Citation Nr: 18152449 Decision Date: 11/23/18 Archive Date: 11/21/18 DOCKET NO. 08-21 790 DATE: November 23, 2018 ORDER Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) with dysthymic disorder and borderline personality disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected PTSD with dysthymic disorder and borderline personality disorder has not caused total occupational and social impairment or manifest through the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders or others of similar severity, frequency, and duration. 2. The Veteran’s service-connected disabilities have not prevented her from engaging in substantially gainful employment for which her education and occupational experience would otherwise qualify her. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD with dysthymic disorder and borderline personality disorder have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.125, 4.126, 4.130 (2017). 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, that granted service connection for PTSD with an initial 10 percent rating. The Veteran appeared at hearing before the Board in May 2010. A transcript of the hearing is of record. Since the May 2010 hearing, the Board has directed extensive development to ensure the Veteran is fully compensated for the psychiatric impairment resulting from her active service. The Agency of Original Jurisdiction (AOJ) has now substantially complied with the Board’s prior remand directives. The Board notes the Veteran’s service-connected psychiatric disability now includes PTSD, dysthymic disorder, and borderline personality disorder with a 70 percent rating assigned to the effective date of service connection, March 21, 2007. Nevertheless, the issue of entitlement to an initial rating in excess of 70 percent for the Veteran’s service-connected psychiatric disability remains on appeal. The Board notes the issue of entitlement to TDIU is an element of the Veteran’s appeal of the initial rating assigned for her service connected psychiatric disability; therefore, the Board will consider whether TDIU is warranted from the effective date of service connection for the disability, as discussed in more detail below. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial rating in excess of 70 percent for PTSD with dysthymic disorder and borderline personality disorder is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As previously noted, the Veteran’s PTSD with dysthymic disorder and borderline personality disorder is rated as 70 percent disabling from the effective date of service connection. Under the General Rating Formula for Mental Disorders, a 70 percent disability rating is assigned when 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; 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); and inability to establish and maintain effective relationship. A 100 percent disability rating is reserved for 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; and memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the claimant’s symptoms, but it must also make findings as to how those symptoms impact the claimant’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the claimant’s impairment must be “due to” those symptoms; therefore, a claimant may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. Here, the Board finds the preponderance of evidence is against a finding the Veteran’s service-connected PTSD with dysthymic disorder and borderline personality disorder has caused total occupational and social impairment or manifest through the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders or others of similar severity, frequency, and duration. The Veteran has been provided three VA examinations in the appeal period. None of the VA examiners has indicated the Veteran experiences total occupational and social impairment as a result of her service-connected psychiatric disability or manifests any of the symptoms listed in the 100 percent rating criteria or others of similar severity, frequency, and duration. The assessment of the VA examiners appears consistent with the Veteran’s treatment records, as well as her lay reports, which also fail to establish that she has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders, or others of similar severity, frequency, and duration, or that her PTSD has resulted in total occupational and social impairment. An initial VA examiner in October 2007 noted symptoms to include episodic depressive symptoms, nightmares, intrusive thoughts leading to the avoidance of men, hyper-vigilance, and anxiety and panic attacks on a near-daily basis. The October 2007 VA examiner did not provide an explicit opinion regarding the Veteran’s occupational and social functioning; however, he noted the Veteran was able to engage socially to some extent despite the difficulties her psychological impairment caused with respect to her occupational functioning. The Veteran was provided a second VA examination in March 2012. The March 2012 VA examiner determined the Veteran experienced occupational aid 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 as a result of her psychiatric disability, which corresponds to the 50 percent rating criteria under the General Rating Formula for Mental Disorders. The March 2012 examiner noted symptoms similar to those reported by the October 2007 VA examiner, but also explained the Veteran has a pattern of unstable and intense interpersonal relationships; identity disturbance; recurrent suicidal behavior, gestures, or threats, or self-mutilating behavior; chronic feelings of emptiness; transient, stress-related paranoid ideation as a result of her borderline personality disorder. A March 2017 VA examiner also determined the Veteran experiences 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 as result of her psychiatric disability. As previously noted, this level of impairment corresponds to the 50 percent rating criteria. The March 2017 VA examiner attributed this functional impairment to anxiety, suspiciousness and chronic sleep impairment. All three of the VA examiners noted the Veteran was adequately groomed and oriented and alert during the examination. The Veteran denied having either delusions or hallucinations during the examinations. The examiners did not report gross disturbance in thought processes or communication, grossly inappropriate behavior, or any concerns regarding memory loss. They all concluded the Veteran is competent to manage her own affairs. There is nothing in the examination reports that suggests the Veteran is a persistent danger to herself or others. In sum, the VA examiners provided no indication a 100 percent rating is warranted in the Veteran’s case. The Board notes the record also includes a March 2018 VA secondary service connection opinion regarding dysthymic disorder and borderline personality disorder. The author of the March 2018 VA opinion was not asked to examine the Veteran, and his opinion is based solely on a review of the claims file. Although the opinion indicates the Veteran’s PTSD has aggravated her dysthymic disorder and borderline personality disorder, the opinion does not describe any psychiatric impairment other than that noted by previous VA examiners. Essentially, the opinion serves as the basis for the Veteran to receive VA compensation for all of her psychiatric symptoms rather than those than emanate solely from the previously service-connected PTSD. In sum, the Board finds a 100 percent schedular rating is not warranted for the Veteran’s service-connected psychiatric disability. The symptoms listed in 100 percent rating criteria suggest impairment in reality or a total inability to function within the bounds of societal norms. The Board acknowledges the Veteran’s occupational and social functioning is significantly limited by intrusive thoughts leading to the avoidance of men due to the sexual trauma she experienced in service; however, the Veteran’s occupational and social impairment has not risen to the level of total occupational and social impairment at any point in the appeal period. Although she has had intermittent periods on unemployment during the appeal period, the record establishes she has been employed as a social worker for at least six years. She also has social interaction with neighbors and has reported attending public events, such as concerts, during the appeal period. This level of functioning is not consistent with total occupational and social impairment. The Board acknowledges that it is not expected that all cases will show all the findings specified in a specific rating criteria. 38 C.F.R. § 4.21. Yet, in this case, the Veteran has not manifested any of the specific symptoms that warrant a 100 percent rating or others of similar severity, frequency, and duration. As the record fails to establish the requisite level of occupational and social impairment or manifestations of the specific that warrant a 100 percent rating or others of similar severity, frequency, and duration, entitlement to an initial rating in excess of 70 percent for PTSD with dysthymic disorder and borderline personality disorder must be denied. 2. Entitlement to TDIU is denied. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 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. § 4.16(a). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16(b). Marginal employment generally shall be deemed to exist when a claimant’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. Id. Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including, but not limited, to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. As a preliminary matter, the Board notes the Veteran has met the schedular percentage requirements for TDIU throughout the appeal period due to the 70 percent initial rating assigned for her service-connected PTSD with dysthymic disorder and borderline personality disorder. Because TDIU is an element of the Veteran’s appeal of the initial rating assigned for her service-connected psychiatric disability, the relevant period under consideration in this appeal commenced on the date of her service connection claim for an acquired psychiatric disability, March 21, 2007. The Board finds the preponderance of evidence is against a finding that the Veteran’s service-connected disabilities have prevented her from engaging in substantially gainful employment for which her education and occupational experience would otherwise qualify her during the appeal period. In reaching this determination, the Board acknowledges the Veteran has had intermittent periods of unemployment during the appeal period; however, she has been employed as a social worker for at least the past six years, establishing that she is capable performing the physical and mental acts required by employment. See Van Hoose, 4 Vet. App. at 363. The Board also recognizes that the Veteran’s employment options are significantly limited by intrusive thoughts that make interactions with men extremely difficult; however, it deems this factor standing alone insufficient to support a finding that TDIU is warranted in light of her current employment. The Board acknowledges the Veteran’s statement that her position primarily involves providing care for her disabled son in her home. Yet, the Board finds it highly unlikely the Veteran would be compensated for such care if she was incapable of performing the tasks required, especially in light of the severity of her son’s condition. The Agency of Original Jurisdiction (AOJ) has requested employment information from the Veteran, but she has failed to respond to requests for this evidence. VA duty to assist is not a one-way street, and the Veteran has a duty to actively participate in the development of her claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Without the employment information requested by the AOJ, VA adjudicators are unable to assess whether the Veteran’s employment constitutes marginal or sheltered employment within the meaning of the applicable VA regulation. Because the record is insufficient to establish either marginal or sheltered employment, the Board finds the preponderance of evidence remains against a finding that the Veteran’s service-connected disabilities have prevented her from engaging in substantially gainful employment for which her education and occupational experience would otherwise qualify her during the appeal period since she has been employed for the majority of the appeal period. As such, entitlement to TDIU must be denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel