Citation Nr: 18151915 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-26 990 DATE: November 20, 2018 ORDER Entitlement to a rating in excess of 70 percent for a psychiatric disability is denied. Entitlement to a total disability rating based on individual unemployment due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran’s service-connected psychiatric disability more nearly approximates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as irritability, depressed mood, chronic sleep disturbances, inability to establish and maintain effective relationships, panic attacks, and social isolation. Total social impairment has not been shown at any time during the appeal period. 2. The competent evidence of record shows that the Veteran is unable to obtain and maintain substantially gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for the Veteran’s service-connected psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to February 1983. The Veteran testified before the undersigned Veterans Law Judge in October 2018. 1. Entitlement to a rating in excess of 70 percent for a psychiatric disability The Veteran’s service-connected psychiatric disability is currently assigned a 70 percent rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A General Rating Formula for evaluating psychiatric impairment other than eating disorders contains the actual rating criteria for evaluating the Veteran’s disability. Pursuant to the General Rating Formula for Mental Disorders, a 70 percent rating is warranted when a psychiatric disorder causes 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 work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A rating of 100 percent is assigned when a psychiatric disorder causes 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, General Rating Formula for Mental Disorders. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A December 2014 psychiatric examination report in conjunction with the Veteran’s Social Security Disability application shows she was assessed with normal grooming and dress. Her appearance showed no physical abnormality or abnormal movements. The Veteran reported working part time but had difficulty with focusing and staying on task. Additionally, the Veteran reported getting angry easily. The Veteran reported sleeping 4 hours per night with difficulty falling and saying asleep. She did report being able to perform self-care skills, was able to drive, use public transportation, and did not require assistance in doing shopping. Regarding the Veteran’s social functioning, it was noted she had difficulty interacting with others due to not trusting anyone. The Veteran reported no close relationships with persons other than immediate family. Daily activities were noted to be spent in solitary activities. Main problems with completing tasks were noted to be due to be poor concentration and being distracted. Mental status examination showed that the Veteran was able to concentrate throughout the entire interview without interruptions or the need to repeat questions. Attention and concentration were within normal limits. The Veteran was noted ot maintain good eye contact, had a cooperative attitude, and was neither hostile nor guarded. She was noted to be anxious during interview. Speech was normal. Thought process was normal. The examiner noted that there were no indications of delusions. The Veteran did report being suspicious and mistrustful of other people. Paranoid thoughts were reported. Suicidal and homicidal thoughts were all denied. No hallucinations were reported. Her mood and effect were noted as anxious. Memory was noted as normal. Judgement was adequate. The examiner remarked that the Veteran was able to understand, carry out, and remember complex, and one and two-step instructions. The Veteran was able to sustain concentration and persist in work related activity at a reasonable pace. The Veteran was noted to be unable to maintain effective social interaction on a consistent basis, with supervisors, co-workers, and the public. She was noted to be able to deal with normal pressures in competitive work setting. An April 2015 VA psychiatric examination report shows that the Veteran was diagnosed with overlapping PTSD and major depressive disorder, that caused concentration problems, sadness, guilt, and depressed mood worsened with reexperiencing military sexual trauma. The examiner reported that the Veteran was assessed with occupational and social impairment with reduced reliability and productivity. Total occupational and social impairment was not assessed. The examiner reported that the days when the Veteran had male clients at work, she did not want to go to work or when she forced herself to go, she was more anxious and guarded. She reported that she would show up late to work caused by concentration problems. The examiner remarked that socially, she avoided socializing with men or leaved quickly, and made sure that she took someone with her if she left an event. When depressed the Veteran would become more withdrawn and socialized less. The examiner noted that she has had a partner for the past six years and had a “really good” relationship, as relationships were difficulty for the Veteran due to her past assaults but her partner “puts up with a lot” The Veteran also reported having a good relationship with her mother and half-brother. The Veteran reported that she was a barber and enjoyed her job and clients but had issues working with others. The Veteran reported seeing a counselor at the VA and felt like she had good support group with her partner and friend. She denied suicidal ideations for last 7 to 8 years. When depressed she felt sluggish, eats, and felt worsening senses of worthlessness and guilt and shame. The Veteran also reported that she would run more when depressed and starting lifting weight to cope with symptoms. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, hypervigilance, and disturbances of motivation of mood. The examiner noted that the Veteran was social and does a lot of activities; however, she is constantly guarded and does not trust others so she does not have close friends. The examiner noted that the claimant was constantly on guard, was suspicious of others (i.e., ready to protect herself), becomes agitated when around men that are the same ethnicity as her attacker, has difficulty with intimacy due to flashbacks, invasive memories (i.e., struggling during the assault), has nightmares (i.e., being assaulted), difficulty concentrating, difficulty falling/staying asleep, inability to experience positive emotions, angry/irritable, checks locks constantly, and overcompensates when around men. Based on a review of the evidence, the Board finds that the Veteran’s psychiatric disability is appropriately rated as 70 percent disabling. In continuing the 70 percent rating for the Veteran’s PTSD, the Board has 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, by as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for a psychiatric disability. Mauerhan v. Principi, 16 Vet. App. 436 (2002). During the appeal period, the Veteran’s psychiatric disability has been manifested by, irritability, depression, anxiety, suicidal thoughts, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships regarding males, and hypervigilance. The Board finds that this symptomatology is consistent with occupational and social impairment, with deficiencies in most areas, the criteria for a 70 percent rating. The Board recognizes that the symptoms noted in the rating schedule are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 70 percent rating are demonstrated throughout the appeals period. Moreover, the Board finds that a rating higher than 70 percent is not warranted for any part of the appeal period. The evidence shows that the Veteran has maintained most of her independent functionality throughout the appeal period. The evidence of record does not show symptomatology commensurate with a 100 percent schedular rating, demonstrating total occupational and total social impairment. The Veteran has not demonstrated total social impairment as she had a partner and did enjoy going to work except when she had male clients. As noted later in this decision, the Board will award TDIU due to her service connected psychiatric disability, which reflects the severity of the symptoms in preventing her from gaining and maintaining employment. However, there is no evidence that the Veteran is totally both occupationally and socially impaired. Here, the Board notes that the Veteran reported having a supportive partner, good relationships with her mother and half-brother, as well as enjoying her clients when should could work. Additionally, the 2015 VA examiner determined that the Veteran was not totally socially impaired. The Board also notes that the Veteran has never been found to not be able to conduct activities of daily functioning despite the severity of her psychiatric disability. The Board also notes that at no time during the appeal period has the Veteran showed symptoms of such severity as gross impairment in thought processes, persistent delusions or hallucinations; grossly inappropriate behavior; a persistent danger hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In reaching the above conclusions, the Board has considered the Veteran’s and statements regarding the severity and frequency of psychiatric symptoms. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, even with consideration of the Veteran’s statements, the VA examination reports and other probative evidence of record have consistently shown that the Veteran’s service-connected psychiatric disability does not result in total social and occupational impairment at any point during the appeal period. The Board finds that those reports and the treatment records are the most persuasive evidence of record. Thus, to the extent that the Veteran asserts that her service-connected psychiatric disability is worse than evaluated, the Board points out that the predominant findings during clinical examinations and treatment reports over the years do not establish that she has more severe disability in this respect. Accordingly, the preponderance of the evidence is against the assignment of a rating greater than 70 percent for the psychiatric disability, and the claim is denied. 2. Entitlement to a total disability rating based on individual unemployment due to service-connected disabilities (TDIU) It is the established policy of VA 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. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. 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 disabilities provided at least one disability is ratable at 40 percent 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). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16 (b). The central inquiry is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 is whether a 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 (1993). The Board notes that the Veteran meets the minimum percentage requirements of 38 C.F.R. § 4.16 (a) with a combined disability rating of 70 percent. This combined rating is a result of a 70 percent rating for psychiatric disability, a 10 percent rating for a tinnitus, and a non-compensable rating for bilateral sensorineural hearing loss. A May 2016 letter from a VA registered nurse reported that the since the Veteran was under care, she was unable to maintain a job for any length of time and when she did work preferred to work alone but has periods when she could not work at all. A May 2016 letter from a VA physician that had been treating the Veteran since 2009 reported that the Veterans psychiatric disability made it difficult for her to continue functioning as a hair stylist. A March 2017 letter from the Veteran’s VA primary care physician reported that the Veteran was unable to work due to her psychiatric disability that caused stress, anxiety, insomnia, and anger issues that caused difficulties in both her personal and working relationships. The physician noted that the Veteran irritability, impatience, and arguments with other work colleagues caused an in ability to work with others. After a review of the evidence of record, the Board notes that the Veteran has been unable to maintain gainful employment and had been working sporadically as a hair stylist. Considering the Veteran’s occupational background and the functional limitations described, the Board finds that the evidence supports that the Veteran is unable to obtain and maintain substantially gainful employment in accordance with her background and education level as a result of the symptoms caused by her service connected psychiatric disability. In so finding, the Board looks in particular to the letter submitted by VA medical personnel in May 2016 September 2014 and March 2017, which concluded that the Veteran’s service-connected psychiatric disability in particular prevented her from participating in gainful employment. Accordingly, and resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel