Citation Nr: 18157571 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-54 617 DATE: December 13, 2018 ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not manifest total occupational and social impairment. 2. The Veteran’s service-connected PTSD does not prevent her from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2006 to September 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. 1. Entitlement to an initial disability rating in excess of 70 percent for PTSD At issue is whether the Veteran is entitled to a disability rating in excess of 70 percent for an acquired psychiatric disorder. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection in October 2015, and, in a February 2016 rating decision, the RO granted service connection and assigned a disability rating of 30 percent effective October 21, 2014. The Veteran appealed the initial disability rating. During the pendency of the appeal, the Veteran’s disability rating was increased to 70 percent throughout the period on appeal. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings for acquired psychiatric disorders, such as PTSD, are evaluated pursuant to the General Rating Formula for Mental Disorders. A disability rating of 70 percent is assigned for acquired psychiatric disorders that manifest 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); and an inability to establish and maintain effective working relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 100 percent, total disability rating is assigned for acquired psychiatric disorders that manifest 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating, 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. See Mauerhan. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio. The Veteran’s statements and treatment records indicate that she manifested psychiatric symptoms throughout the period on appeal. The Veteran underwent a VA examination in February 2016. She reported that she worked as a manager in a pool hall (owned by a friend) for three years after separating from service, and, that for the last four years prior to the examination (from approximately 2012 to 2016), she had been employed as a chiropractic assistant. The Veteran indicated that she was less socially active. She indicated that she was married to her spouse of seven years, and that the two were a great team. The Veteran stated that she also had three children and a close best friend. The examiner noted a number of psychiatric symptoms including: intrusive thoughts; distressing dreams; psychological stress at being reminded of her period of service; avoidance of people, places, and things that remind her of her service; irritability; hypervigilance; problems with concentration; sleep disturbances; anxiety; suspiciousness; sleep impairment; and mild memory loss. The examiner opined that the Veteran manifested occupational and social impairment with reduced reliability and productivity. The Veteran underwent another VA examination in October 2017. She stated that she had not been able to secure and maintain a job due to her psychiatric symptoms, but did concede that she was able to participate in college classes that could be completed online. The Veteran reported that she was still married to her spouse of eight years (with three children), but that their marriage had its ups and downs; which in turn exacerbated her symptoms. The examiner noted a number of psychiatric symptoms including: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impairment of long-term and short-term memory; flattened affect; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances including work or a worklike setting; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The examiner opined that the Veteran manifested occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. The Veteran is not entitled to a disability rating in excess of 70 percent for an acquired psychiatric disorder. In order to meet the criteria for a disability rating in excess of 70 percent, the Veteran must to manifest total occupational and social impairment. The Veteran maintained a relationship with her spouse, her children, and at least one close friend during the period on appeal. Therefore, the Veteran is not totally socially impaired. Additionally, the Veteran was able to secure and maintain employment for a portion of the period on appeal, but, even after she left the workforce, she demonstrated that she could perform occupations that could be performed via telework by her ability to complete college courses online. Therefore, the Veteran was not totally occupationally impaired. Moreover, the Veteran has been provided two VA examinations, and neither of these examinations indicate that the Veteran manifested total occupational impairment. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to a disability rating in excess of 70 percent for an acquired psychiatric disorder. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to an initial disability rating in excess of 70 percent for PTSD is denied. 2. Entitlement to TDIU. At issue is whether the Veteran is entitled to TDIU. The weight of the evidence indicates that she is not entitled to TDIU. TDIU is only assigned if the veteran’s service-connected disabilities prevent the Veteran from securing and maintaining substantially gainful employment, and it also typically requires that the veteran meet one of two schedular requirements: either a single disability that is at least 60 percent disabling; or a combined disability rating that is at least 70 percent disabling but only if the veteran has been assigned a single disability rating that is at least 40 percent disabling. 38 C.F.R. § 4.16. Here, the Veteran has been service connected for a single disability, PTSD, and, as discussed above, it has been found to be 70 percent disabling. Therefore, the Veteran meets the schedular requirements for TDIU. Nevertheless, the Veteran is not entitled to TDIU, because the Veteran is not prevented from securing and maintaining substantially gainful employment. The weight of the evidence does not establish that the Veteran is entitled to TDIU. As discussed in the above section, the Veteran’s acquired psychiatric disorder causes occupational and social impairment with deficiencies in most areas including work. Nevertheless, the Veteran was able to secure and maintain employment for a portion of the period on appeal, and, for the portion of the period of appeal for which the Veteran was unemployed, she demonstrated that she could perform occupations that could be performed via telework by her ability to complete college courses online. Moreover, the educational benefits that the Veteran received as a result of these courses will improve her ability to secure gainful employment in the national economy. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to TDIU. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to TDIU is denied. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel