Citation Nr: 18150241 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-23 420 DATE: November 14, 2018 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD), is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD is manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; symptoms productive of total occupational and social impairment have not been shown. 2. The Veteran’s PTSD, which is her only service-connected disability, does not prevent her from securing or following a substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for the Veteran’s service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for the assignment of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the U.S. Army from December 2008 to July 2009. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in higher-rating claims when the issue of unemployability is raised by the record, as explained below. The record on appeal has raised the issue of entitlement to a TDIU. Thus, under Rice, the Board has jurisdiction over the Veteran’s TDIU claim and, for the purpose of clarity, has separately captioned the issue. In May 2018, the Board sent the Veteran a letter requesting that she clarify her representation before VA. She did not respond. Notwithstanding this letter, the Board finds that her representative is properly identified on the title page of this decision. There was some question as to whether all required signatures appeared on her form appointing her representative. This form was signed by her in November 2011, but does not appear in her claims file until a document received in January 2014. However, documents dated after November 2011 (and before January 2014) reflect recognition of her representative and it appears that the form itself was submitted in November 2011, though was apparently misplaced and resubmitted in January 2014. In August 2012, the Board remanded the issues for further development. 1. Entitlement to an initial rating in excess of 50 percent for PTSD. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2018). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2018). Otherwise, the lower rating will be assigned. Id. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected PTSD is rated at 50 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, a 50 percent rating is warranted where the psychiatric condition produces 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). A 70 percent rating is warranted where the psychiatric condition produces 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where the psychiatric condition results in 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. Evaluation under § 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). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21 (2018); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Global Assessment Functioning (GAF) scores of 61-70 indicate some mild symptoms or some difficulty in social, occupational, or school functioning, with the ability to generally function pretty well and have some meaningful personal relationships. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (1994). GAF scores of 51-60 indicate moderate symptoms, such as a flat affect, circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, as evidenced by having few friends and having conflicts with peers or co-workers. Id. GAF scores of 41-50 indicate serious symptoms, such as suicidal ideation, severe obsessional rituals, and frequent shoplifting, or serious impairment in social, occupational, or school functioning, as evidenced by having no friends and being unable to keep a job. Id. GAF scores of 31 to 40 reflect some impairment in reality testing or communications (e.g. speech is at times illogical, obscure, or irrelevant) or 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). Id. It is important to note that a GAF score is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Richard v. Brown, 9 Vet. App. 266, 267 (1996). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Secretary of VA has amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the DSM-IV, and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. However, the amended provisions do not apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the Agency of Original Jurisdiction. The instant appeal was initially certified to the Board in September 2011. Therefore, the amended version of the Schedule for Rating Disabilities is not for application in the instant appeal. The Veteran is currently seeking an initial rating in excess of 50 percent for her service-connected PTSD. After careful review of the evidence, the Board finds that a rating of 70 percent, but no higher, is warranted. In October 2009, the Veteran submitted a letter from a clinical social worker from a Vet Center. The clinical social worker stated that the Veteran described extreme difficulty in managing symptoms of PTSD, and she diagnosed the Veteran with PTSD with acute anxiety. The social worker reported that the Veteran had difficulty managing her daily living. Symptoms included poor sleep patterns, feelings of guilt and shame, some paranoid feelings, nightmares related to the trauma, hypervigilance, loss of appetite, difficulty interacting in small crowds of people. Also, the Veteran had a desire to isolate herself from others. In January 2010, the Veteran had a VA examination for PTSD. The Veteran was diagnosed with PTSD secondary to military sexual trauma. The VA examiner reported that the Veteran’s symptoms were of moderate severity. The Veteran’s anxiety was persistent, but depression was intermittent. The Veteran’s PTSD was assigned a GAF score of 58. The VA examiner reported that the Veteran was not currently working since her recent discharge from service. The Veteran reported that she was sexually assaulted while she was in the military. Her symptoms included poor sleep, feelings of guilt and shame, paranoid feelings, nightmares related to the trauma, hypervigilance, loss of appetite, and difficulty interacting in small crowds of people. Currently, the Veteran lived with her mother and 9-year old son. The Veteran was previously married, but was separated. The Veteran spent her day going to the gym to exercise and tried to engage in activities that would help her keep her mind of what happened. The Veteran reported that she did not drink or use drugs, but she did smoke 1-½ packs of cigarettes per day. The Veteran reported that she managed her own finances and drove. She tended to wear sweatpants and large clothing to hide her body and wear very short hair. The Veteran stated that she did not want to draw any attention to herself. She reported that after her traumatic incident in the military, she became socially avoidant. She described that when she saw black men in uniform, she would have increased sweating and scary thoughts. The Veteran could not breathe; she needed air. The Veteran found it difficult to trust anyone with military connections. She reported disrupted sleep with bad dreams and averaged four to five hours of sleep at night. She woke up quite often. The Veteran had flashbacks, but tried to avoid all triggers that would lead to a flashback. She had problems with crowds during which she experienced heightened anxiety. The Veteran explained that little noises bothered her and set her off. She also had problems with memory and concentration. Her short-term memory was also affected. She also experienced spurts of feeling depressed. The Veteran used to have panic attacks in September and October 2009, but those have receded. She admitted to having suicidal thoughts, but would not follow through because of her son. Upon mental status examination, the Veteran was casually dressed in a sweatshirt and black sweatpants. She was pleasant and cooperative. Her mood was somewhat anxious. Speech was normal, but her mood was anxious. Her thought content and processes were logical and goal-directed. The Veteran denied current suicidal or homicidal ideation. In September 2010, the Veteran submitted a letter from a clinical social worker from a Vet Center. The clinical social worker stated that the Veteran had been a client at the Vet Center since November 2009. Initially, the Veteran presented with severe symptoms related to PTSD. She expressed that she had difficulty managing every day activities, such as taking her son to the barber shop, going to the gym to work out, and interacting with people in general, all symptoms that suggested that her anxiety and anger increased significantly when she engaged with people she did not know or trust. The Veteran also had disturbed sleep patterns. She had frequent nightmares, and when awakened from a nightmare, she often did not return to sleep. The Veteran also took steps to protect herself, such as wearing baggy clothes, cropping her hair very short, and wearing a wedding band to appear married. However, the Veteran realized since then that these measures were false safety factors. However, during an annual training in Minnesota, she was again traumatized due to poor handling of personal and sensitive information about her. Her symptoms had regressed. She had to force herself to interact with her son and felt she should not trust anyone. In June 2011, the Veteran was afforded a VA examination for her PTSD. The Veteran had a diagnosis of moderate, chronic PTSD related to military sexual trauma. The VA examiner assigned the Veteran a GAF score of 55. The Veteran reported that she was unemployed and lived with her mother and her 10-year old son. She was formerly married, but maintained no contact with her ex-husband. She was currently attending a college course in medical terminology. During the time of her previous VA examination in January 2010, the Veteran had symptoms of significant stress, paranoia regarding others looking at her, nightmares related to the trauma, hypervigilance, loss of appetite, and difficulty interacting with other people. The Veteran endorsed significant anxiety, guilt, and shame. The Veteran struggled with intrusive thoughts regarding the aftermath of her incident. She experienced depression and anxiety. The Veteran kept the shades drawn in her home and spent most of her time watching TV. The Veteran avoided driving when possible. She also previously went to the gym, but stopped going when she noticed a man looking at her. The Veteran had a supportive relationship with her mother. Upon mental status examination, the Veteran appeared fully oriented and there was no evidence of disturbance of thought content or processes. The Veteran did not have any delusions or hallucinations. She denied suicidal ideation, but endorsed passive homicidal ideation with no plan or intent. She had intrusive thoughts related to the aftermath of the incident and reported having nightmares and sleep disturbance. The Veteran avoided crowds and did not maintain contact with former acquaintances. The Veteran had a panic attack several months ago and endorsed problems with concentration and attention; however, she was able to maintain focus during her once-per-week course for medical terminology. On her August 2011 VA Form 9, substantive appeal, the Veteran reported that she had issues sleeping throughout the night and was afraid to go to sleep. The Veteran had anxiety and panic attacks at least three times per week. She avoided places with large crowds of people, and stopped going to family reunions because she felt like she could not deal with the men in her family who would be there. The Veteran reported that she did not attend functions with her child, unless she had her mom present. However, she could only tolerate it for 15 to 30 minutes before an anxiety attack. Most of her days were spent in her house where she felt safe. In an October 2012 VA mental health outpatient treatment note, the Veteran reported that recently left her job because she was moved to a position where she was with male support staff, which triggered memories and PTSD symptoms. She also experienced nightmares. The medication she took did not seem to help. The Veteran endorsed passive suicidal ideations, but denied any plan or intent. Her son was a major deterrent to her ever considering suicide. Upon mental status examination, the physician noted that the Veteran was casually and appropriately dressed. However, the Veteran’s mood was depressed and affect was dysphoric and tearful. The Veteran’s speech was normal and her thought process was linear and logical. The Veteran did not have hallucinations, delusions, suicidal intent, or homicidal intent. The Veteran’s judgment was intact. The Veteran was diagnosed with PTSD and major depressive disorder. She was assigned a GAF score of 50. In March 2015, the Veteran was afforded a VA examination for her PTSD. The VA examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported that her relationship with her mother and son was getting better. She had difficulty feeling love for others as well as expressing love to others, including her son and mother. The Veteran did not have a boyfriend and was not interested in sex or hearing others talk about sexual matters. The Veteran had been married twice, but both marriages ended in divorce. She reported that she enjoyed watching television and eating out (sometimes alone and sometimes with her son and her mom). She had five friends who lived in others states who she spoke with regularly. The Veteran also reported that she drove on a daily basis. Furthermore, the Veteran reported that since getting out of the military, she worked in three group homes with adults and kids who had special needs. She was currently working as a residential therapist in an adult group home. She was involved in providing care to the people there. The Veteran had a Master’s degree in education. The Veteran denied suicidal ideation. The VA examiner reported that the Veteran’s symptoms included anxiety, suspiciousness, panic attacks that occurred weekly or less often, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances. Upon behavioral observation, the Veteran appeared anxious, but was cooperative, pleasant, and likeable. The VA examiner opined that the Veteran’s PTSD had a significant adverse impact on her work and social/personal life. However, it was his opinion that the Veteran was not at least as likely as not unemployable due to her PTSD. After considering the evidence of record and the laws and regulations as set forth above, the Board finds that an initial rating of 70 percent, but no higher, is warranted for her PTSD. The evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, and thinking or mood. Throughout the appeal period, the Veteran’s PTSD has been characterized primarily by symptoms of poor sleep patterns, paranoid feelings, nightmares related to trauma, difficulty interacting in crowds, anxiety, depression, panic attacks, and difficulty in establishing and maintaining effective work and social relationships. In September 2010, the Veteran submitted a letter from a clinical social worker from a Vet Center. The clinical social worker stated that the Veteran presented severe symptoms related to PTSD and had difficulty managing every day activities. The Veteran also took steps to protect herself, such as wearing baggy clothes, cropping her hair short, and wearing a wedding band to appear married. In a June 2011 VA examination, the Veteran reported that she stopped going to the gym when she noticed a man looking at her. She also avoided crowds and did not maintain contact with former acquaintances. Also, evidence showed that the Veteran had passive homicidal ideation and suicidal ideation, but did not have a plan or intent to carry it out. Further, in a March 2015 VA examination, although she reported that her relationship with her son and mother was getting better, she had difficulty feeling love for others as well as expressing love to others. The Veteran did not have a boyfriend and was not interested in sex or hearing about others talk about sexual matters. Also, the VA examiner opined that the Veteran’s PTSD had a significant adverse impact on her work and social/personal life. On her August 2011 VA Form 9, substantive appeal, the Veteran reported that she had anxiety and panic attacks at least three times per week. She avoided places with large crowds of people, and