred him to the PTSD clinic for PTSD evaluation and treatment.  
The Veteran was afforded a VA compensation and pension examination for evaluation of PTSD in May 2011.  The Veteran reported serving in Vietnam for 13 months; during that time, he participated in Tet offensive and was on a fire base that received a lot of incoming attacks.  It was noted that the Veteran began treatment at the VA PTSD clinic in March 2010 with a diagnosis of PTSD; he subsequently began receiving individual therapy.  The Veteran indicated that he was having more angry dreams.  The Veteran was previously married but now divorced; he and his wife have two children with whom he is very close.  The Veteran reported that most of his social activities are spent with his daughter and son and their families, and their extended families.  The Veteran indicated that he retired last year, and he spends most of his time with his grandchildren.  
On examination, the Veteran was neatly groomed and appropriately and casually dressed.  He spoke freely and easily.  Psychomotor activity and speech were unremarkable.  He was cooperative, friendly, relaxed and attentive.  Affect was normal.  The Veteran reported feeling anxious, angry and totally confused most of the time lately.  He was fully oriented.  Though process and content were unremarkable.  No delusions or hallucinations were noted.  No inappropriate behavior was noted.  He denied any suicidal or homicidal thoughts.  Impulse control was good.  Memory was normal.  The pertinent diagnosis was PTSD, delayed, and he was assigned a GAF score of 65; the examiner described the severity of the PTSD as mild to moderate.  The examiner noted that the Veteran’s PTSD resulted in 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.  
VAPNs dated from April 2011 to January 2012 show that the Veteran received ongoing clinical attention and therapy for his PTSD symptoms.  During a clinical visit August 15, 2011, the Veteran indicated that he was having sleep disturbances, anxiety attacks and military nightmares.  On examination, it was noted grooming and hygiene were good.  Motor behavior was normal.  Eye contact was good.  Mood was cheerful, and affect was appropriate and variable.  Speech was relevant and spontaneous.  Thought processes were logical and goal-directed.  Though content was relevant and insight was adequate.  No suicidal or homicidal ideations were noted.  The pertinent diagnosis was PTSD, and a GAF score of 65; the examiner described the severity of the Veteran’s psychiatric disorder as moderate to severe.  
On the occasion of a DBQ examination in February 2012, the Veteran indicated that he sees his children and grandchildren daily or nearly every day.  He reported having a roommate of many years who is also his best friend.  It was also noted that the Veteran retired the previous year after 20 years with the ATT plant.  The Veteran was currently taking medications to control his symptoms and attending psychotherapy.  The examiner noted that the Veteran experiences nightmares, intrusive thoughts, flashbacks, hypervigilance, exaggerated startle reaction, and difficulty sleeping.  The examiner noted that the Veteran’s PTSD has remained the same.  The diagnosis was PTSD; the Veteran was assigned a GAF score of 65.  The examiner indicated that the Veteran’s PTSD resulted in 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.  
Submitted in support of the Veteran’s claim were additional VA progress notes dated from January 2012 to October 2014, which show that the Veteran received ongoing clinical evaluation and treatment for chronic PTSD; he received psychological counseling and attended group therapy for his PTSD symptoms.  During a clinical visit in August 2012, it was noted that the Veteran continued to have combat related nightmares and flailing in his sleep.  He denied any suicidal ideations.  He denied any depression.  The assessment was chronic PTSD, and he was assigned a GAF score of 60.  When seen in July 2013, the Veteran reported having nightmares nightly and he reported anxiety attacks.  The assessment was PTSD/anxiety, and it was recommended that the Veteran return to counseling.  A July 2014 treatment note reflects an assessment of PTSD, mild to moderate symptoms.  
The Veteran was afforded another DBQ in November 2014.  At that time, the Veteran indicated that he was previously married, and he and his wife had two children together, and they have many grandchildren.  The Veteran reported having regular contact with his son, daughter, and grandchildren “all of the time.”  The Veteran indicated that he currently lived in a house with a roommate; he has no other relatives in the area.  The Veteran related that his social life was mostly non-existent, and noted that he fears being alone, but his roommate is always there.  The Veteran indicated that their only social activity is going out for dinner on Saturday night.  It was noted that the Veteran retired in 2010; he indicated that he did factory work at AT & T.  On examination, the Veteran was described as pleasant, open, cooperative, and he smiled easily during the interview.  His responses to questions were brief and non-elaborative.  He was oriented in all spheres.  His attention and concentration were intact.  The Veteran described his mood as anxious and noted that he cries a lot.  His insight and judgment were intact.  The Veteran indicated that he took sleeping pills, but they don’t work.  His memory for remote, recent, and immediate events were intact.  The examiner noted that the Veteran’s PTSD is manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  The pertinent diagnosis was PTSD; he was assigned a GAF score of 65.  The examiner stated that Veteran’s PTSD causes occupational and social impairment with reduced reliability and productivity, which would lead to moderate difficulty in securing and following a substantially gainful occupation in his usual occupation as a production worker for 20 years until the plant closed in 2010 and the Veteran retired.  

(i)  Rating for PTSD from April 20, 2011, through August 14, 2011.
The initial question is whether a rating in excess of 10 percent is warranted for PTSD for the period from April 20, 2011 through August 15, 2011.  Resolving reasonable doubt in the Veteran's favor, the Board finds that upon consideration of the evidence above, the Veteran's disability has more nearly approximated a 30 percent disability rating prior to August 15, 2011.  
Significantly, the evidence reveals that the Veteran suffered from sleep impairment due to recurring nightmares.  The record also indicates that the Veteran experienced flashbacks, intrusive recollections of Vietnam, and anxiety attacks.  During the VA examination in May 2011, the Veteran reported feeling anxious, angry and totally confused most of the time lately.  The pertinent diagnosis was PTSD, delayed, and he was assigned a GAF score of 65; the examiner described the severity of the PTSD as mild to moderate.  It is noteworthy that, on August 15, 2011, the Veteran reported similar complaints as during the May 2011 examination; he indicated that he was having sleep disturbances, anxiety attacks and military nightmares.  The examiner reported a diagnosis of PTSD, and a GAF score of 65; the examiner described the severity of the Veteran’s psychiatric disorder as moderate to severe.  
Collectively, the pertinent medical evidence of record during the period in question reflects that the Veteran’s PTSD symptomatology included chronic sleep impairment due to recurring nightmares, flashbacks, intrusive thoughts of Vietnam and anxiety.  It is noteworthy that the Veteran's treating psychologist found that the Veteran's PTSD was moderate in nature.  Such symptomatology is best reflected by the criteria set forth for a 30 percent evaluation.  Therefore, resolving reasonable doubt in his favor, and upon consideration of the short period of time for which the 10 percent was in effect, the Board concludes that the Veteran’s symptoms more nearly approximated a 30 percent disability rating prior to August 15, 2011.  

(ii) Rating in excess of 30 percent from August 15, 2011 through November 21, 2014.
Having determined that a 30 percent disability rating is warranted for the entire period prior to November 21, 2014, the Board will now address whether a rating in excess of 30 percent is warranted for PTSD at any point prior to November 21, 2014.  
After a careful review of the evidence of record the Board finds that an evaluation in excess of 30 percent for PTSD is not warranted.  PTSD does not result in more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  In this regard, the Board notes that, little in the record, including the Veteran's testimony and lay statements, suggest that the criteria for a schedular evaluation in excess of 30 percent are met for the period prior to November 21, 2014.  In reaching its conclusion, the Board has considered the Veteran's statements regarding his PTSD symptoms and their impact on his functioning.  The Veteran testified that he had experienced increased anger, hypervigilance, continued nightmares and anxiety, as well as sleep disturbance.  However, the evidence as a whole does not demonstrate deficiencies supportive of a 50 percent or higher evaluation.  There is no indication of obsessional rituals or other disturbance of thought.  The Veteran is able to communicate appropriately.  While mood disturbance is evident, the Veteran is not shown to suffer from disturbances of motivation and mood that result in reduced reliability and productivity.  It is noteworthy that, following the February 2012, the examiner noted that the Veteran’s PTSD had remained the same.  The diagnosis was PTSD; the Veteran was assigned a GAF score of 65.  The examiner indicated that the Veteran’s PTSD resulted in 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.  A July 2014 treatment note reflects an assessment of PTSD, mild to moderate symptoms.  
In conclusion, the overall disability picture does not approach the criteria for a schedular evaluation of 50 percent or higher for the period prior to November 21, 2014.  The objective record does not demonstrate that the Veteran's documented deficiencies in occupational performance, social interaction, and mood are more consistent with the criteria for a higher evaluation.  Rather, as noted, competent examiners have continued to describe the Veteran’s PTSD as moderate in severity, and have concluded that the PTSD symptoms would result in mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  As such, the Board concludes that the Veteran's overall disability picture is best approximated by a 30 percent evaluation.  In sum, the evidence demonstrates that the Veteran's symptoms do not cause occupational and social impairment of the severity contemplated by the criteria for a 50 percent evaluation.  The GAF scores assigned during the appeal period support no higher than a 30 percent evaluation.  
For the reasons stated above, the Board finds that the Veteran’s symptoms are most consistent with a 30 percent rating prior to November 21, 2014.  The evidence as a whole does not show occupational and social impairment with reduced reliability.  Accordingly, the Board concludes that the preponderance of the evidence is against the claim of entitlement to an evaluation in excess of 30 percent for PTSD, and the benefit of the doubt rule does not apply.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).  



(iii) Rating in excess of 50 percent from November 21, 2014.
Finally, the Board notes that the RO has rated the Veteran's disability as 50 percent disabling form November 21, 2014.  Therefore, the remaining issue is whether a rating in excess of 50 percent is warranted for PTSD from November 21, 2014, the date of the most recent VA psychiatric examination.  That examination clearly shows the Veteran's symptoms had increased in severity, however, the Veteran's symptoms, as evidenced by the November 2014 VA examination report, do not show 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; spatial disorientation; neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships.  See 38 C.F.R. § 4.130, DC 9411 (discussing the evidence necessary for the next higher evaluation of 70 percent).  
It is noteworthy that, following the November 2014 examination, the examiner specifically noted that the Veteran’s PTSD was manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  The pertinent diagnosis was PTSD; he was assigned a GAF score of 65.  The examiner stated that Veteran’s PTSD causes occupational and social impairment with reduced reliability and productivity, which would lead to moderate difficulty in securing employment.  While the Veteran indicated that his social life was nonexistent, he lived with a roommate who he described as his best friend and reported spending time with his grandchildren.  In light of the above clinical findings, and the VA examiner's description of the Veteran's PTSD symptomatology, the Board finds that the Veteran's disability is characteristic of pertinent disability criteria warranting no more than the currently assigned 50 percent rating.  
The Board finds that the evidence of record is totally devoid of any report of symptoms of the same frequency and severity as illogical or irrelevant speech.  There was also no evidence of any symptoms such as thought disorder, psychosis, obsessional rituals, near-continuous panic, impaired intellectual functioning, or impaired judgment of the severity, frequency, and duration contemplated in the higher ratings.  Thus, the Board finds that the evidence does not persuasively show that the Veteran's PTSD symptoms are of such severity to warrant a rating of 70 percent or higher.  Again, no examiner who evaluated the Veteran during this part of the appeal period concluded that the Veteran's PTSD symptoms resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  This is consistent with the evidence of record during this part of the appeal period.  Accordingly, the Board concludes that the Veteran does not meet or nearly approximate the level of disability required for an evaluation in excess of 50 percent for his PTSD for the period from November 21, 2014.  

Extraschedular Rating 
The Board has considered whether referral for an extraschedular rating is warranted for the relevant periods on appeal.  The Board finds that the Veteran's symptoms are contemplated both in kind and degree by the scheduler criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration.  Thus, an analysis is not required in this case.  See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007).  See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board).  
In summary, the Board concludes that an initial rating in excess of 30 percent is not approximated for the period prior to November 21, 2014, and a rating in excess of 50 percent is not warranted for any period on appeal, and that the preponderance of the evidence is against granting higher ratings and against remanding for referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b) for any other period on appeal.  There is no reasonable doubt to resolve in this case.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.  

2. Entitlement to a TDIU
Awards of TDIU are governed, in part, by 38 C.F.R. § 4.16 (a) (2017).  Under that regulation, total disability ratings for compensation can 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: provided that, if there is only one such disability, the disability must be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  See also 38 C.F.R. §§ 3.340, 3.341 (2017).  
Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function.  
In this case, the Veteran is currently service connected for PTSD, rated as 50 percent disabling; migraine headaches, rated as 30 percent disabling, tinnitus, rated as 10 percent disabling, and malaria, hepatitis, and left ear hearing loss, all rated as 0 percent disabling.  The Veteran's combined rating is 70 percent from November 21, 2014.  Thus, the Veteran meets the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16 (a).  
In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91.  
The Board must determine whether the Veteran's service-connected disabilities prevent him from working at substantially gainful employment consistent with his work background and education.  "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  As further provided by 38 C.F.R. § 4.16 (a), "marginal employment shall not be considered substantially gainful employment."  
ignificantly, the record reflects that the Veteran completed three years of college, and the records indicate that he has had experience as a production worker for cable manufacturing.  
Following the May 2011 VA examination, the examiner stated that the Veteran’s PTSD resulted in 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.  Subsequently, during a DBQ examination in February 2012, the examiner reported that the Veteran retired the previous year after 20 years with the ATT plant.  The examiner indicated that the Veteran’s PTSD resulted in 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.  More recently in November 2014, the examiner stated that Veteran’s PTSD causes occupational and social impairment with reduced reliability and productivity, which would lead to moderate difficulty in securing and following a substantially gainful occupation in his usual occupation as a production worker for 20 years until the plant closed in 2010 and the Veteran retired.  
After a thorough review of the evidentiary record, the Board finds that the functional limitation imposed by the Veteran's service-connected PTSD disability does not render him unable to secure and follow a substantially gainful occupation.  The most probative evidence of record, the November 2014 DBQ Examination report, does not demonstrate that the Veteran's PTSD would preclude him from being able to engage in substantially gainful employment.  Similarly, the record does not show that his other service-connected disabilities, acting alone or in conjunction with his PTSD, render him unable to secure or follow a substantially gainful occupation.  
There is no more or as probative evidence that the Veteran's PTSD would prevent him from utilizing the foregoing skills to do work of the nature he previously performed.  
The Court, however, has held that the Board is the entity that determines whether a TDIU is warranted, not the experts.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014) (explaining that "applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner").  The Board's decision rests on all of the relevant and probative evidence.  
In light of the foregoing, it is clear that the Veteran has experienced impairment due to his service-connected PTSD.  However, by the assigned schedular ratings during the appeal period, the Veteran has been compensated for the symptomatology associated with each of his service-connected disabilities.  Thus, impairment of industrial capacity due to service-connected disabilities has already been taken into consideration via the disability ratings assigned.  The evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities.  
As such, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability.  Entitlement to TDIU is thus not established.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied.  38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
Moreover, referral of the TDIU claim to the Director of Compensation Service for extra-schedular consideration is not warranted because the preponderance of evidence is against a finding that the Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation.  
 
JAMES L. MARCH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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