Citation Nr: 18144744 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-30 566 DATE: October 25, 2018 ORDER For the appeal period prior to April 8, 2016, an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with panic attacks is granted, subject to the laws and regulations governing the payment of monetary awards. For the appeal period prior to April 8, 2016, a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. For the appeal period prior to April 8, 2016, the Veteran’s PTSD with panic attacks is manifested by symptomatology resulting in occupational and social impairment in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. For the appeal period prior to April 8, 2016, resolving all doubt in the Veteran’s favor, her service-connected PTSD with panic attacks rendered her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the appeal period prior to April 8, 2016, the criteria for a 70 percent rating, but no higher, for PTSD with panic attacks have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. For the appeal period prior to April 8, 2016, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2008 to April 2010, September 2010 to December 2010, and September 2011 to July 2012, with additional service in the Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board has also assumed jurisdiction over a claim of entitlement to a TDIU as such has been raised in connection with the Veteran’s initial rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that in a May 2016 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s rating for PTSD with panic attacks to 100 percent, effective April 8, 2016. However, as the Veteran is presumed to seek the maximum available benefit for a disability, and a higher rating for PTSD remains available for the appeal period prior to April 8, 2016, such claim remains viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Furthermore, the claim for a TDIU from April 8, 2016, is considered moot as the Veteran has asserted that her service-connected PTSD with panic attacks is the sole cause of her inability to obtain and maintain substantially gainful employment. Bradley v. Peake, 22 Vet. App. 280 (2008). 1. Entitlement to an initial rating in excess of 30 percent for PTSD with panic attacks prior to April 8, 2016. The Veteran was awarded service connection for PTSD with panic attacks with an initial 30 percent rating, effective July 31, 2012, the day after her discharge from active duty. She contends that such disability is more severe than as reflected by the currently assigned rating and, therefore, a higher rating is warranted for the appeal period prior to the assignment of a 100 percent rating on April 8, 2016. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected PTSD with panic attacks is evaluated under the criteria of DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the general rating formula “indicates that the presence of suicidal ideation alone…may cause occupational and social impairment with deficiencies in most areas.” However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran’s service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). After a review of the record, the Board finds that the Veteran’s PTSD with panic attacks results in, at most, occupational and social impairment with deficiencies in most areas, which is indicative of a 70 percent rating, but no higher, for the appeal period prior to April 8, 2016. In this regard, the Veteran’s post-service VA treatment records indicate that she was experiencing trouble sleeping, depression, difficulties with concentration, anxious mood and affect, anxiety, panic attacks, hypervigilance, startled response, and irritability. See October 2012, December 2012, April 2013, June 2013, and September 2013 VA treatment records. In September 2014, the Veteran was afforded a VA examination. At such time, the examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran reported that she was divorced and was currently engaged to someone she had been with for four years. She also indicated that her relationship with her mother was good as she had been her best friend for her whole life. She further reported that she had long-term friends, but did not have much time to “hang out.” The Veteran also stated that she was a “nervous wreck” and was having problems with irritability. The examiner noted that the Veteran’s symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Thereafter, in October 2014, a physical evaluation board (PED) found that the Veteran was physically unfit to continue military service due to her PTSD. In a February 2015 letter, the Veteran argued that she should have received a higher rating than the 30 percent assigned for her PTSD as she had to quit school, was having trouble with everyday personal care and hygiene, lack of concentration, forgetfulness, depression, anger outbursts, severe anxiety that left her home ridden, and trouble maintaining relationships with family and friends. In a March 2015 letter, the Veteran’s psychiatrist, who had treated her since November 2013, stated that the Veteran’s symptoms included nightmares, difficulty getting and staying asleep, emotional numbness, easy irritability, anxiousness in crowds, anxiety attacks, and difficulty focusing on and finishing other than simple day to day tasks. In a July 2015 counseling record/narrative report for the Vocational Rehabilitation and Employment program (VRE), the clinician noted that the Veteran had to sit with her back to the wall or next to exit, and she could not sit between men she did not know due to her PTSD. The Veteran also had lowered frustration tolerance, inability to concentrate, and decreased memory. The clinician determined that the Veteran had no record of steady, gainful employment outside of military status, and did not possess transferrable skills or educational levels for suitable, gainful employment. Additionally, in an August 2015 memo, a VRE officer noted that the Veteran reported ongoing and severe symptoms pertaining to her PTSD, which was not considered to be stable at that point. The Veteran also had isolation and avoidance tendencies that affected her ability to interact with others, and she experienced difficulty leaving her home for several days after attending appointments. Thus, the VRE officer determined that the achievement of a vocational goal was not feasible at such time. Furthermore, in a January 2016 letter, the Veteran’s clinical counselor, who had treated her since late 2014, noted that the Veteran described having significant distress when interacting with others in a variety of situations. The counselor also noted that this was apparent in the Veteran’s inability to regulate emotions and a low distress tolerance, difficulty in concentrating, processing, and organizing daily life activities, which included, at times, shower and other daily hygiene activities. While the September 2014 VA examiner found that the Veteran’s psychiatric symptomatology resulted in 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, which is consistent with a 30 percent rating, the Board finds that the remainder of the evidence detailed above supports a higher rating of 70 percent for the appeal period prior to April 8, 2016. Specifically, the totality of the evidence reflects that such disability has been manifested by occupational and social impairment in most areas as a result of the Veteran’s psychiatric symptomatology, including depression; desire to isolate herself; irritability; anxiety; exaggerated startle response; difficulty concentrating; memory impairment; sleep impairment; and difficulty in adapting to stressful circumstances including work or a work like setting. However, the Board further finds that such disability does not result in more severe manifestations that more nearly approximate total occupational and social impairment. Specifically, there is no evidence that the Veteran’s PTSD with panic attacks results in symptomatology of intermittently illogical, obscure, or irrelevant speech; gross impairment in thought processes or communication; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or persistent delusions or hallucinations. The Board also notes that there is no evidence of record to suggest that the Veteran has memory loss for names of close relatives, own occupation, or own name. Furthermore, the Board acknowledges the Veteran has experienced occupational and social impairment; however, although the evidence suggests total occupational impairment as will be discussed below, the evidence of record does not show total social impairment resulting from the Veteran’s PTSD with panic attacks. Specifically, the Veteran reported that she had long-term friends even though she was too busy to hang out. Additionally, while she reported conflicts with her mother and fiancé, she maintained a relationship with them throughout the appeal period. Therefore, the Board finds that the Veteran’s PTSD with panic attacks symptomatology is most consistent with a 70 percent rating for the appeal period prior to April 8, 2016. The Board further finds that no staged ratings are warranted as the Veteran’s disability has been consistent throughout the appeal period. See Fenderson, supra. The Board has resolved all reasonable doubt in the Veteran’s favor in reaching all determinations. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Further, neither the Veteran nor her representative has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a TDIU prior to April 8, 2016. The Veteran contends that she is unable to maintain substantially gainful employment due to her service-connected PTSD with panic attacks for the appeal period prior to the assignment of a 100 percent rating for such disability on April 8, 2016. Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice, 22 Vet. App. at 452. Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the instant case, the Veteran filed a separate claim for a TDIU in April 2016, asserting that she was unable to maintain substantially gainful employment due to her service-connected PTSD with panic attacks. Thus, in light of such allegation, such claim was considered part and parcel of her claim for a higher initial rating for her service-connected PTSD with panic attacks, which stems from July 31, 2012, the day after her discharge from active duty. See Rice, supra. Furthermore, as noted in the Introduction, based on the award of a 100 percent rating for the Veteran’s service-connected PTSD with panic attacks as of April 8, 2016, the pertinent matter before the Board is whether a TDIU based on her service-connected PTSD with panic attacks is warranted prior to April 8, 2016. See Bradley, supra. In this regard, the Board notes that the Veteran is also service-connected for bilateral shin splints for the entire appeal period; however, she does not allege, nor does the record reflect, that she is unable to maintain substantially gainful employment due to such disabilities. As an initial matter, the Board notes that as of the decision herein, the Veteran meets the schedular threshold for consideration of a TDIU as her service-connected PTSD with panic attacks is assigned a 70 percent rating for the appeal period prior to April 8, 2016. Furthermore, upon review of the evidence, the Board finds that, after resolving all doubt in the Veteran’s favor, her service-connected PTSD with panic attacks rendered her unable to secure or follow a substantially gainful occupation for the appeal period prior to April 8, 2016. In this regard, the Board notes that the Veteran was separated from active duty on July 30, 2012, and joined the Reserve thereafter; however, the record does not demonstrate that she performed more than marginal work within such unit. Furthermore, as noted previously, the Veteran was medically discharged from the military as the PED found that the Veteran was physically unfit to continue military service due to her PTSD. Additionally, the September 2014 VA examiner noted that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting, due to her PTSD. The Veteran also reported that she stopped attending her college courses as she could not handle everything that was going on at the time. Furthermore, the July 2015 VRE clinician determined that the Veteran had no record of steady, gainful employment outside of military status, and that the Veteran did not possess transferrable skills or educational levels for suitable, gainful employment. Also, the aforementioned August 2015 VRE officer determined that the achievement of a vocational goal was not feasible at such time due to the Veteran’s severe symptoms pertaining to her PTSD. Therefore, based on a review of the foregoing evidence, the Board concludes that the Veteran is entitled to a TDIU for the entire appeal period prior to April 8, 2016. In this regard, the record reflects that her service-connected PTSD with panic attacks hindered her ability to function in a work setting. Thus, resolving all doubt in the Veteran’s favor, the Board finds that the requirements for a TDIU are met for the entire appeal period prior to April 8, 2016. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel