Citation Nr: 20024814 Decision Date: 04/09/20 Archive Date: 04/09/20 DOCKET NO. 19-10 127 DATE: April 9, 2020 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with obsessive compulsive disorder (OCD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from August 2, 2018. FINDINGS OF FACT 1. The Veteran’s PTSD with OCD has been manifested by no more than occupational and social impairment with deficiencies in most areas throughout the appeal period. 2. Since August 2, 2018, the Veteran’s PTSD with OCD has rendered her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD with OCD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a TDIU are met from August 2, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 2002 to October 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was denied entitlement to TDIU in September 2018. Although a separate Notice of Disagreement has not been submitted, as the evidence suggests that the Veteran is unemployable due to symptoms of her service-connected PTSD with OCD, the issue of entitlement to a TDIU has been raised by the record and is part and parcel of the increased rating claim on appeal, and accordingly, the Board will consider this issue in its decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a rating in excess of 70 percent for PTSD with OCD is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found 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 disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s PTSD with OCD is currently rated at 70 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411, which is rated under the General Rating Formula for Mental Disorders. A 70 percent rating is assigned when 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; 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. 38 C.F.R. § 4.130, DC 9411. A 100 percent rating is warranted if 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; 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 a veteran’s symptoms, but it must also make findings as to how those symptoms impact a 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). By way of background, a May 2011 rating decision awarded service connection for the Veteran’s psychiatric disorder and assigned a 30 percent rating, effective July 28, 2010. A December 2013 rating decision increased the rating to 50 percent, effective January 18, 2013, and a May 2016 rating decision increased the rating to 70 percent, effective April 20, 2016. The current appeal period before the Board begins on August 2, 2018, the date VA received the Veteran’s claim for an increased rating, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Initially, the Board notes that the Veteran is also diagnosed with nonservice-connected anxiety disorder. See February 2019 VA treatment record. The evidence of record does not sufficiently distinguish the symptoms of this disorder from her service-connected PTSD with OCD. Thus, the Board’s instant discussion attributes all the Veteran’s mental health symptoms to her PTSD with OCD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Upon review of the totality of the record, a rating in excess of 70 percent is not warranted at any point during the appeal period, as the Veteran’s symptoms are not of such a severity or frequency to result in total occupational and social impairment. In this regard, there is no evidence of 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; or any other symptoms of similar severity, frequency, and duration. Regarding impaired impulse control, the Veteran has consistently reported irritability and angry outbursts. For example, she reported that she smacked her sister last year who “kept poking the bear” and stays home to avoid such situations. See August 2018 VA treatment record. At the August 2018 VA examination, the Veteran reported that she often feels angry and often wants people to start something with her so that she can lash out and indicated that if someone bangs the door it takes all her control to not go beat them up. Also, with respect to a work setting, she stated that she had no impulse control when questioned the slightest on why she did a task a certain way or at a certain time or with employees who she felt were unwilling to do their job properly and timely. See August 2018 VA Form 21-8940. Thus, while the Veteran struggles with irritability, the Board finds her symptoms do not correlate with impaired impulse control sufficient to warrant a higher evaluation. Moreover, any current social impairments, to include her limited social relationships and difficulty interacting with other individuals, are adequately considered by her currently assigned 70 percent rating. Furthermore, the evidence shows no history of grossly inappropriate behavior or persistent danger of hurting others, and treatment records consistently reflect normal thought content and processes, as well as intact insight and judgment. Despite the Veteran’s report of intrusive thoughts, such thoughts are not considered gross impairment of thought process as would be identified on a mental status examination. Also, there has been no indication of disorientation or delusions, and the Veteran has never reported memory loss of the severity contemplated by a 100 percent rating. Instead, the evidence shows normal speech and communication skills, cooperative behavior, and the Veteran has been oriented at all times. See February 2018, April 2018, June 2018, August 2018, October 2018, December 2018, and February 2019 VA treatment records; see also August 2018 VA examination report. The Board acknowledges vague reports of suicidal thoughts. Notably, the Court has held that suicidal ideation, alone, may warrant a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10, 19-20 (2017). However, the Veteran is already rated 70 percent and the evidence supports a finding the suicidal ideation is vague in nature and the Veteran has consistently denied any intent or attempts of hurting herself; thus, the evidence does not demonstrate a persistent danger of the Veteran hurting herself. Also, although the Veteran reported experiencing hallucinations, they are not of the severity, frequency or duration to warrant a 100 percent rating, as they have not manifested in such a severity, frequency and duration to warrant a finding of total social and occupational impairment. Also, while the record indicates the Veteran has near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, there is no indication that she is unable to perform activities of daily living (including maintenance of minimal personal hygiene). In this regard, the record shows the Veteran’s hygiene to be appropriate and within normal limits at all times and the Veteran consistently reports having extreme rituals related to personal hygiene and self-care. Notably, the August 2018 VA examiner found that the Veteran was independent with activities of daily living, although she reported spending the day in bed several times a week, being in bed from 12-3 every day in order to “regroup,” and did not do housework. In conclusion, the Board finds the Veteran’s PTSD with OCD symptoms, throughout the entire appeal period, have been manifested by no more than occupational and social impairment with deficiencies in most areas and are characteristic of the criteria considered by a 70 percent disability rating. The evidence of record does not support a finding that the Veteran has exhibited total occupational and social impairment, as she has never demonstrated symptoms of similar severity, frequency, or duration as to those contemplated by the 100 percent criteria. Thus, for reasons outlined above, a rating in excess of 70 percent is denied. 2. Entitlement to a TDIU is granted from August 2, 2018. A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. The Veteran asserts that her PTSD with OCD prevents her from securing or following any substantially gainful employment. Given her 70 percent rating for PTSD with OCD, she meets the criteria for consideration of TDIU on a schedular basis due to this disability alone for the entire appeal period, or from August 2, 2018. 38 C.F.R. § 4.16(a). Accordingly, what remains to be determined is whether the functional impairment associated with her psychiatric disability is of such nature and severity as to preclude substantially gainful employment. The Veteran reports that she last worked full time in 2009. See August 2018 VA Form 21-8940. Thereafter, she indicates doing intermittent part-time work as a substitute teacher between 2015 to 2017 and reports completing college with no other education or training. Id; see also August 2018 VA Form 21-4192. The Veteran stated that her obsessive rituals interfered with her ability to be on time and maintain a regular schedule, as it was very time consuming, especially if she missed or messed up a ritual and had to restart from the beginning. See August 2018 VA Form 21-8940. She indicated that her mood could be unpredictable, irrational, and temperamental and reported that she was unable to manage stress or unexpected problems at work. She also attributed symptoms of hypervigilance, anxiety, depression, and insomnia to her inability to work. The August 2018 VA examiner noted that the Veteran had chronic sleep impairment, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, difficulty adapting to stressful circumstances, including work or a worklike setting, difficulty establishing and maintain effective work and social relationships, and obsessional rituals that interfered with routine activities. The examiner stated that the Veteran “currently exhibit[ed] mental health symptoms that interfere with interpersonal relatedness, concentration and memory, and ability to tolerate stress and motivation” and that such “symptoms would impair the Veteran’s ability to work cooperatively and effectively with co-workers and supervisors, communicate effectively, and maintain persistence on tasks.” The Board emphasizes that the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Given the August 2018 VA examiner’s favorable findings, coupled with the Veteran’s competent and credible reports, as well as her level of education and occupational background, the Board finds that she is unable to secure or maintain a substantially gainful occupation due to her PTSD with OCD. Accordingly, a TDIU is established from August 2, 2018. Marcus J. Colicelli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.