stopped going to family reunions because she felt like she could not deal with the men in her family who would be there. Based on the foregoing, the Veteran’s evaluation for PTSD should be increased to 70 percent. A 100 percent evaluation, however, is not for assignment. The evidence of record does not support symptoms of total social and occupational impairment. As previously mentioned before, although the Veteran had thoughts of suicide and homicide, she did not have any plan or intent to carry it out. Also, the evidence of record did not show that the Veteran had gross impairment in thought processes or communications or had peristent delusions or hallucinations. On a March 2015 VA examination, it was noted that her judgment was intact. Although the Veteran only had some difficulty in managing daily living, she was able to take a college course in medical terminology and work as a residential therapist in an adult group home. Additionally, the Veteran was able to drive. For the majority of the time, the Veteran was able to maintain appropriate hygiene. Therefore, the Veteran was not totally occupationally and socially impaired due to her PTSD. The Board has considered whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged ratings”). The Board finds that the Veteran’s PTSD symptoms have been consistent with the 70 percent rating currently assigned for the entire relevant time period here on appeal. As was previously noted, the Veteran’s symptoms have been consistent in frequency and severity throughout the appeal period, and the record does not indicate any significant increase or decrease in such symptoms during the appeal period. Accordingly, staged ratings are not warranted and the 70 percent rating that is now assigned for the entire period here on appeal is appropriate. In summary, when considering all the other symptoms of record, the Board finds that the Veteran’s symptoms most closely approximate a 70 percent evaluation. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). 2. Entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). In reaching such a determination, the central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2018). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b) (2018); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Currently, the Veteran is service-connected for PTSD, rated at 70 percent, which evaluation the Board has assigned in this decision. As such, the schedular requirements for TDIU, under 38 C.F.R. § 4.16(a), are satisfied. However, finding that a veteran meets the schedular requirements for TDIU is not where the inquiry ends. Instead, it must also be shown that the veteran’s service-connected disabilities render him or her unable to secure or follow a substantially gainful occupation. Following a review of the evidence of record, the Board finds that such has not been shown. In December 2014, the RO sent the Veteran a letter requesting that the Veteran complete and return a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. However, the Veteran did not submit this form. Therefore, the Board will look to the other evidence of record in making its determination on the issue of TDIU. The Veteran’s PTSD symptoms included poor sleep patterns, paranoid feelings, nightmares related to trauma, difficulty interacting in smalls crowds, anxiety, depression, panic attacks, and difficulty in establishing and maintaining effective work and social relationships. On her January 2010 VA examination, it was noted that she had not been working since her recent discharge from the army. The Veteran isolated herself socially. She spent her days going to the gym to exercise and tried to engage in activities that would help keep her mind off what happened. On her June 2011 VA examination, the Veteran reported that she was unemployed; however, she was currently attending a college course in medical terminology. In a February 2011 VA treatment record, the Veteran stated that she was very focused on school and her son. She continued to work hard at school and would begin nursing school in the fall. In an October 2012 mental health outpatient treatment note, the Veteran reported that she recently left her job because she was moved to a position where she was with male support staff, which triggered memories and PTSD symptoms. In March 2015, a VA examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. The VA examiner opined that the Veteran’s PTSD had a significant adverse impact on her work and social/personal life, but the Veteran was not at least as likely as not unemployable due to her PTSD. The Veteran reported on her March 2015 VA examination that she was currently working as a residential therapist in an adult group home. Based on the foregoing, the Board finds that the Veteran is not unable to secure and follow a substantially gainful occupation by reason of her service-connected disability. Although the Veteran reported in 2012 that she recently left her job due to her PTSD, in March 2015, she was reported to be working again. Although the Veteran may have challenges regarding social interaction and working, she is not unemployable due to her PTSD. Therefore, the preponderance of the evidence is (CONTINUED ON NEXT PAGE) against a finding that the Veteran is unemployable due to her service-connected PTSD. Accordingly, the claim of entitlement to a TDIU is denied. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel