Citation Nr: 18100809 Decision Date: 04/20/18 Archive Date: 04/20/18 DOCKET NO. 14-31 561A DATE: April 20, 2018 ISSUES DECIDED: 2 ISSUES REMANDED: 0 ORDER Entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD overall has not been manifest by total occupational and social impairment. 2. The Veteran’s service-connected disabilities do not render her unable to obtain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) have not been satisfied. 38 U.S.C. §§ 1110, 1154 (b), 5107 (b); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been satisfied. 38 U.S.C. §§ 1110, 1154 (b); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1994 to April 1994 and from January 2004 to March 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. 1. Entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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 (2017). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The Veteran claims entitlement to an increased disability rating for her service-connected PTSD, which she asserts is more severe than the 70 percent rating assigned. A 70 percent rating for PTSD contemplates 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); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted for PTSD resulting in 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. The evidence considered in determining the level of impairment under the Rating Schedule for PTSD is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In a September 2011 private psychiatric evaluation, the Veteran described being very depressed with episodes of “lashing out” and feeling like she was on an emotional roller coaster. These episodes of depression had involved domestic violence, anger and frustration. She was currently married to her husband for 7 years. She reported flashbacks, drank excessively, and was unable to control her anger. The Veteran worked at the post office and was in school finishing her degree. She admitted hopelessness about the future and frustration, but did not want to end her life because of her 3 year old son. She denied hearing voices and there were no other indications of overt psychotic process. The Veteran was diagnosed with major depression, recurrent, alcohol abuse and/or dependence, and posttraumatic stress disorder, chronic. In an undated written correspondence, the Veteran described how she became extremely irrational, irritable and angry. She isolated herself and felt anxious and depressed. The Veteran endorsed problems sleeping because she had visions of her time in service; she also had nightmares. In a May 2012 disability benefits questionnaire (DBQ) submitted by the Veteran, the examiner found that symptoms of the Veteran’s PTSD included recurrent intrusive thoughts of trauma, nightmares, flashbacks, exaggerated startle response, hypervigilance, avoidance of thoughts and feelings associated with trauma, avoidance of places, arousing recollections, inability to recall, anger outbursts, difficulty with concentration, sleep disturbances, and “always on edge.” The examiner stated that the Veteran’s depression, not otherwise specified caused her to feel hopeless with low self-worth, energy and motivation, and high irritability and guilt. The examiner stated that the Veteran had occupational and social impairment with reduced reliability and productivity, and occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was noted as married but with marital strain that was at times volatile. However, she had positive social support, primarily her family of origin. The Veteran’s overall symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, a history of suicidal ideation, and unprovoked irritability with periods of violence. In a May 2012 email correspondence, the Veteran described how she felt suicidal in Iraq and when she first came home. She said that she currently did not feel suicidal. In an August 2012 PTSD VA examination, the Veteran reported depression, anhedonia, easy tearfulness, sleeping disturbances, intermittent visual hallucinations since she returned from Iraq and poor judgment at times. She said she had some marital problems as the communication between her and her spouse was suboptimal; however, the Veteran said she was invested in saving her marriage. The Veteran was noted as isolative with no friends or outside activities unless they involved her son. The examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, and obsessional rituals which interfere with routine activities. The examiner stated that the Veteran drank 12 beers daily and this interfered with mood and enhanced mood lability/irritability. Upon examination, the Veteran’s mood was dysphoric and she was in an anxious mood but handled questions well. She was dressed casually. She denied suicidality, homicidality or psychotic features but did admit to sporadic visual hallucinations of “heads.” The examiner stated that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. In statements submitted from the Veteran’s friend, sister, mother, and mother-in-law, the Veteran was described as not enjoying activities she used to anymore, such as running; she described the Veteran drinking too much alcohol, avoidant, isolative, cutting off people, irritable and angry, having nightmares, inability to trust people, and feeling worthless. Some improvement was noted by her mother including improved self-worth, less isolated from extended family, and more decisive, but that she would fall back into her old patterns at times. In an undated written correspondence, the Veteran reported how over the years she became very irrational and angry. She described an incident where the police were involved because she put her car in the lake; she said she was dissociated at the time and did not remember what she was thinking but did not feel she was suicidal. In the Veteran’s August 2013 notice of disagreement, she stated that despite therapy and medication her life seemed to be a consistent “roller coaster” of emotions, anxiety and depression issues, relationship problems, employment struggles and coping with alcohol. She described one incident where she and her husband got into an argument that was so bad the Department of Human Resources became involved, concerned for them and their son. In an undated letter to the employment appeal board regarding her termination from Target, the Veteran stated that she suffered from chronic anxiety and depression which caused each day to be a struggle. As part of her condition, she asserted that she had a hard time focusing and comprehending things sufficiently. In a June 2014 PTSD VA examination, the examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and obsessional rituals which interfere with routine activities. Upon examination, the Veteran was alert, oriented and cooperative. She was casually dressed, displayed adequate grooming and thought flow was linear and coherent and goal directed. Veteran denied suicidality, homicidality or psychosis. Her eye contact was good and speech was soft, with sometimes hesitance in her utterance. She appeared not to feel sure of her responses. Her mood was depressed/highly anxious and affect was tearful/blunted; the Veteran took a smoke break 10 minutes into the session. It was noted the Veteran was married for 10 years and wanted to go on a “honeymoon” to celebrate. The examiner concluded that the Veteran continued to have re-experiencing, avoidance and hyperarousal symptoms along with negative alterations in mood and cognition. She also had high anxiety, daily depression and continued to drink 1 to 2 six packs of beer nightly in order to sleep. She had significant social and occupational impairment. The examiner stated that the Veteran’s level of psychiatric impairment was significant and serious. Her psychiatric disabilities included mood swings/lability, easy tearfulness along with poor insight into her drinking and effects on her mood states and functioning. In the Veteran’s August 2014 VA Form 9, the Veteran asserted that she had continuous panic/anxiety and depression that affected her ability of daily function. She had unprovoked irritability that ended in violent behavior. She did not adapt to stressful environments or circumstances. She had become very unsocial and unable to maintain effective relationships. The Veteran stated that everything was a constant struggle for her and her ability to think rationally, and her mood swings. She said she could not work and she struggled with school. She avoided stressful things and situations, and avoided getting too close to anyone anymore, so she did not have many relationships. She described her life as a constant roller coaster. She got angry for no reason and said her life was horrible. In a private March 2015 psychotherapy note, the Veteran’s mood was mild dysphoria, anxiousness, no tearfulness, less struggles with energy and motivation, concentration struggles, no changes in weight/appetite, and no self-harming thoughts. She had a history of marital strain, was attending college, and had moderate support. The Veteran stated that she was on track to graduate in May 2015 which had further solidified her decision to pursue a career in business/real estate. Her shared home situation with her husband had improved. In an undated statement from the Veteran, she said that when she was going through her frequent episodes which caused her to be extremely anxious and irritable toward people and very angry, it was best for her to avoid people. She suffered from nightmares and trouble sleeping. Her coping mechanisms included isolating herself and avoiding dealing with anything. She said her marriage was a roller coaster, and her husband was constantly telling her that she needed anger management. A January 2016 VA treatment note showed that the Veteran did not indicate that that her PTSD interfered with daily activities/relationships. In a May 2016 PTSD VA examination, the examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was married and had been since 2004. She said she was not currently working and last worked in 2012. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Upon examination, the Veteran appeared to have decent grooming/hygiene, she was oriented to person, time and place. She denied homicidal and suicidal ideation. She also denied audio or visual hallucinations. Her speech was fluent and goal-directed and normal in rate, tone and volume. The thought process was within normal limits and without psychotic process. Insight appeared good and judgment seemed adequate. The Veteran was drinking about 12 beers per night. Her mood was dysthymic and anxious. Affect was appropriate to the situation but very anxious. She was cooperative and forthcoming and her immediate memory and delayed memory were intact. Further, the May 2016 VA opinion reiterated that the Veteran’s symptoms included depression, anxiety, panic attacks, re-experiencing, avoidance, hyperarousal symptoms, trauma induced nightmares/night terrors, avoidance of crowds, hypervigilance, anger outbursts, exaggerated startle response, feelings of detachment and avoidance of all cues associated with her trauma, and negative alterations in mood. The Veteran had significant social impairment and had few friends. She preferred to isolate herself occupationally and socially to the detriment of her family and career. She felt worthless at times and permanently damaged, with consistent negative emotional state. Her self-esteem was poor, she suffered from shame and guilt, and her motivation was poor. The Veteran was currently in counseling and taking medications. The overall evidence of record does not show that the Veteran warrants a rating in excess of 70 percent. The Veteran asserted suicidal ideation; however, she noted that she would not act on them which shows a level of functioning not contemplated by the 100 percent criteria. The most recent May 2016 VA examination that she had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran’s PTSD clearly impacts her marriage and social functioning, however, the record does not indicate that the Veteran has total social impairment. The May 2016 VA examiner indicated that the Veteran has “significant social impairment” but has few friends. The Veteran’s mother reported that she had improved but fell back into old patterns at times. The Board notes that at times the Veteran has exhibited severe symptoms of PTSD which has impacted her ability to maintain relationships; however, the Board finds that a 70 percent rating most adequately encompasses these symptoms, and a higher rating of 100 percent is not warranted. The evidence shows that the Veteran completed school, and continues to work on her marriage. She continues in counseling and has shown improvement over time. Accordingly, the Board finds that a rating in excess of 70 percent is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence during the appeal period is against the Veteran’s claim for a disability rating in excess of 70 percent for her service-connected PTSD, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that she is unemployable as a result of her service-connected disabilities. Specifically, she stated in her February 2016 Form 21-8940 that TDIU was due to her service-connected PTSD. The Board may assign a TDIU in the first instance provided that certain schedular disability ratings requirements, such as a combined disability rating of 70 percent with at least one disability rating as 40 percent rating, are met. See 38 C.F.R. § 4.16(a); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16 (a) are not met). The Veteran is presently in receipt of service connection for PTSD with depression, alcohol dependence, and partner relational problem, rated as 70 percent disabling. The Veteran’s combined disability rating is 70 percent. Thus, the schedular rating requirements for a TDIU are met. 38 C.F.R. § 4.16(a). Although the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the Board finds that the evidence establishes that her service-connected disabilities have not rendered her unable to secure or follow a substantially gainful occupation during the pendency of the claim. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Factors to be considered are a Veteran’s education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Initially, the Board notes that although the Veteran’s most recent February 2016 VA Form 21-8940 shows that the Veteran was last employed in October 2012, separate records show that the Veteran was employed as of January 2016. The evidence of record indicates that she completed college. In a December 2010 letter from the Veteran’s private obstetrician/gynecologist, it was requested that accommodations be made in shift schedule for the Veteran’s emotional as well as mental well-being indications. In an April 2011 letter from the post office, the Veteran was provided notice of a 14 day suspension due to unsatisfactory attendance. In a September 2011 private psychiatric evaluation, the Veteran was noted as working at the post office. In an undated written correspondence, the Veteran described how she had problems at work. She said that she associated her work at the post office with the same feelings she had in Iraq. Work seemed to aggravate her anxiety and irritability. In an April 2012 letter from the post office, the Veteran’s request to transfer facilities was addressed following an incident that occurred between her and a coworker. The Veteran asserted that the incident caused her to have poor attendance and created a hostile work environment. However, the post office concluded that the Veteran had attendance issues before the incident. In a May 2012 DBQ, the examiner stated that the Veteran’s PTSD caused her to be unsuccessful at postal employment due to avoidance behavior; the Veteran avoided places that “reminded” or triggered recollections of events. This caused her to leave her employment. In addition, due to her PTSD, the Veteran was unusually unsuccessful with her college coursework. In a June 2012 letter from the post office, the Veteran received notice of proposed removal from the post office due to attendance issues. In a separate written correspondence, the Veteran asserted that she had an extremely hard time with her employment. In an August 2012 PTSD VA examination, the examiner noted that the Veteran had just secured a new job at the Target Distribution Center. However, the Veteran was somewhat isolative and had occupational interpersonal problems in the past. The Veteran stated that she liked the job and it was very physical. It was full-time and she liked her schedule. She said that she previously worked at the post office and left because it was a “horrible job” and she felt isolated. At the post office she said that her coworkers were mean, hours were long and she could not get time off, there were threats, she had problems with supervisory personnel, had concentration/focusing problems, and was going to be terminated. She said that she was fired from a different job with Tidal Services; however, she left on good terms, but it came down to a conflict of interest. The examiner stated that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. In an October 2012 correspondence, the Veteran stated that she lost her job at the post office due to downsizing. In a March 2013 counseling record narrative report, the Veteran stated that she had been looking for work since December 2012. The Veteran was currently attending college and working towards a BS degree. It was determined that the Veteran’s PTSD clearly contributed in an identifiable, measurable, observable manner to the Veteran’s overall vocational impairments in that job duties that required emotional stress or working around triggers would aggravate her PTSD, or at least diminish the Veteran’s capability to successfully perform these job duties further exacerbating their vocational circumstances and likely leading towards a long-term vocational complications that the Veteran may never be able to overcome. It was concluded however that the Veteran was capable of achieving suitable employment within a reasonable time frame. In the Veteran’s August 2013 notice of disagreement, the Veteran expressed how she was forced out of her job at the post office for her attendance record due to her medical problems. She said she was on family leave and medical act because her depression and anxiety were so severe that she could barely function, which resulted in a forced termination due to a “claimed illness.” However, following leaving the post office, she took a job at Target Distribution, thinking that she would be better at a different job. She said she barely made it to her 90 days; the job caused her to have anxiety and panic attacks at work. She said one day she tried to call in sick, but Target terminated her stating that she did not use the “call in line.” She tried filing for unemployment, but was denied. She then started working as a part-time gymnastics coach, but due to her anxiety, she would sweat a lot which caused noticeable armpit rings which was embarrassing, so she quit. In an undated letter to the employment appeal board regarding her termination from Target, the Veteran stated that she suffered from chronic anxiety and depression which caused each day to be a struggle. As part of her condition, she asserted that she had a hard time focusing and comprehending things sufficiently. In the June 2014 PTSD VA examination, it was noted that the Veteran was on medical leave from the post office. Her position was eliminated. She worked for a short time at the Target Distribution Center, but the work was too hard physically. The examiner stated that the Veteran had significant social and occupational impairment. The Veteran’s level of psychiatric impairment was significant and serious. In the Veteran’s August 2014 VA Form 9, the Veteran stated that due to her PTSD, she could not work. In a March 2016 letter, the Veteran was notified that she completed her vocational rehabilitation and employment program. It was determined that the Veteran had successfully maintained employment as a manager’s assistant with Black Hawk Handyman Services for 60 days. In an undated statement from the Veteran, she said that she had not been able to work or comprehend the ability to work a normal work week schedule for 4 years, since 2012, due to her frequent episodes which caused her to be anxious and irritable. She said in order to graduate school she had to take on a part-time schedule and had two interviews since graduation that were “disastrous.” She said these interviews were so stressful her anxiety was “off the charts,” and she was physically shaking and perspiring. In the May 2016 VA opinion, the examiner opined that the Veteran’s level of impairment was moderate to severe. The Veteran had high anxiety levels with mood liability, anger and social issues. She would have significant problems maintaining a job and clearly struggled in an occupational setting due to her symptoms. The Board notes that the Veteran has struggled with maintaining employment; however, the most recent evidence of record shows that the Veteran is currently working. In fact, a Rehabilitation Closure Statement in the claims file showed that the Veteran had been working for a Handyman Services since January 2016. It was noted that she was working between 20-30 hours per week but believed that this would increase as the organization grew. It was noted that her education, work ethic, and previous experience provided her with the skills necessary to acquire suitable employment in her desired field. It was also noted that her current job was permanent and the Veteran reported that she was meeting her overall daily living needs. The Veteran reported no exacerbations of her PTSD symptoms while functioning in this role. Based on this information, the RO requested that the Veteran update her VA Form 21-8940, as this information was not included in her February 2016, application for TDIU. However, the Veteran did not provide the requested information. The Board has carefully considered the Veteran’s statements regarding the effects of her disability on her employability. Although she experiences difficulty being around others as a result of her disability, repeated VA examinations have indicated that she is not precluded from obtaining or maintaining substantially gainful employment. The Board has assigned these examination reports great probative value as they were based on an examination of the Veteran and a review of the pertinent evidence of record. Given the above, the Board finds that the Veteran’s service-connected disability does not preclude her from securing and following gainful employment in light of her past education and work experience. As a result, the claim for a TDIU must be denied. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel