Citation Nr: 18148818 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 10-16 450 DATE: November 8, 2018 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with major depressive disorder and bipolar disorder is granted subject to the laws and regulations governing payment of monetary benefits. A total disability rating due to individual unemployability (TDIU) is granted effective October 11, 2005, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. At all points pertinent to this appeal, the Veteran’s service-connected psychiatric disorders have more nearly approximated occupational and social impairment with deficiencies in most areas, due to such symptoms as the following: intermittent suicidal ideation, paranoia, fear of crowds resulting in panic attacks, isolating herself in her home and preferring to stay in bed, chronic sleep impairment, irritability, near-continuous depression affecting her ability to function independently, and intermittent inability to perform activities of daily living, to include maintenance of minimal personal hygiene. 2. The evidence of record favors a finding that the Veteran’s service-connected psychiatric disabilities prevented her from securing or following gainful employment for the entire period on appeal. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for an initial 70 percent disability rating, but no higher, for service-connected PTSD with bipolar disorder and major depressive disorder, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for a TDIU are met, effective October 11, 2005. 38 U.S.C. § 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Air Force from November 1981 to March 1989. In October 2011, the Veteran was afforded a videoconference hearing before the Board. A transcript of the testimony offered at the hearing has been associated with the file. The Veterans Law Judge (VLJ) who presided over the hearing has since left the Board. The Board sent the Veteran a letter in February 2012 to offer her a new hearing before a VLJ who would ultimately decide her appeal, but she declined. See 38 C.F.R. § 20.707. In June 2012 and June 2016, the Board remanded the matter on appeal for additional evidentiary development. In August 2017, the Board increased the Veteran’s initial rating to 50 percent but denied a rating greater than 50 percent for the entire period on appeal. At that time, the Board also noted that the issue of entitlement to TDIU was raised by the record and remanded the claim for TDIU. The Veteran appealed the Board’s August 2017 denial of a rating greater than 50 percent to the Court of Appeals for Veterans Claims (Court). In April 2018, the Court granted a Joint Motion for Remand. The parties to the Joint Motion requested that the Board not disturb the remanded issue of entitlement to TDIU. To date, the Veteran’s TDIU claim (along with other service-connection claims) have not been returned to the Board by the Agency of Original Jurisdiction (AOJ). In a September 2018 brief, the Veteran’s attorney requested that the Board accept jurisdiction over the issue of entitlement to TDIU at this time, as part and parcel of the increased rating claim for PTSD. See September 2018 brief. Ordinarily, the Board would not accept jurisdiction of an issue that is currently with the AOJ, pending development and readjudication per a prior Remand order. In this case however, the Veteran’s TDIU claim was initially raised as part of his PTSD increased rating claim under Rice v. Shinseki, App. 447 (2009). The Board denied the PTSD claim in August 2017, and remanded the TDIU claim as intertwined with other pending service-connection claims that still remain with the AOJ. The Court has since vacated the Board’s PTSD rating denial, and returned the increased rating claim to the Board. The Veteran’s attorney has also submitted additional evidence supportive of both a higher rating for PTSD and a TDIU award based exclusively on PTSD. In light of the change in circumstances following the Court’s vacatur of the Board’s 2017 PTSD denial, the Court’s holding in Rice, and the fact that the Board can now grant the TDIU claim in full, the Board will accept jurisdiction over the TDIU claim in this case. Entitlement to an initial rating greater than 50 percent for PTSD with bipolar disorder and major depressive disorder. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected psychiatric disabilities are rated under Diagnostic Code 9411. Under the rating schedule, a 10 percent rating is warranted for 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. 38 C.F.R. § 4.130. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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. 38 C.F.R. § 4.130, DC 9411. A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). When evaluating a psychiatric disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a psychiatric disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). Separate ratings for the Veteran’s psychiatric disorders are not permissible as they are all rated under the General Rating Formula for Psychiatric Disabilities. The Veteran does not assert otherwise. In this case, the Veteran was assigned an initial disability rating of 10 percent for her psychiatric disorders but the Board increased the initial rating to 50 percent in August 2017. As discussed above, the Veteran appealed that determination, seeking a higher rating. In the September 2018 brief, the Veteran’s attorney asserted that the Veteran’s psychiatric symptoms warrant a 70 percent disability rating for the entire period on appeal. For the reasons explained below, the Board agrees. The August 2018 private psychological evaluation and retrospective opinion noted that the Veteran’s service-connected psychiatric disorders rendered her totally occupationally and socially impaired since prior to 2005. See August 2018 private psychiatric evaluation. The psychologist explained that the determination was based upon the evidence demonstrating the Veteran’s intermittent inability to perform activities of daily living, to include maintenance of minimal personal hygiene as well as intermittent suicidal ideation (present in August 2018), paranoia, fear of crowds resulting in panic attacks, isolating herself in her home and preferring to stay in bed, chronic sleep impairment, irritability, and near-continuous depression affecting her ability to function independently. The examiner concluded that the Veteran’s symptoms were of the frequency and severity to render her totally occupationally and socially impaired. The opinion was based upon a one-hour interview with the Veteran, consideration of the Veteran’s complete claims file, including VA treatment records and lay statements. See August 2018 private psychiatric evaluation. The Board places a high probative value on the August 2018 private opinion and finds it supports an initial, 70 percent disability rating. Although the private psychologist assessed “total” occupational and social impairment, the symptoms cited as relied upon to reach the conclusion, are primarily those symptoms listed as indicative of a 70 percent disability rating, which would indicate social and occupational impairment in “most areas” rather than “total” occupational and social impairment. In addition, as discussed in more detail below, the Veteran has been shown to be capable of maintaining some relationships and responsibilities throughout the appeal period, demonstrative of less than “total” social and occupational impairment. The Board acknowledges that the Veteran demonstrates an inability to maintain personal hygiene throughout the entire period on appeal. Similarly, the lay statements of record also indicate that the Veteran was paranoid in that at times, including having thoughts that her husband was trying to poison her. However, none of the professionals who have examined her have indicated that the Veteran’s paranoia reached the level of the frequency, severity, or duration of “persistent delusions” listed as an example of the 100 percent rating. None of the remaining criteria for the 100 percent rating are met. Further, even considering the Veteran’s reports of intermittent suicidal ideation, which is an example of 70 percent disability rating, the June 2012 and February 2017 VA examiners determined that the Veteran had occupational and social impairment with “reduced reliability and productivity”, which is indicative of the 50 percent rating criteria. The examiners did not indicate that the Veteran had occupational and social impairment in “most areas” which would be indicative of a 70 percent disability rating. Nevertheless, the Board resolves doubt in the Veteran’s favor given her consistent problems with getting out of bed, maintaining personal hygiene, and intermittent suicidal ideation. The Veteran’s symptoms do not reach the frequency, severity, or duration of the type indicative of a 100 percent rating. In this regard, she has not been shown to be in “persistent danger of hurting self or others.” The Board acknowledges the June 2012 VA examination report which noted that the Veteran had “homicidal ideation;” however, the only incidents of that nature noted at the examination were reported to have occurred prior to the effective date of service connection. In this regard, the Veteran consistently reported to multiple VA examiners that she once held a K-bar type knife to a woman’s throat in what she described as self-defense. See December 2009 and June 2012 VA examination reports. She also testified that on another occasion, she wanted to hurt her husband but instead of hurting him, she cut his car tires. See Hearing Transcript page 16. Notwithstanding this one-time action, during the period on appeal the Veteran parented a child, maintained relationships with her husband (albeit strained), mother, and other family members and friends. An August 2011 VA treatment record documented the Veteran’s report that she had custody of her godchild and that she was also helping her niece who had breast cancer. Treatment records and lay statements have consistently noted that although the Veteran may have a strained relationship with her husband, she has been able to maintain a relationship. A July 2013 VA treatment record noted that the Veteran had been kinder toward her husband. At that time, she also reported that she only had bad days 2-3 days per week and had been getting out most of the time. She reported that she had been to casinos with friends, attended family reunions, and hosted a cook out for the holiday. See July 2013 VA treatment record. VA treatment records also indicate that the Veteran went on a trip with a group of women and enjoyed herself and was able to sleep at night. See October 2013 VA treatment record. The same treatment record also discussed another week in which the Veteran had to make herself get out of bed to care for her goddaughter. An April 2017 VA treatment record indicated that the was still married and was planning to support her husband during his upcoming surgery. At that time, she also reported that she was caring for her godchild as well as a puppy. The April 2017 VA treatment record also noted that the Veteran attended group therapy biweekly. The Board does not doubt that interacting with others has been difficult for the Veteran for the entire period on appeal, but the record demonstrates that not only is it possible for the Veteran to engage in relationships, but that she appears to be happier when she gets out of bed and engages with others. The October 2013 VA treatment record noted that the Veteran explored the pros and cons of getting out of bed and was able to realize that having activity increased her mood and feelings about herself. VA treatment records and examination reports consistently demonstrate that the Veteran’s cognitive functioning and thought processes are normal and that she is oriented to time and place. While some memory loss has been shown, there is no indication of memory loss for names of close relatives, own occupation, or own name. There is no evidence of grossly inappropriate behavior. The Board recognizes that the Veteran has struggled with her psychiatric disorders for the entire period at issue, and is herein resolving doubt in her favor to find that she has impairment in “most areas” for the entire period on appeal. However, as she was able to function in relationships with her godchild, niece, and other family members, as well as maintain normal cognitive functioning and thought processes, the Board finds that her symptoms more nearly approximate the 70 percent rating criteria, but no higher. Further, to the extent that she is occupationally impaired, the Board is granting TDIU herein. In reaching the above conclusions, the Board has considered the Veteran’s statements and belief that she is entitled to the highest rating for her service-connected psychiatric disorders. However, for the reasons explained above, the Board finds that the Veteran’s psychiatric symptoms are of the frequency, severity and duration to result in occupational and social impairment in most areas, but no worse. Further, the Veteran’s attorney argued that the Veteran is entitled to a 70 percent disability rating for the entire period on appeal, which the Board is granting herein. For these reasons, the Board resolves doubt in the Veteran’s favor in finding that an initial, 70 percent disability rating is warranted but that a rating greater than 70 percent at any time pertinent to the appeal, is denied. 2. Entitlement to a TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Having granted an initial 70 percent disability rating for the Veteran’s psychiatric disabilities, the Veteran has met the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a), for the entirety of the period under review. The question at issue is whether the Veteran’s service-connected disabilities, in and of themselves, have at least as likely as not, rendered her unable to secure or follow gainful employment at any time during the period under review. The record supports a finding that the Veteran’s service-connected disabilities at least as likely as not prevented substantially gainful employment for the entire period on appeal. In this regard, the August 2018 private psychologist determined that the Veteran’s psychiatric disabilities alone at least as likely as not render her unable to secure and follow substantially gainful employment, and that she has been unemployable since October 2005. In March 2006, the Veteran’s former boss submitted a letter noting that the Veteran had formerly been her part-time employee and had many skills that were an asset but that her psychiatric illness kept her from being able to maintain her position. The employer noted that the Veteran’s nervousness and emotional condition caused the Veteran to be admitted to the hospital for depression. See March 2006 letter from D.W. In April 2010, the Veteran reported that she had tried to get a part time job and that it lasted five months. She reported that she found herself getting sick, paranoid, and suspicious of others. The Veteran also reported that she frequently argued with other employees. See April 2010 Substantive Appeal Form 9. The Veteran also attempted to gain training through VA’s Vocational Rehabilitation and Employment Services (VRES) but was denied. A June 2008 document notes that VRES determined that the Veteran was infeasible for employment or training leading to employment. In July 2008, VRES informed the Veteran of its conclusion and informed her that in reaching the determination, the counselor had considered the Veteran’s ongoing medical history and employment history. The Board places a high probative value on this evidence. In light of the evidence discussed above, the Board finds that the Veteran’s service-connected psychiatric disabilities in and of themselves are so severe as to render the Veteran unable to secure or follow gainful employment for the entire period on appeal. As such, a TDIU is granted effective the date upon which service connection was granted for the psychiatric disabilities, October 11, 2005. V. CHIAPPETTA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel