Citation Nr: 1802341 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-29 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for residuals of vaginal trauma, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of trauma to the cervix, to include as secondary to service-connected PTSD. 3. Entitlement to an initial rating in excess of 50 percent for PTSD. 4. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and P.N. ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from April 1987 to June 1987, from October 1988 to June 1989, and from January 1990 to April 1990, with additional National Guard service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2017, the Veteran and her counselor, P.N., testified before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. A request for entitlement to TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but part of an increased rating claim. The Veteran has contended during the pendency of the appeal that she is unable to work due to service-connected PTSD. Thus, the Board finds that a claim for TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for residuals of trauma of the vagina and cervix are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. For the entire initial rating period, the Veteran's PTSD has been manifested by symptomatology more nearly approximating occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as difficulty in adapting to stressful circumstances (including work or a worklike setting). 2. For the entire initial rating period, the Veteran's PTSD has not been manifested by symptomatology more nearly approximating total occupational and social impairment, with deficiencies 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 (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 3. The Veteran's service-connected PTSD has prevented her from finding and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. For the entire initial rating period, the criteria for a higher initial rating of 70 percent, but not greater, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board is granting the Veteran's claim for entitlement to TDIU, the Board need not discuss VA's compliance with the duties to notify and assist the Veteran regarding that claim. Regarding the claim for a higher initial rating for PTSD, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim or if there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication, and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the most recent RO adjudication of the issue, which occurred in the May 2017 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran allowed a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. VA has obtained a VA medical examination report, which provides probative evidence regarding the severity of the Veteran's PTSD. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). PTSD Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two ratings are potentially applicable, 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 (2017). In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21 (2017). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3 (2017). A Veteran's entire history is to be considered when assigning ratings. 38 C.F.R. § 4.1 (2017). Separate ratings can be assigned for separate periods of time during the claim period based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is service connected for PTSD related to an in-service sexual assault. During the entire increased rating period, the Veteran's PTSD has been rated under Diagnostic Code 9411, which uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted where the evidence shows occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. A 30 percent rating is warranted where the evidence shows 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). A 50 percent rating is warranted where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where the evidence shows 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); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted where the evidence shows total occupational and social impairment, with deficiencies 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 (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders (2017). In adjudicating a claim for a higher rating, the VA adjudicator must consider all symptoms of a claimant's service-connected mental conditions that affect the level of occupational or social impairment. In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms or effects that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples or symptoms like or similar to the Veteran's psychiatric disability symptoms in determining the appropriate schedular rating assignment. Although the Board may note which criteria have not been met, the Board has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for psychiatric disability. Mauerhan v. Principi, 16 Vet. App. 436 (2002). During the initial rating period, the Veteran has reported working at multiple jobs, usually for only a few hours on any given day. The Veteran indicated that she was either fired or had to leave almost every job, because she had difficulty working with coworkers and did not respect authority figures, especially if they were men. The Veteran indicated that, were she to work around a man, she would be prone to "explode" at any provocation. She stated that she would also yell at female coworkers in times of stress. The Veteran indicated that, due to her inability to work with others, she had been unable to maintain either a full-time or a steady part-time position. As a result, she had experienced a recent bout of homelessness. At the September 2017 hearing, the Veteran indicated that her only current employment was acting as a caregiver for an autistic child for five hours per week. The Veteran stated that she got that position because she had known the child's family for 10 years. She stated that she would watch him as he used an electronic device or played music for him, but was not expected to attempt to teach the child any lessons or skills. She stated that she was essentially acting as a babysitter. She also indicated that she had signed up for dog grooming courses, but had been skipping them because she felt anxious being in a small space with a crowd of people. The Veteran has denied being able to have personal relationships with men, to include her brother, due to PTSD. The Veteran has reported maintaining two or three close friendships with other women, to include her sister. She reported living in an apartment alone with a service dog that accompanies her to appointments, on the bus, and grocery shopping. In a May 2017 letter, a VA social worker reported working with the Veteran since October 2015. The social worker stated that the Veteran could maintain employment, but only if it did not require her to work more than 25 hours per week and involved a staggered schedule. The social worker indicated that the Veteran's stress levels appeared to correlate with the number of hours she worked. The social worker remarked that the Veteran would have less tolerance for stressors when working many hours a week. The social worker also stated that the Veteran had hoarding issues that sometimes put her housing in jeopardy. The social worker reported that housing problems caused the Veteran to experience anxiety. The social worker stated that the Veteran needed assistance to minimally pass housing inspections. The social worker stated that the Veteran had some strengths, including an ability to attend scheduled appointments that would vary based on her stress levels. Based on the evidence, the Board finds that, for the entire initial rating period, the Veteran's PTSD has been manifested by symptomatology more nearly approximating that required for a next higher 70 percent rating under the relevant diagnostic code. Specifically, the Veteran's PTSD has more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as difficulty in adapting to stressful circumstances, including work or a worklike setting. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The record indicates that the Veteran has great difficulty adapting to situations she finds stressful, to include working more than a few hours per day, a few days a week. The record also indicates that the Veteran has a great deal of difficulty working under supervision, to especially supervision provided by males. The Veteran has reported having difficulty maintaining relationships and having only two or three friends. The Veteran also reported having difficulty maintaining relationships of any sort with males. The Veteran has also experienced difficulties with housing, because of her inability to maintain employment and her hoarding tendencies. For the entire initial rating period, the Board finds that the Veteran's PTSD disability has not been manifested by symptomatology more nearly approximating that required for the maximum 100 percent rating under the appropriate diagnostic code. Specifically, the Veteran's psychiatric disability symptomatology has not more nearly approximated total occupational and social impairment, with deficiencies 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 (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). During the initial rating period, the Veteran has not demonstrated any deficiencies in the ability to communicate with others. The Veteran has not demonstrated a gross impairment in her thought processes. The Veteran has not reported having any persistent delusions or hallucinations. Although the Veteran has admitted to yelling at coworkers when stressed, that behavior does not meet the standard of the grossly inappropriate behavior contemplated by the criteria for a 100 percent rating. The Veteran has not indicated that she is a danger to herself or others, as she has not physically attacked anyone during the pendency of the appeal and has repeatedly denied having any suicidal ideation. Despite having hoarding tendencies, the Veteran has demonstrated an ability to perform the activities of daily living, including maintenance of personal hygiene. The Veteran has not demonstrated any disorientation to time or place, and has not demonstrated memory loss to such an extent that she has forgotten the names of her close relatives, her own occupation, or her own name. As the Veteran has been able to maintain a few friendships, she has not been shown to have total social impairment. As the Veteran has been able to gain and maintain some employment, even if only for a few hours per week, she has not been shown to have total occupational impairment. Therefore, for entire initial rating period, the Veteran's PTSD symptomatology did not more nearly approximate the total occupational and social impairment required for the maximum 100 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). For the entire initial rating period, the Veteran's PTSD was manifested by symptomatology more nearly approximating that required for a next higher 70 percent rating, but no greater, under Diagnostic Code 9411. The Board finds that the preponderance of the evidence is against a claim for an even higher rating than 70 percent and any claim for such a rating must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered whether referral for consideration of an extraschedular rating is warranted for the Veteran's PTSD. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2017). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds the evidence in this case does not show such an exceptional disability picture that the available schedular rating for the service-connected PTSD is inadequate. A comparison between the levels of severity and symptomatology of the Veteran's disability with the established criteria found in the Rating Schedule shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. The Veteran's signs and symptoms, and their resulting impairment on her occupational and social activities, are contemplated by the rating schedule. Therefore, those criteria are not inadequate. 38 C.F.R. § 3.321(b) (2017); Thun v. Peake, 22 Vet. App. 111 (2008). During the initial rating period, the Veteran's PTSD has been manifested by symptomatology more nearly approximating occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as difficulty in adapting to stressful circumstances (including work or a worklike setting). Notably, those signs and symptoms, and their resulting impairment, are the symptoms and effects of a psychiatric disability contemplated by the rating schedule. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Accordingly, the rating criteria contemplate the Veteran's service-connected psychiatric disability symptoms. In the absence of evidence that the rating criteria are inadequate to rate the Veteran's PTSD, the Board finds referral for consideration of the assignment of an extraschedular rating is not warranted. 38 C.F.R. 3.321(b)(1) (2017); Bagwell v. Brown, 9 Vet. App. 237 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). TDIU Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, that disability is rated 60 percent or more, or, if there are two or more disabilities, there is at least one disability rated at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). As the Veteran has been assigned a 70 percent rating for PTSD, the Board finds that she meets the schedular criteria for consideration for TDIU. The Veteran's psychiatric disability symptomatology is not of such severity as to cause total occupational impairment. However, the evidence indicates that the Veteran's PTSD is of such severity as to cause her great difficulty in adapting to stressful circumstances (including work or a worklike setting). The Veteran has reported being unable to handle the stress of working at anything other than a part-time job. The Veteran also reported having a great deal of difficulty dealing with any authority figures. In the May 2017 letter, a VA social worker indicated that the Veteran could work, at most, 25 hours per week with a staggered schedule. The social worker further indicated that the Veteran could not work a greater number of hours than 25 because it would be too stressful for her mentally. Considering that evidence, the Board finds that the Veteran's PTSD prevents the Veteran from finding and maintaining substantially gainful employment. Therefore, the Board finds that entitlement to TDIU due to the Veteran's PTSD symptomatology must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER For the entire initial rating period, the criteria for a higher initial rating of 70 percent, but not greater, for PTSD is granted. Entitlement to TDIU is granted. REMAND The Veteran essentially claims that she incurred vagina and cervix trauma during an in-service sexual assault. The Veteran maintains that she still experiences pain in the vagina and cervix. Service medical records, dating from January to March 1990, indicate treatment for vaginitis, diagnosed as related to a bacterial infection. Post-service medical records contain few notations regarding diagnoses or treatment for vagina or cervix disabilities. However, in an October 2016 VA treatment record, a VA examiner diagnosed atrophic vaginal atrophy and a pelvic floor muscle spasm. The examiner stated that the muscle spasm was "likely a response to a history of trauma." The examiner attempted to visualize the cervix, but could not because the Veteran's pain was too great to allow the speculum to be opened. In a subsequent January 2017 VA treatment record, a VA examiner again indicated that a visual examination of the cervix could not be completed, as the Veteran could not tolerate the opening of the speculum. A remand is necessary to schedule an examination of the vagina and cervix to determine the nature and etiologies of any current disabilities. If the Veteran cannot tolerate an examination, medical opinions regarding the etiologies of any already diagnosed disabilities should be procured. Accordingly, the claims are REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested. 1. After obtaining any necessary releases, obtain and associate with the claims file all outstanding records of treatment for the claimed vagina and cervix disabilities. Associate all records or responses received with the record. All efforts to obtain records should be fully documented. At a minimum, obtain all outstanding VA records. 2. Then, schedule the Veteran for an examination to be performed by a qualified VA medical doctor to determine the etiologies of any current vagina or cervix disability. As the Veteran has indicated experiencing difficulty around male authority figures due to service-connected PTSD, if possible, the examination should be scheduled with a female doctor. If the examination cannot be completed for any reason, to include due to pain or anxiety on the part of the Veteran, provide the Veteran's claims file to a qualified VA medical doctor for the requested opinions. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the in-service diagnoses of vaginitis; the post-service notations regarding atrophic vaginal atrophy and a pelvic floor muscle spasm; and the Veteran's lay statements regarding the claimed disabilities. A complete rationale should be provided for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, if possible, and all clinical findings should be reported in detail. The examiner is asked to provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any vaginal disability noted during the pendency of the appeal, dating to May 2014 (to include vaginal atrophy and a pelvic floor muscle spasm), was incurred in or caused by service, to include as related to an in-service diagnoses of vaginitis? (b) Is it at least as likely as not (50 percent or greater probability) that any vaginal disability noted during the pendency of the appeal, dating to May 2014 (to include vaginal atrophy and a pelvic floor muscle spasm), was caused or aggravated beyond its normal progression by service-connected PTSD? (c) Is it at least as likely as not (50 percent or greater probability) that any cervix disability noted during the pendency of the appeal, dating to May 2014, was incurred in or caused by service, to include as related to the in-service diagnoses of vaginitis? (d) Is it at least as likely as not (50 percent or greater probability) that any cervix disability noted during the pendency of the appeal, dating to May 2014, was caused or aggravated beyond its normal progression by service-connected PTSD? 3. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs