KIDNEY DISEASE OF

Summary

The veteran, who served from August 1968 to September 1970, appeals the denial of an increased rating for residuals of prostate cancer and PTSD, and the grant of TDIU prior to November 25, 2016. The Board denied an increased rating for prostate cancer residuals, finding the evidence most consistent with a 20 percent rating, as the criteria for higher ratings were not met. For PTSD, the Board granted a 70 percent rating prior to November 25, 2016, applying the benefit of the doubt due to conflicting evidence regarding occupational and social impairment. However, the Board denied an increased rating above 70 percent for PTSD from November 25, 2016, forward, finding total occupational and social impairment was not demonstrated. The Board granted TDIU prior to November 25, 2016, finding the veteran unable to secure or follow substantially gainful employment due to his service-connected disabilities, specifically citing his PTSD and prostate cancer residuals, and noting a vocational expert's opinion that his combined disabilities prevent him from performing substantially gainful employment. The Board relied on the veteran's testimony, lay statements, multiple VA examinations, and a vocational expert's opinion, ultimately granting the TDIU and a 70 percent rating for PTSD while denying the increased rating for prostate cancer residuals.

Rationale

Evidence most consistent with 20% rating.; Criteria for higher ratings not met.; No demonstration of renal dysfunction or severe voiding dysfunction.

Full Decision Text

Citation Nr: 18114979
Decision Date: 06/28/18	Archive Date: 06/28/18

DOCKET NO. 12-27 320
DATE:	June 28, 2018
ORDER
Entitlement to a disability rating in excess of 20 percent for residuals of prostate cancer is denied.
Entitlement to a disability rating of 70 percent, but not greater, for posttraumatic stress disorder (PTSD), prior to November 25, 2016, excluding the period from July 17, 2012 to August 31, 2012 during which a total temporary disability rating is awarded under 38 C.F.R. § 4.30 based on hospitalization requiring convalescence, is granted, subject to the regulations governing the award of monetary benefits.
Entitlement to a disability rating in excess of 70 percent for PTSD, from November 25, 2016, is denied.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to November 25, 2016, is granted, subject to the regulations governing the award of monetary benefits.
FINDINGS OF FACT
1. The Veteran’s residuals of prostate cancer have been manifested by urinary frequency with daytime voiding interval between one and two hours and nighttime awakening to void no more than four times per night.  Changing of absorbent materials more than four times a day has not been shown.
2. Throughout the rating period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in most areas.
3. The evidence of record demonstrates that, prior to November 25, 2016, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with him education and occupational experience.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 20 percent for residuals of prostate cancer have not been met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.115(a), 4.115(b), Diagnostic Codes 7527, 7528 (2017).
2. The criteria for a disability rating of 70 percent, but not greater, for PTSD, prior to November 25, 2016, excluding the period from July 17, 2012 to August 31, 2012, have been met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).
3. The criteria for entitlement to a disability rating in excess of 70 percent for PTSD, from November 25, 2016, have not been met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).
4. The criteria for entitlement to a TDIU, prior to November 25, 2016, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1968 to September 1970.  
In May 2013, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.
Increased Rating
Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2017).
Evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder.  However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58
 that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2017).
Evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder.  However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.
Regulations require that where there is a question as to which of two ratings is to 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.  38 C.F.R. § 4.7.
1. Entitlement to a disability rating in excess of 20 percent for residuals of prostate cancer.
The Veteran’s residuals of prostate cancer are rated under Diagnostic Codes 7527, 7528.  See 38 C.F.R. § 4.115b (2017).  Under Code 7528, malignant neoplasms of the genitourinary system warrant a 100 percent rating.  However, a note to the code states that following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months.  Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e).  If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 
38 C.F.R. § 4.115a provides that a 30 percent rating is warranted for renal dysfunction where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Code 7101. A 60 percent rating is assigned for renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension, at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is assigned for renal dysfunction characterized by persistent edema and albuminuria with BUN 40 to 80 mg percent; or, creatinine 4 to 8 mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A total (100 percent) rating is assigned for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following; persistent edema and albuminuria; or, blood urea nitrogen (BUN) more than 80 mg percent; or, creatinine more than 8 mg percent; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a.
Voiding dysfunction is rated as urine linkage, frequency, or obstructed voiding.  A 20 percent rating is assigned for the disability that requires the wearing of absorbent materials which must be changed less than two times per day.  A 40 percent rating is assigned for disability requiring the wearing of absorbent materials which must be changed two to four times per day.  A 60 percent rating is assigned for disability requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.  38 C.F.R. § 4.115a.
Urinary frequency is rated 20 percent disabling when there is a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating contemplates a daytime voiding interval of less than one hour or awakening to void 5 or more times per night. 38 C.F.R. § 4.115a
A January 2012 VA prostate cancer examination report noted the Veteran had a voiding dysfunction as residuals of
 four times per day.  A 60 percent rating is assigned for disability requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.  38 C.F.R. § 4.115a.
Urinary frequency is rated 20 percent disabling when there is a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating contemplates a daytime voiding interval of less than one hour or awakening to void 5 or more times per night. 38 C.F.R. § 4.115a
A January 2012 VA prostate cancer examination report noted the Veteran had a voiding dysfunction as residuals of treatment for prostate cancer.  The voiding dysfunction caused urine leakage but did not require daily absorbent material.  He infrequently used then, about weekly, if going out of his home and could not be close to restroom facilities.  He only noted a small amount of leakage.  He occasionally wore absorbent material during sleep if he sensed he has not fully emptied his bladder.  When used, it required changing less than two times in one day.  The voiding dysfunction did not require the use of an appliance; it caused increased urinary frequency consisting of daytime voiding interval between one and two hours and nighttime awakening to void two times.  It also caused obstructed voiding with hesitancy (no marked hesitancy).  The Veteran denied a history of recurrent symptomatic urinary tract or kidney infections.  The examiner found that the major impact on occupational functioning due to the Veteran’s prostate cancer residuals would be that because of his urinary frequency he would need to be in a setting where he has easy access to restroom facilities on a frequent as needed basis.
A September 2016 VA prostate cancer examination report noted the Veteran stated that he wore a pad at night.  The voiding dysfunction caused urine leakage and required the use of absorbent material which must be changed less than two times a day.  The voiding dysfunction did not require the use of an appliance; it caused increased urinary frequency consisting of daytime voiding interval between one and two hours and nighttime awakening to void two times.  It also caused obstructed voiding with hesitancy (no marked hesitancy), slow stream (not marked slow), weak stream (not markedly weak), and decreased force of stream (not markedly decreased force of stream).  The Veteran had no other obstructive symptoms. He denied a history of recurrent symptomatic urinary tract or kidney infections.  The examiner found that the Veteran’s prostate disability impacted his ability to work because he needed to have access to a bathroom because of frequent and slow urination.
These findings are most consistent with the 20 percent rating assigned.  Without demonstration that the Veteran has renal dysfunction, voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day or urinary frequency manifested by daytime voiding interval of less than one hour or awakening to void five or more times per night, the service-connected residuals of prostate cancer do not meet the criteria for assignment of a rating in excess of 20 percent for the entire period on appeal.  Accordingly, a rating in excess of 20 percent for residuals of prostate cancer must be denied.
2. Entitlement to a disability rating in excess of 50 percent prior to November 25, 2016 and in excess of 70 percent from November 25, 2016 for PTSD, excluding the period from July 17, 2012 to August 31, 2012.
The Veteran’s PTSD is evaluated as 50 percent disabling prior to November 25, 2016, and as 70 percent disabling beginning November 25, 2016, under Diagnostic Code 9411.  38 C.F.R. § 4.130, Diagnostic Code 9411.  Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders.
Under the General Rating Formula, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411.
A 70 percent rating is warranted when there is 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 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.  38 C.F.R. § 4.130, Diagnostic Code 9411.
A 70 percent rating is warranted when there is 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.
The maximum schedular rating of 100 percent is warranted when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name.  Id.
In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a) (2017).  The rating agency shall assign a rating based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.  Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating on the basis of social impairment.  38 C.F.R. § 4.126(b).
The Board notes that with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms.  However, the use of the phrase “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 only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).
In rendering the decision below, the Board has relied, at least in part, on Global Assessment of Functioning scale (GAF) scores that mental health professionals have assigned to evaluate the Veteran. The GAF score is based on all of the Veteran’s psychiatric impairments.  A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).  A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with coworkers).  A GAF score of 61-70 represents mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.
While particular GAF scores are
essional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with coworkers).  A GAF score of 61-70 represents mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.
While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran’s disability and assigning disability ratings.  However, they are just one of many factors considered when determining a rating.
Effective August 4, 2014, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replaced them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  See 79 Fed. Reg. 149, 45094 (August 4, 2014).  The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014.  The provisions of this interim final rule apply to claims that had been certified for appeal to the Board prior to August 4, 2014.  VA adopted as final, without change, the interim final rule, effective March 19, 2015.  80 Fed. Reg. 53, 14308 (March 19, 2015).  This appeal was certified to the Board in March 2013.  As such, the provisions of DSM-5 are not for application.
During a December 2010 VA examination, the Veteran reported that he was currently unable to work since May 2010 because he had been cited for logbook violations.  He related that since he had not been working, he experienced a resurgence of PTSD symptoms.  He was single and continued to be estranged from some of his children and grandchildren although he enjoyed time with his grandchildren.  He stated he had a few close and trusted friends.  On mental status examination, the Veteran was cooperative and had adequate eye contact.  He had no impairment of thought process or communication.  No delusions or hallucinations were shown.  The Veteran had the ability to maintain minimal personal hygiene and other basic activities of daily living.  He was fully oriented, with no memory impairment.  He had no obsessive or ritualistic behaviors.  His speech was coherent and logical but circumstantial at times.  He endorsed anxiety, anger, and sadness.  There were no panic attacks.  He also reported problems with sleep and emotional regulation.  The diagnosis was chronic PTSD, with overall predominantly mild symptomatology but, more recently (since May 2010), predominantly moderate symptomatology, consisting of hyperarousal.  It was noted that overall, with regard to PTSD and depression, there was reduced reliability in productivity due to PTSD symptomatology.  The Veteran did not sleep well; disturbed and disrupted sleep led to problems with daytime mood regulations and a tendency to experience surges in irritability, anger, anxiety/stress and depression.  In an effort to cope with reexperiencing and hyperarousal symptoms, the Veteran attempted to avoid or numb out.  At present, the Veteran tried to keep busy through odd side jobs, doing home repair, and visiting with the grandchildren.  
VA psychiatry notes dated May 2011 through January 2018 reflect that the Veteran has attended PTSD group therapy.  He reported to be socially isolative due to anger problems, emotional numbing, avoidance, problems with excessive startle reactions, flashbacks, intrusive memories, and hypervigilance.  On mental status examinations, the Veteran appeared neat and cooperative.  He was alert and fully oriented.  His mood was often depressed and his affect was appropriate.  He frequently felt guilty with memories of a fellow Marine who died during an explosion.  His thought process was normal, coherent, and tangential.  There was no suicidal or homicidal ideation.  He had limited insight and impaired judgment.  The diagnoses were chronic PTSD, major depression.
An August 2012 PTSD Disability Benefits Questionnaire noted diagnoses of chronic PTSD, major depression, alcohol abuse, and history of substance abuse.  The examiner found that the Veteran had occupational
 problems with excessive startle reactions, flashbacks, intrusive memories, and hypervigilance.  On mental status examinations, the Veteran appeared neat and cooperative.  He was alert and fully oriented.  His mood was often depressed and his affect was appropriate.  He frequently felt guilty with memories of a fellow Marine who died during an explosion.  His thought process was normal, coherent, and tangential.  There was no suicidal or homicidal ideation.  He had limited insight and impaired judgment.  The diagnoses were chronic PTSD, major depression.
An August 2012 PTSD Disability Benefits Questionnaire noted diagnoses of chronic PTSD, major depression, alcohol abuse, and history of substance abuse.  The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  Currently, the Veteran experienced symptoms of depressed mood, anxiety, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and impairment impulse control, such as unprovoked irritability with periods of violence.  The Veteran was capable of managing his financial affairs.
A September 2012 VA examiner noted the Veteran’s level of occupational and social impairment with regard to his mental diagnosis is best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The examiner stated that the Veteran’s PTSD diagnosis was primarily responsible for his occupational and social impairment.  The Veteran lived alone.  He had been married and divorced three times.  He had been dating women and had several close friends.  He had pretty good relationships with his daughters except for the oldest one.  He was currently doing any jobs that people asked him to do, mostly manual labor type jobs.  His last full-time job was long distance truck driving hauling hazardous material.  He continued to attend PTSD group therapy once per week and take medications.  On mental status examination, the Veteran was dressed and groomed appropriately.  His mood was irritable and his affect was congruent.  His thought process was generally goal directed and thought content had no preoccupations/obsessions/delusions/suicidal or homicidal ideation.  He was fully oriented but had problems with attention and concentration.  His insight was within normal limits and his judgment depended on the stress level.  Currently, he experienced symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood.  The Veteran was capable of managing his financial affairs.  
A June 2015 VA examination report noted diagnoses of chronic PTSD, personality disorder with antisocial narcissistic features, and alcohol use disorder, mild to moderate.  The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation.  The examiner noted the Veteran’s personality disorder was the major contributor to his occupational and social impairment, not PTSD.  The Veteran was single and living alone.  He had not worked since driving a truck long distance in 2010.  He tried working driving a truck for a friend, two months previously, but it only lasted one day and he got into a fight with another person at a red light.  He reported mental health problems of violence, memories, reclusiveness, harm, guilt, and retribution.  The Veteran experienced depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships.  On mental status examination, the Veteran appeared disheveled and unshaven.  His mood was irritable, angry, and anxious, with congruent affect.  His perceptions were unremarkable.  He was fully oriented, with mild problems with attention and concentration, and poor insight.  His judgment depended on alcohol use and stress level.  He was capable of managing his financial affairs.  The Veteran spent his day doing home repairs, home maintenance, yardwork, and gardening.  He spent time with his grandchildren, which he enjoyed very much.  He did all of his own household chores.  The examiner provided an opinion that from a psychological perspective only, the Veteran had sufficient intelligence, memory, ability to follow instructions, abstract thinking ability, analytical thinking skills, and fine motor coordination.  The examiner noted the job the Veteran would do best would be a job where he works alone or has some degree of freedom of when the job gets done.  
A November 2016 VA examination report noted a diagnosis of PTSD with associated severe depression, moderate anxiety, and alcohol abuse in remission.  The examiner indicated that the Veteran did not have more than
 day doing home repairs, home maintenance, yardwork, and gardening.  He spent time with his grandchildren, which he enjoyed very much.  He did all of his own household chores.  The examiner provided an opinion that from a psychological perspective only, the Veteran had sufficient intelligence, memory, ability to follow instructions, abstract thinking ability, analytical thinking skills, and fine motor coordination.  The examiner noted the job the Veteran would do best would be a job where he works alone or has some degree of freedom of when the job gets done.  
A November 2016 VA examination report noted a diagnosis of PTSD with associated severe depression, moderate anxiety, and alcohol abuse in remission.  The examiner indicated that the Veteran did not have more than one mental disorder diagnosed, and described the Veteran as having occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and/or mood with regard to his mental diagnosis.  The Veteran reported that he continued to live on his own.  He had one female friend but stated that he was not looking for a real relationship.  He had decent relationships with all of his children and a more civil relationship with his ex-wife.  He had been unemployed since he stopped working as a truck driver.  
The Veteran experienced depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, impaired judgment and abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; suicidal ideation; impaired impulse control; and neglect of personal appearance and hygiene.
On mental status examination, the Veteran was alert and fully oriented.  His thinking was logical and goal-directed.  His speech was fluent and auditory comprehension appeared intact.  His mood was dysthymic and congruent, and his affect was constricted.  He was cooperative, polite, and engaged.  He exhibited intact insight and deficit awareness.  There was no hallucinations or other indication of formal thought disorder.  He reported passive suicidal ideation without intent or plan.  He denied homicidality and did not present as a risk to himself or others.  He was capable of managing his financial affairs.  
Giving the Veteran the benefit of the doubt, the Board finds that a 70 percent rating is warranted throughout the entire rating period on appeal.  The December 2010 VA examiner noted that the Veteran had predominantly moderate PTSD symptomatology, consisting of hyperarousal, since May 2010.  However, a health care provider’s characterization of the severity of disability is not dispositive absent corroborating symptomatology, but it is probative evidence that the Board may take into consideration.  The Board finds that the medical evidence reflects that overall, the Veteran’s PTSD symptoms caused occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking and mood.  Specifically, a January 2012 VA general medical examination report notes that the Veteran’s PTSD was the major factor affecting his work ability, due to difficulty with concentration, frustration, anger, and difficulty dealing with people.  It is consistent with the December 2010 VA examination report showing the Veteran’s symptoms of irritability or outburst of anger, hypervigilance, exaggerated startle response, depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbance of mood and motivation.  VA psychiatry notes dated from May 2011 also note that the Veteran had limited insight and impaired judgment.  As such, the Veteran’s mental health issues have caused functional impairment in social and occupational functioning with deficiencies in most areas of his life, to include work, social relationships, judgment, thinking and mood as detailed above in this report, since at least May 2010.  While the Veteran did not express many symptoms indicative of a 70 percent rating (obsessive rituals, abnormal speech, near-continuous panic or depression, spatial disorientation, neglect of personal appearance and hygiene), he expressed severe impairment in his ability to function around others, affecting both his occupational and social life.  The Board finds that, giving the Veteran the benefit of the doubt, his overall disability picture is best represented by a 70 percent rating.  38 C.F.R. § 4.130, Diagnostic Code 9411.
However, the Board finds that at no point during the period on appeal is a rating higher than 70 percent warranted.  There is no indication that the Veteran has had symptoms indicative of a 100 percent rating, such 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, disorientation to time or place or memory loss for names of close relatives, own occupation or own
.  The Board finds that, giving the Veteran the benefit of the doubt, his overall disability picture is best represented by a 70 percent rating.  38 C.F.R. § 4.130, Diagnostic Code 9411.
However, the Board finds that at no point during the period on appeal is a rating higher than 70 percent warranted.  There is no indication that the Veteran has had symptoms indicative of a 100 percent rating, such 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, disorientation to time or place or memory loss for names of close relatives, own occupation or own name.  VA examinations reveal that the Veteran has no impairment in thought process or communication.  He is able to maintain personal hygiene and capable of managing his financial affairs.  He did all of his own household chores.
Further, in reviewing the medical evidence as a whole, the Board finds that functional impairment comparable to total social and occupational impairment has not been shown in this case.  Here, the evidence of record shows that the Veteran has had good relationships with most of his daughters and enjoyed time with his grandchildren.  He stated he had a few close and trusted friends.  Therefore, to the extent that social impairment was not destructive to his family life, the evidence does not demonstrate total social impairment.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.
Accordingly, while the Veteran has shown substantial social and occupational impairment, the evidence does not demonstrate total social and occupational impairment.  See id.
In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a rating in excess of 70 percent for the Veteran’s PTSD, the doctrine is not for application.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
3. Entitlement to a TDIU prior to November 25, 2016.
A veteran may be awarded TDIU benefits if she is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).  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 age or to impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2017).
If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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.  38 C.F.R. § 4.16(a).  Service connection is in effect for PTSD, now rated as 70 percent disabling for the entire rating period under appeal; residuals of prostate cancer, rated as 10 percent disabling prior to January 10, 2012 and as 20 percent disabling from January 10, 2012; tinnitus, rated as 10 percent disabling from January 5, 2011; bilateral hearing loss, rated as noncompensable prior to November 19, 2015 and as 10 percent disabling from November 19, 2015; and erectile dysfunction, rated as noncompensable.  As the Veteran’s PTSD is rated as 70 percent for the entire rating period on appeal, he meets the minimum schedular criteria for TDIU throughout the rating period on appeal.  38 C.F.R. § 4.16(a).
VA Form 21-8940 received by VA in August 2016 reflects that the Veteran completed two years of high school and had training in tractor trailer and heavy equipment.  He worked for a company as a truck driver from 2000 to January 2010.  He indicated that he became too disabled to work on May 1, 2010 because of his service-connected PTSD and residuals of prostate cancer.
The record contains conflicting evidence as to whether the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities.
Initially, there is ample evidence demonstrating that the Veteran is unemployable due to his psychiatric disability.  In the December 2010 VA examination report, the Veteran reported that he could not work since May 2010 because he had been cited for logbook violations.
 reflects that the Veteran completed two years of high school and had training in tractor trailer and heavy equipment.  He worked for a company as a truck driver from 2000 to January 2010.  He indicated that he became too disabled to work on May 1, 2010 because of his service-connected PTSD and residuals of prostate cancer.
The record contains conflicting evidence as to whether the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities.
Initially, there is ample evidence demonstrating that the Veteran is unemployable due to his psychiatric disability.  In the December 2010 VA examination report, the Veteran reported that he could not work since May 2010 because he had been cited for logbook violations.  Concerning this, a vocational consultant report shows that the Veteran explained that due to his psychiatric struggles, he became a workaholic as he needed to keep busy and keep his mind occupied.  He shared how his led to employment difficulties as he had many Department of Transportation violations, mostly for driving too many hours and log book violations.  He reported that this obsessive work behavior continued to this day as he would begin working on his house and he could not stop, occasionally working on it until the early morning hours.  While he was employed as a commercial truck driver, he struggled with psychiatric difficulty due to symptoms of anger and road rage, which at times resulted in violence and inability to establish and maintain working relationships with coworkers, supervisors, or other drivers on the road.  He stated his PTSD symptoms continued to dominate his life and significantly impacted his ability to follow his work, eventually resulting in his inability to secure and follow any significant or gainful employment.
The Veteran also reported that his ability to follow his work is impacted by his worsening symptoms of voiding dysfunction caused by his service-connected residuals of prostate cancer.  He reports more frequent needs for breaks and longer durations to tend to these needs, severely impacting his ability to log the miles he needed to continued working as a viable truck driver.
The Veteran’s lay statements are competent and credible evidence regarding the effect of the Veteran’s service connected disability on his occupational functioning.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge).  His statements are consistent with the other evidence of record.
To that effect, the November 2016 VA examiner found that the Veteran’s symptoms that interfered with interpersonal relatedness impair his ability to work cooperatively and effectively with co-workers, supervisors, and the public to a severe extent.  The Veteran’s symptoms that interfered with attention, concentration, memory, and problem-solving impaired the Veteran’s ability to understand and follow instructions, retain instructions, communicate effectively in writing, and solve technical or mechanical problems to a mild to moderate extent.  His symptoms that interfered with motivation and drive impaired his ability to maintain task persistence and pace to a severe extent, arrive at work on time to a mild extent, and to work a regular schedule without excessive absences to a severe extent.  The examiner noted that the Veteran’s current symptoms are logically related to and consistent with the traumatic stressors he reported, i.e., multiple combat experiences with fear of hostile military activity.
An October Social Security Administration decision found that the Veteran had severe impairments of PTSD and depression, had the residual functional capacity to perform medium work, and was limited to simple unskilled work in a low stress environment with limited social contact with the general public and with coworkers and only occasional social contact with supervisors; however, due to psychological impairments, he would be unable to maintain attention and concentration for even two hour increments throughout an 8 hour work day.  Considering his age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the Veteran can perform.  Therefore, the Veteran was found disabled with the onset date of May 17, 2010.
The January 2012 VA general medical examiner noted that the Veteran’s service-connected residuals of prostate cancer irrespective of any other conditions would not significantly affect his ability to perform physical or sedentary work.  However, his PTSD and medication side effects have precluded a return to commercial driving.  He had difficulty with concentration, got easily frustrated and easily angered, and had difficulty dealing with people.  He stated he felt that medications caused his drowsiness, dizziness, and confusion at times, which could impact his ability to work at jobs that require full attention to details and alertness.  The examiner stated that the major impact on occupational functioning due to his prostate cancer residuals would be that because of his urinary frequency he would need to be in a setting where he had easy access to restroom facilities on a frequent as needed basis.  
Significantly,
 of any other conditions would not significantly affect his ability to perform physical or sedentary work.  However, his PTSD and medication side effects have precluded a return to commercial driving.  He had difficulty with concentration, got easily frustrated and easily angered, and had difficulty dealing with people.  He stated he felt that medications caused his drowsiness, dizziness, and confusion at times, which could impact his ability to work at jobs that require full attention to details and alertness.  The examiner stated that the major impact on occupational functioning due to his prostate cancer residuals would be that because of his urinary frequency he would need to be in a setting where he had easy access to restroom facilities on a frequent as needed basis.  
Significantly, after reviewing the entire claims file and conducting a comprehensive evaluation in August 2016, a vocational expert opined that it is more likely than not that the Veteran’s combined service-connected psychological and physical disabilities prevent him from securing and following substantially gainful employment since 2010 when he last worked as he could no longer perform all the duties required in his job.
In reaching this conclusion, the expert noted that the Veteran’s educational background was limited to his completion of the tenth grade, CDL driving program, and his over 35 years of vocational history of employment as a truck driver.  Considering these vocational factors, the Board finds that he does not have the transferable skills to perform sedentary work.  Also, given his extensive psychological and physical symptoms due to his service-connected disabilities, as described above, he could not perform sedentary work, even at the unskilled level.
On the other hand, the September 2012 VA examiner opined that from a psychiatric perspective only, the Veteran was able to secure and maintain substantially gainful employment of a skilled or unskilled nature as he had sufficient intelligence, attention/concentration, ability to remember and follow instructions, ability to abstract thinking, and fine motor coordination.  However, the examiner noted that the Veteran would do best working alone or with one co-worker; he would do best with an employer that understood his mental illness, and a low-pressure job with clear expectations and time frames.  He should only have limited interface with the public.
The psychiatrists and vocational expert offered competent opinions based on clinical examinations of, or ongoing treatments of, the Veteran or based on a careful review of the claims file.  See Owens v. Brown, 7 Vet. App. 467 (1993) (noting that VA is free to favor one medical opinion over another provided if there is an adequate basis for doing so).
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Accordingly, giving the Veteran the benefit of the doubt, the Board finds that the evidence establishes that the Veteran has been unable to follow a substantially gainful occupation consistent with his education and occupational experience, due to his service-connected disabilities since 2010.  Accordingly, a TDIU is warranted prior to November 25, 2016.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
LANA K. JENG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. J. In, Counsel