Citation Nr: 18154860 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-39 307 DATE: November 30, 2018 ORDER Entitlement to a rating in excess of 70 percent for service connected post-traumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service connection disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD symptoms have not resulted in total occupational and social impairment at any time during the appeal period. 2. Throughout the appeal period, the Veteran has not been shown to be unable to obtain or maintain employment consistent with her education and experience due solely to her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for service connected PTSD, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1988 to November 1993. This matter comes before the Board from an April 2013 rating decision. The Veteran was scheduled for a hearing before the Board in October 2018; however, the record indicates that the Veteran did not appear for her scheduled hearing. The Veteran has submitted evidence indicating that her service-connected PTSD affects her ability to obtain and maintain gainful employment. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Thus, although the Veteran has not formally appealed a February 2017 rating decision denying entitlement to TDIU, in light of Rice, the claim for TDIU is properly before the Board at this time. 1. Entitlement to a rating in excess of 70 percent for service connected post-traumatic stress disorder (PTSD) The Veteran’s PTSD has caused significant social and occupational impairment; however, the record does not support a finding that the symptoms have resulted in total social and occupational impairment. Disability ratings are based on VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. It is the responsibility of the rating specialist to interpret reports of examination in the 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 the disability present. 38 C.F.R. § 4.2. When evaluating a mental disorder, VA considers the frequency, severity, and duration of psychiatric symptoms. VA assigns an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). The schedule for rating mental disorders, including PTSD, is set forth in 38 C.F.R. § 4.130. The ratings are as follows: [100 percent:] Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communications; 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. [70 percent:] 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. The rating of psychiatric disorders is ultimately based upon a Veteran’s resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder’s primary focus in determining the level of occupational and social impairment. Vazquez-Claudio, 713 F.3d at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Vazquez-Claudio, 713 F.3d at 117. Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio, 713 F.3d at 115; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the Board finds that the Veteran suffers from symptoms of similar severity, frequency, and duration that cause occupational and social impairment equivalent to that which would be produced by the specific symptoms enumerated in the rating criteria, then the appropriate equivalent rating will be assigned. 38 C.F.R. 4.21; Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). In the Veteran’s notice of disagreement, she detailed her increased difficulty at work as a result of her PTSD. The Veteran submitted a statement from a work colleague recounting a situation that happened at a work conference in which the Veteran became visibly upset and had to leave a seminar. The Veteran stated that she usually has very good evaluations at work, however she provided a July 2011 evaluation showing poor work performance. The record indicates that sometime after May 2014, the Veteran left her job as an Emergency Management Coordinator. The record indicates that there had been discussion of her position being merged with another, which would have resulted in her termination, the Veteran was already applying for other jobs when this job ended. After leaving that job, the record indicates the Veteran was attending college courses and applying for other employment, eventually securing a position at the VA in Madison. During a February 2013 VA examination, the Veteran reported fear of commitment and relationships. She also reported that she is late to work nearly every day due to stress, fatigue, and being less able to concentrate. She does not do activities on the weekends, though she would go to lunch with acquaintances at work. However, the Veteran reported having a male friend. The Veteran endorsed a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Throughout the appeal period, the Veteran reports depression, nervousness, anxiety, and stress. The record reflects some passive suicidal ideation, but no plan. The Veteran’s medical record also reflects improvement with medications. In January 2015, the Veteran indicated she was having “more good days than bad.” She reported attending quilting meetings and participating in the VA Creative Arts Festival. In September 2015, the Veteran led a group activity in zen-doodling where she showed the group patterns, offered suggestions, and provided positive feedback to her peers. The treatment records note that the Veteran has a good relationship with her son and grandson and she visits them as often as she can. She reported that she was looking forward to a new job that would bring her closer to her grandson. After a review of the above, the evidence does not indicate that the Veteran’s PTSD symptoms result in total social and occupational impairment. The Board has considered the Veteran’s reported memory impairment, depression, and anxiety that make it difficult for her to establish and maintain effective relationships. However, the record does not support a finding of total social impairment. The Veteran attends group sessions, sometimes leading the group, she reports a relationship with her grandson, work acquaintances, and a male friend. Taken as a whole, the record establishes that the Veteran is capable of forming, sustaining, and maintaining multiple personal relationships. Such belies a finding of total social impairment. Further, total occupational impairment is not shown. The Board acknowledges that the Veteran reported leaving a job related to her PTSD symptoms. However, after leaving that position, the Veteran began attending college courses, applying for other positions, and successfully secured stable employment. As such, the occupational impairment caused by the Veteran’s PTSD is not “total” and is adequately contemplated by her 70 percent PTSD rating. In summary, while the Veteran is significantly socially and occupationally limited by her service-connected PTSD, the evidence fails to show that this impairment is total so as to warrant a 100 percent schedular rating. Based on the foregoing discussion, the Board finds that Veteran’s PTSD symptoms more nearly approximates the rating criteria for a 70 percent rating during the entire period on appeal. In reaching its decision, the Board has considered the benefit of the doubt rule. However, the preponderance of the evidence reflects the Veteran’s symptomatology more closely approximates that contemplated by a 70 percent evaluation. Therefore, the benefit of the doubt rule does not apply, and the claim for increase is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) Total disability is considered to exist when there is any impairment 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). TDIU is granted where a Veteran’s service-connected disabilities are rated less than total, but prevent her from obtaining or maintaining all gainful employment for which her education and occupational experience would otherwise qualify her. 38 C.F.R. § 4.16. If there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran’s service-connected PTSD is evaluated at 70 percent disabling for the entire period on appeal, and therefore she meets the schedular criteria for TDIU. Id. The Veteran contends that she is unable to maintain substantial employment because of her service-connected PTSD. Specifically, she contends that she had to leave her position as an Emergency Management Coordinator because of her PTSD. The record is unclear as to why the Veteran left that position, as there was an indication that the position was being merged with another which would have resulted in her termination. The Veteran reports an inability to think of words during conversations, disorientation regarding the date, tardiness, and impaired judgment. The Veteran submitted a performance review showing an overall score of 2.2/5 and below-acceptable scores in analytical thinking, fiscal management, defining roles and responsibilities, judgment/decision making, communication, time management, productivity, and quality of work. The record is clear that the Veteran was struggling in her position as an Emergency Management Coordinator. After leaving the Emergency Management Coordinator position, an August 2015 mental health note indicates that the Veteran was going to a job interview, notes from October 2015 treatment discuss the Veteran’s participation in VA job fairs/vocational training, and the record indicates that the Veteran was offered a position in with the VA in December 2015, which she accepted. A February 2016 treatment note indicated that the Veteran had been working for two months and that her mood symptoms were well controlled, though she still experienced hypervigilance and could startle easy. There is nothing in the record to indicate the Veteran is unable to obtain or maintain substantial employment. Indeed, although the Veteran had a period of unemployment arguably related to her PTSD, during that period she was attending college, applying for, and interviewing for other positions. The Veteran successfully secured another full-time position and the record indicates she is doing well in this position. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule does not apply, and the claim for TDIU is denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Rekowski, Associate Counsel