Citation Nr: 18153750 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 13-35 098 DATE: November 29, 2018 ORDER 1. A 50 percent initial rating is granted for posttraumatic stress disorder (PTSD) and depressive disorder, not otherwise specified (NOS) (service connected psychiatric disability), previously characterized as mood disorder, NOS, and post-partum depression. 2. Entitlement to a total disability rating due to individual unemployability based on service-connected disability (TDIU), before April 17, 2017, is denied. REMANDED 3. Entitlement to a TDIU rating from April 17, 2017 is remanded. FINDINGS OF FACT 1. From the effective date of service connection in May 2010, the service connected psychiatric disability is shown to have been productive of a disability picture that more nearly approximates occupational and social impairment with reduced reliability and productivity; the psychiatric disability picture presented does not reflect occupational and social impairment with deficiencies in most areas due to PTSD and depressive disorder (NOS) symptoms. 2. Before April 17, 2017, the Veteran’s service-connected disabilities (PTSD and depressive disorder (NOS), rated 50 percent; low back strain, 10 percent; postoperative medial meniscus radial tear of the right knee, 10 percent; right patellar subluxation, 10 percent from April 4, 2013; obstructive sleep apnea (OSA), 0 percent from February 10, 2015; genital herpes, 0 percent; right knee scar, 0 percent from March 14, 2011; and migraine headaches, 0 percent from February 10, 2015) were rated 60 percent, combined, and were not shown to result in functional impairment that precluded her from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. An initial 50 percent, but no higher, rating is warranted for the Veteran’s service connected psychiatric disability. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes (Codes) 9411, 9435. 2. Prior to April 17, 2017 the schedular requirements for a TDIU rating were not met, and a TDIU rating was not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty in the Army from September 2006 to May 2010. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 Department of Veterans Affairs (VA) rating decision that granted service connection for mood disorder, NOS, and post-partum depression, rated 30 percent, effective May 24, 2010 (the day following separation from active service). An October 2013 Decision Review Officer decision granted service connection for PTSD and depressive disorder (NOS), continuing the 30 percent rating assigned for service-connected psychiatric disability (upon re-characterizing it and noting that only a single rating may be assigned for service connected psychiatric disabilities). In a statement received in July 2015, the Veteran withdrew her request for a Board hearing. A January 2018 Board decision denied a higher initial higher for the variously diagnosed service-connected psychiatric disability, and denied a TDIU rating. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). In an August 2018 Order, the CAVC granted a July 2018 Joint Motion for Remand (Joint Motion) of the parties, thereby vacating the Board’s decision and remanding the matters to the Board for action consistent with the terms of the Joint Motion. 1. Rating for service connected psychiatric disability. Disability evaluations are determined by the application of VA’s 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 conditions in civil 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. The Board will consider whether 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) When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. PTSD and depressive disorder (NOS) are rated under 38 C.F.R. § 4.130, Codes 9411 and 9435, respectively. As criteria under each code are the same, only a single rating is assigned. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms listed following that phrase are not intended to constitute an exhaustive list, but rather 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 (2002). Accordingly, the evidence considered in determining the level of impairment from anxiety disorders under 38 C.F.R. § 4.130 is not restricted to those symptoms listed in the rating criteria. Instead, VA must consider all symptoms of a claimant’s condition that affect occupational and social impairment, including, if applicable, those identified in DSM-IV. [Effective August 4, 2014, VA implemented use of DSM-5; the Secretary of VA determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The instant claim was originally certified to the Board in February 2015; therefore, DSM-5 applies.] A 30 percent rating is warranted psychiatric disability 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 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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. A 100 percent (maximum) rating is warranted 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 and 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, Codes 9411, 9435. The relevant evidence in this case consists mainly of statements by the Veteran, VA examination reports, and outpatient records. The Veteran has received outpatient therapy during the appeal period, and was afforded VA examinations to assess the severity of her psychiatric disability in April 2010 (pre-discharge), July 2011, September 2015, and October 2017. There has been no evidence submitted since that suggests a material change in condition such that a new examination would be warranted. 38 C.F.R. § 3.327. Upon consideration of the evidence, the Board concludes that throughout, from May 24, 2010, the Veteran’s psychiatric disability symptoms have affected her daily life and ability to function to a degree that more nearly approximates the schedular criteria for a 50 percent (but no higher) rating under Codes 9411 and 9435; and that the psychiatric symptoms have been of such extent, severity, depth, and persistence as to have produced occupational and social impairment with reduced reliability and productivity, but no greater degree of social and occupational impairment. The Veteran underwent four different VA examinations (the first a month prior to her military discharge). She was taking medication for psychiatric symptoms at the time of each examination. The examination reports reflect that her appearance was generally “clean” (except in 2015), and her attention and orientation were intact. She did not have obsessive/ritualistic behavior or panic attacks. She denied homicidal or suicidal thoughts in 2010, 2011, and 2017; on 2015 examination she asserted that she had suicidal ideation but not intent. Her speech was normal. Attention and concentration appeared to be within normal limits. There was no unusual or bizarre behavior (although behavior seemed somewhat pressured in 2017), and thought processes appeared coherent and logical. The Beck Anxiety Inventory in 2011 reflected an assessment of mild anxiety symptoms. In 2011, it was noted she had generally positive relationships with her mother, sister, and ex-boyfriend, but was also easily agitated around her two children and that fought with her sister (and felt aggressive at times during confrontation). In 2015, it was noted she was engaged to a man she met in 2012 (describing the relationship as okay and a struggle), and that she maintained regular contact with relatives but lacked trust in others. After separation from service, she went to college and planned on an associate’s degree in criminal justice (her second year of school in 2011 was going well). In 2015, she was reportedly taking classes online but by then had also quit corrections work at two different facilities after finding it mentally draining and feeling trapped. In 2017, it was noted she had graduated with a bachelor of arts degree in May 2016. The examiners on 2011, 2015, and 2017 VA examinations found that the Veteran’s impairment was best summarized as 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. Much of the outpatient treatment reports reflect similar findings including on mental status examination. Such characterization by the VA examiners is listed in the criteria for a 30 percent rating. However, upon re-evaluation of the evidence, the Board finds that this is a complex case where it is arguable that the clinical findings reported on examination actually reflect impairment with more than just occasional decrease in work efficiency, and that there are some symptoms of sufficient severity, frequency, and duration to place the Veteran’s disability on a level that approximates the criteria for a higher rating of 50 percent. The evidence that is persuasive in that regard is as follows. On 2010 VA examination, just prior to her discharge, the examiner noted the Veteran’s reports that her depression was intermittent, lasting for several days at a time and causing low energy. She would have anger issues that lasted for hours (she reported that she had “very bad anger” and would yell, scream, throw things, and get into fights). The examiner characterized her occupational and social impairment from mental health issues as leading to reduced reliability and productivity, which is listed in the criteria for a 50 percent rating. In 2011, the examiner noted her attitude was irritable and her mood was dysphoric. Her impulse control was fair. She felt that she could not trust people and had markedly limited social relationships. She did not really have friends since separating from the military. She needed medication to sleep well. She reported generally moderate PTSD symptoms since a sexual assault in service. She was withdrawn, easily agitated, and did not make friends easily. She reported that she generally felt anger all the time. She had problems at school with concentration. Psychometric testing data indicated that the degree of severity of PTSD was moderate (depressive symptoms were in the severe range, while irritability/concentration difficulty/loss of interest/agitation were in the moderate range, and anxiety symptoms were in the mild range). In 2015, the examiner noted her symptoms for VA rating purposes were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. She also was unable to relax, was irritable with low frustration tolerance, had verbal aggression and vindictiveness, and avoided crowds. She expressed her feeling that her only reason for living was her children. In 2017, the examiner noted her symptoms were depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and neglect of personal appearance and hygiene. Earlier that year she had been charged with shoplifting but attributed it to “absent-mindedness.” She reported that she was “always angry,” that she had “no interest in anything,” and that she described “forcing herself” to be loving toward her kids (even though she was devastated when her oldest child went to live with his father). Moreover, evidence other than VA examination reports includes records from a private counseling service, which indicate that in May 2010 the Veteran was very depressed and having a hard time functioning. A July 2010 record reflects that she took medication for mood stabilization, depression, insomnia, and anxiety. VA outpatient records show that on in August 2010 the Veteran reported mood dyscontrol (mood lability throughout the day), anger, easy irritability, acting out in an aggressive manner to others, little motivation, and low energy. Her feelings of anger and depression had persisted for nearly a year. She was found to have limited coping skills. A January 2011 mental health note shows, regarding depressive symptoms, that she had a change in sleep, decreased energy, and difficulty in concentrating. In June 2011, her mood was down and irritable. A May 2012 report from Darnall Army Medical Center notes that there was reduced reliability and productivity due to signs and symptoms of her mental health disability (listed in the criteria for a 50 percent rating); such symptoms included blunted affect, emotional detachment, avoidance behaviors (notable intolerance of most public venues or crowded areas), impairment of concentration that contributed to fatigue and disturbances of motivation and mood, marked irritability with frequent verbal outbursts and violence (impaired impulse control in conjunction with impaired judgment), and difficulty in establishing and maintaining effective work and social relationships. It was noted that the Veteran had applied for 20 jobs without any offers; she perceived that she would have problems interacting with co-workers and the public due to issues with irritability, trust, and concentration. Additional records from Darnall show that in January 2017, the Veteran was seen in emergency medicine for evaluation after reporting increased symptoms of depression and anxiety. She was in a custody battle with the father of her youngest child and her house was scheduled for foreclosure. There were no employment problems reported (it was noted that she worked on post at the MAC [cosmetic] store). Two weeks later, she presented at the VA with increasing depression symptoms due to a significant number of social stressors of late pertaining to her job, her children (a custody battle over one child), and her home (soon to be foreclosed upon). She received treatment as an inpatient for a couple days for symptoms of depression, anxiety, irritability, and trouble getting/staying asleep. It was noted that she was employed by MAC and was on a leave of absence. The Board finds that the clinical manifestations of the Veteran’s psychiatric disability, described above, more nearly approximate the criteria for a 50 percent rating, but the record shows few symptoms of a psychiatric disability that typify the criteria for a 70 percent rating. VA examination reports and the Veteran’s treatment records do not show evidence of obsessional rituals that interfered with routine activities, illogical or obscure speech, spatial disorientation, inability to establish and maintain effective relationships, or any comparable symptoms of the same severity. Of such criteria, a depressed mood, anxiety, and chronic sleep impairment were some of the most common and notable symptoms experienced by the Veteran, and they clearly were productive of substantial impairment, particularly given the persistent nature of the symptoms. Nevertheless, she was still shown to be able to function independently, appropriately, and effectively despite the symptoms, and she was not precluded by them from forming and maintaining effective relationships especially with family members. As for the criterion of neglect of personal appearance and hygiene, it was noted by the 2017 VA examiner but otherwise it was generally not an observation of any evaluator or clinician as a sign or symptom of the Veteran’s psychiatric disability. Regarding suicidal ideation, it was also noted on the record in a few instances: in a clinical assessment in July 2010, a VA examination report of September 2015, and a January 2017 Darnell Army Medical Center report. However, most reports during the appeal period that included commentary upon whether the Veteran had suicidal ideation, note that there was none or that she denied it. Infrequent mention of such symptoms as appearance/hygiene neglect and suicidal ideation, which are not shown by the evidence to be persistent, lasting, or of much gravity, are not in the Board’s judgment equivalent to the symptoms contemplated for a 70 percent rating. Of the areas of work, school, family relations, judgment, thinking, and mood under the 70 percent criteria, the Veteran had deficiencies in some, but not most, areas; deficiencies with mood appear to have been the most problematic area, as discussed above. There appears to have been a deficiency at work, as shown by some evidence that she did not maintain some jobs, such as her corrections work, although the record does not substantiate a deficiency to a level that impacted negatively on full-time earning capacity in other occupations. Regarding whether other symptoms for a 70 percent rating are demonstrated by the Veteran’s PTSD and depressive disorder, it is noted that she was consistently alert and oriented, and tended to personal appearance (she was generally casually and appropriately groomed). Her speech was coherent and within normal limits. She generally denied suicidal and homicidal ideation. Where suicidal ideation was noted, the thoughts were expressed on isolated occasions and were fleeting; she declared she would not follow through on account of her children. Regarding her noted impulse control problems, episodes that included violence (destruction of property or aggression towards others) appeared to have occurred during periods of mood lability and increased stress. Otherwise, the Veteran was compliant with her medications, and despite her reports of angry outbursts at times, it is not generally reflected that she had impaired impulse control in the nature of unprovoked irritability with periods of violence to the extent contemplated by the criteria for a 70 percent rating. There was no history of hallucinations and delusions, or psychotic symptoms. The most frequent complaints included sleep impairment and depressed mood; the Veteran did not endorse panic attacks. The examiners’ descriptions of her impairment from PTSD and depressive disorder tended to be in the mild to moderate range. Moreover, these symptoms did not affect her ability to function independently and effectively. The VA examiners also felt that such symptoms did not preclude, or much limit, the Veteran from engaging in various activities of daily living or employment. Indeed, she has been a single mother while attending college (attaining a bachelor’s degree in May 2016) and at times simultaneously maintaining a job. In other words, while some of the Veteran’s symptoms may have been of a type found in the criteria for a 70 percent rating, the severity, extent, and persistence of such symptoms did not produce the level of impairment associated with a 70 percent rating. Although the evidence clearly demonstrates that the Veteran has significant social and occupational impairment attributable to her PTSD and depressive disorder, the psychiatric disability picture for the period under consideration is not one of deficiencies in most areas, but more consistent with the criteria for a 50 percent schedular rating under Codes 9411 and 9435. 2. Entitlement to a TDIU before April 17, 2017 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 at least one 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. §§ 3.340, 3.341, 4.16(a). Prior to April 17, 2017, the Veteran’s service-connected disabilities consisted of: PTSD and depressive disorder (NOS) (rated 50 percent); low back strain (10 percent); postoperative medial meniscus radial tear of the right knee, (10 percent); right patellar subluxation (10 percent from April 4, 2013); OSA (0 percent from February 10, 2015); genital herpes (0 percent); right knee scar (0 percent from March 14, 2011); and migraine headaches (0 percent from February 10, 2015). The combined schedular rating for these disabilities was 60 percent. See 38 C.F.R. § 4.25. Therefore, for this period (from May 24, 2010 from through April 16, 2017), the schedular rating requirement for a TDIU rating under 38 C.F.R. § 4.16(a) was not met. Accordingly, a schedular TDIU rating was not warranted for this period. Where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16(b). Here, the evidence does not show that the Veteran was unable to obtain a substantially gainful occupation due to her PTSD and depressive disorder. Records from Darnell in May 2012 indicate that the Veteran was not having success in finding a job, after applying to 20 positions without a job offer. Difficulty finding employment is not for VA purposes the equivalent of Unemployability. The Veteran found full-time employment in 2013, working in correctional custody of felons with the state department of criminal justice. In response to an inquiry about her employment, her former employer indicated in October 2017 that her employment ceased in September 2013 because she “resigned.” In other words, there was no notation of a mental disability being a reason for termination. Similarly, another former employer, Estee Lauder, responded in August 2017 that the Veteran, who performed make-up services, had “resigned” in February 2017; no indication was made that a mental disability prompted the termination. Further, in May 2015 the Veteran applied for SSA disability benefits, alleging an inability to function and/or work as of September 2013. In her application, she noted having past work experience in the military police, and as a correctional officer during two different times (July 2012 to April 2013 and from May 2013 to September 2013). On an August 2015 evaluation of mental impairments, the Veteran was acknowledged to have anxiety and affective disorders, which produced mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, and marked difficulties in maintaining concentration, persistence or pace. Based principally on these findings (as she was not found to have physical limitations), the SSA found that the Veteran was not disabled. The SSA’s determination also cited three occupations in which there were significant number of jobs existing in the national economy, and observed that the Veteran had 15 years of education. The evidence of record shows that less than a year after the SSA’s decision, the Veteran completed ar college education, attaining a bachelor’s degree. Moreover, as noted by the VA examiners, the Veteran has impairment regarding establishing and maintaining effective work relationships, but clinicians have stopped short of concluding that she is unable to establish and maintain effective work relationships. In short, the overall medical record, as well as the Veteran’s ability to raise three small children as a single mother, to attain a college degree within six years of her separation from military service, and to maintain various jobs during parts of that same period (albeit not always full-time), is persuasive evidence that, while she has some functional limitations associated with her disability, her psychiatric symptoms did not preclude her from participating in employment. The preponderance of the evidence is against the Veteran’s claim for a TDIU rating on both a schedular and extraschedular basis for the period before April 17, 2017. REASONS FOR REMAND 3. Entitlement to a TDIU from April 17, 2017. Beginning April 17, 2017, the Veteran’s combined schedular rating is 90 percent, upon this decision’s grant of a higher rating for her psychiatric disability, in conjunction with a November 2017 rating decision that granted substantial increases in the ratings for OSA and genital herpes. In other words, the threshold schedular rating requirement for a TDIU rating under 38 C.F.R. § 4.16(a) is now met. (That same rating decision also denied a TDIU rating, finding – but without citation to any evidence in the file – that the Veteran is considered capable of gainful employment.) Since the November 2017 rating decision (in July 2018), the Veteran has filed an application for VA vocational rehabilitation benefits. VA vocational rehabilitation records are constructively of record, are likely to contain information pertinent in this matter, and must be secured. The matters are REMANDED for the following action: 1. Obtain the Veteran’s vocational rehabilitation folder and all records created since her July 2018 application for vocational rehabilitation. 2. Before adjudicating the claim of entitlement to a TDIU from April 17, 2017, arrange for any further development indicated (such as for updated employment history) and determine whether further examination by an appropriate clinician(s) is necessary to assess the Veteran’s functional and industrial impairments caused by her service-connected disabilities, which would include an opinion (disregarding age and effects of any nonservice-connected disabilities) as to the types of activities the Veteran remains able to participate in from a medical standpoint, if any, and the types of activities that are precluded by her service-connected (including psychiatric) disabilities. If such examination is needed, it should be arranged. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel