Citation Nr: 20021664 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-03 451 DATE: March 26, 2020 ORDER A 50 percent rating, but no greater, for posttraumatic stress disorder (PTSD) prior to April 12, 2016 is granted. A 100 percent rating for PTSD as of April 12, 2016 is granted. REMANDED Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) for the period prior to April 12, 2016, is remanded. FINDINGS OF FACT 1. Prior to April 12, 2016, the Veteran’s PTSD symptoms including depressed mood, anxiety, panic attacks, and sleep impairment caused occupational and social impairment with reduced reliability and productivity. 2. As of April 12, 2016, the Veteran’s PTSD symptoms have caused total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating, but no greater, for PTSD have been met prior to April 12, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a 100 percent rating for PTSD have been met as of April 12, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal comes to the Board of Veterans’ Appeals (Board) from an August 2015 rating decision that granted service connection for PTSD with an initial disability rating of 30 percent. The Veteran provided sworn testimony in support of her appeal during a hearing before the undersigned Veterans Law Judge in June 2019. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran’s PTSD is currently evaluated as 30 percent disabling, effective June 6, 2014, under the criteria of Diagnostic Code 9411. See 38 C.F.R. § 4.130. A 10 percent rating is assigned where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms, controlled by continuous medication. Id. A 30 percent rating is assigned where 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). Id. A 50 percent rating contemplates 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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; intermittently illogical obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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. Id. Symptoms listed in VA’s general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). The Board has carefully reviewed the record here and finds that giving the Veteran the benefit of the doubt, she is entitled to a 50 percent rating prior to April 12, 2016 and a 100 percent rating as of April 12, 2016. In June 2014 the Veteran sought mental health treatment, reporting anxiety, self-isolation, and nightmares due to PTSD. A July 2014 VA treatment record reflects that the Veteran reported she had been having two to three anxiety attacks per day in recent months after the birth of her child with increasing anxiety after finding out she may be deployed with the National Guard. She sought treatment at the emergency room reporting chest pressure with anxiety and nightmares. A September 2014 VA treatment record reflects that the Veteran reported at times feeling depressed, lonely, and sad. She indicated she was working two jobs. She was deployed in October 2014 with the National Guard. In December 2014, she reported she enjoys and performs well at her part-time child care job, but stated that she feels depressed at home. She also reported nightmares and flashbacks. VA treatment records reflect that in April 2015 the Veteran reported she had started her own photography business and was getting clients. In July she reported she was living with her mother but getting her own apartment soon. She reported having nightmares twice a week on average. The examiner noted mild underlying anxiety but noted the Veteran’s speech to be goal-directed, thought process coherent and logical with no delusions or paranoia, and fair insight and judgment. On VA examination in July 2015 VA examination the examiner indicated that the Veteran has the following PTSD symptoms: depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment. Specifically, she reported nightmares, and intrusive thoughts. She reported disliking being in crowds or groups of men. She stated that she worked part-time in child care from November 2014 to April 2015 and previously worked security for four months. The examination report does not indicate any specific occupational difficulties due to her PTSD. Socially, she reported that she participates in activities with her socially active minor daughter, goes to the gym, and occasionally attends church. She reported primarily socializing with her sister and father, noting a friend had recently moved away. The examiner opined that the Veteran’s PTSD causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. At her 2019 Board hearing, the Veteran testified that she was having hallucinations at the time of her July 2015 VA examination although it isn’t reflected in the examination report. Medical records reflect that in October 2015 she went to the emergency room after awakening from a nightmare with an anxiety attack. A November 2015 treatment record indicates that the Veteran reported she stopped taking classes due to difficulty staying focused. She reported not taking her medication and stated she was having increased anxiety. In January 2016, the Veteran went to the emergency room reporting she had woken up feeling anxious. She reported being in a new romantic relationship. She stated that she completed her associate degree in October and was self-employed full time in the photography business. In March 2016 she separated from the National Guard. On April 12, 2016 the Veteran returned to the emergency room reporting physical pain as well as anxiety. She reported her anxiety had progressively worsened with frequent panic attacks, nightmares every other night, and flashbacks. She married in May 2016. She again went to the emergency room in June 2016 reporting increased anxiety attacks and depression and reported she may feel suicidal if sent home. Records indicate she reported not working or going to school any more. In October 2016 she reported doing better since her June hospital admission and indicated she was looking for seasonal work. In May 2017 she was again admitted to the hospital, reporting suicidal ideation. She also reported nightmares, feeling paranoid that people are following her, and homicidal ideation toward her husband. An October 2017 VA treatment record reflects that she reported panic attacks three to four times per week, flashbacks, nightmares, hypervigilance. She reported low energy and stated that she sleeps all day and is up all night. In November she reported passing out from a panic attack. She stated that she feels paranoid, has flashbacks and nightmares, and continued panic attacks three to four times per week. On VA examination in May 2018, the examiner indicated that the Veteran has the following symptoms as a result of PTSD and depression: chronic sleep impairment, fatigue, concentration problems, irritability, anhedonia, recurrent thoughts of her trauma, nightmares, flashbacks, avoidance of stimuli associated with the trauma, a heightened startle response, hypervigilance, detachment from others, impaired judgment, disturbances of mood and motivation, interpersonal problems, difficulty coping with stress, intermittent suicidal ideation, persistent hallucinations and delusional ideation, suspiciousness, panic attacks, anxiety, and obsessional rituals. The Board notes that the examiner diagnosed PTSD and depression as two separate disorders. However, a VA opinion obtained in January 2020 is that the Veteran’s depressive symptoms are fully subsumed by the primary diagnosis of PTSD. Therefore, as the Veteran is service connected for PTSD, the Board will consider all of the Veteran’s PTSD and depression symptoms for rating purposes. The examiner opined that the Veteran’s mental health symptomatology causes total occupational and social impairment. The record reflects that the Veteran had additional psychiatric hospitalizations in June 2019, December 2019, and January 2020. The Board finds that a 100 percent rating is warranted as of April 12, 2016, as the Veteran’s hospitalization on that date and numerous subsequent hospitalizations and reports of mental health difficulties, represents a worsening of her condition at that point such that she had total occupational and social impairment. Prior to April 12, 2016, the Board finds that a 50 percent rating, but no greater, is warranted. Although the July 2015 VA examiner opined that the Veteran’s PTSD symptoms causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication, the criteria for a 10 percent rating, the Board finds that the Veteran’s condition more closely approximated occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent rating for the period prior to April 12, 2016. The record reflects that the Veteran was an active member of the National Guard between June 2014 and April 2016, performing all required functions. She also held multiple civilian jobs. She has since testified that hallucinations interfered with her work in security, although no contemporaneous treatment records reflect any complaints of hallucinations during that period. The record does reflect that she reported performing well as a child care worker. She also reported completing an associate degree during that period, although she has reported some difficulty with her classes. She started a photography business as well after completing her schooling, initially indicating it was going well. Socially, the record reflects that the Veteran was involved with her minor children between June 2014 and April 2016, including going to activities with her pre-teen daughter. She had a romantic relationship during that time and also reported relationships with family members. Thus, although the record suggests difficulty with relationships, it does not suggest an inability to establish and maintain relationships. Overall, the Board finds that the Veteran’s functioning prior to April 12, 2016 most closely approximated the criteria for a 50 percent rating. Based on the forgoing, a 50 percent rating prior to April 12, 2016 and a 100 percent rating thereafter is granted. REASONS FOR REMAND 1. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran has contended that she cannot work due to her service-connected disabilities, including her PTSD. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Additionally, the issue of entitlement to TDIU also raises the issue of entitlement to special monthly compensation (SMC). See 38 U.S.C. § 1114(l), (s). See also Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (observing that entitlement to SMC is an “inferred issue” in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue); Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum benefits allowed by law). Here, the Agency of Original Jurisdiction has not adjudicated the issue of entitlement to TDIU. On remand, the Veteran should be asked to complete a formal application for TDIU, VA Form 21-8940. The RO should then develop and adjudicate the issue in the first instance. The matters are REMANDED for the following action: (Continued on the next page)   Furnish the Veteran a VA Form 21-8940 to enable her to file a formal application for TDIU. Then develop and adjudicate the issue of entitlement to TDIU in the first instance. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.