Citation Nr: 21004977 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-08 784 DATE: January 28, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for post-traumatic stress disorder (PTSD) prior to August 10, 2012, is granted. Entitlement to a disability rating in excess of 70 percent for PTSD from August 10, 2012, is denied. Entitlement to a total disability rating for individual unemployability (TDIU) prior to August 10, 2012, is granted. FINDINGS OF FACT 1. Prior to August 10, 2012, the Veteran’s PTSD was manifested by social and occupational impairment with deficiencies in most areas; it was not manifested by total social impairment. 2. From August 10, 2012, the Veteran’s PTSD was not manifested by total social impairment. 3. Prior to August 10, 2012, the Veteran cannot obtain or retain substantially gainful employment due to her service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for PTSD prior to August 10, 2012, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent for PTSD from August 10, 2012, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to TDIU prior to August 10, 2012, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1978 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for PTSD and assigned a disability rating of 30 percent prior to August 10, 2012, and 70 percent thereafter. The RO also denied TDIU prior to August 10, 2012, and granted TDIU thereafter. The Veteran requested a hearing before the Board. See March 2013 VA Form 9. However, in October 2015, the Veteran submitted a statement indicating she wished to withdraw his hearing request. Accordingly, the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.702(d). In February 2017 and January 2019, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded the claims to: (1) obtain Social Security records; (2) private medical records, if any; (3) outstanding VA treatment records; (4) an opinion on the effect of the Veteran’s PTSD on her ability to perform occupational tasks; (5) a new, current VA examination; (6) and an opportunity to submit a VA Form 21-4142 for a March 2008 SSA examination. Since the Board remands, the Veteran has been afforded opportunities to submit and identify additional private medical records, to include the March 2008 SSA examination. She has also been afforded a new, adequate examination. Additionally, all requested records have been associated with the evidentiary record. The Board finds there has been substantial compliance with its remand directives, and the claims are ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. PTSD Here, the Veteran contends that her PTSD is more severe than her current disability rating would indicate. The Veteran has received extensive mental health treatment throughout the appellate period. For the reasons that follow, the Board concludes that the Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating throughout the appeal period. The Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent during the appellate period. A 70 percent rating is warranted for 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 rating is warranted for 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. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Where there is a question as to which of two ratings shall be applied, the higher rating 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. A. Prior to August 10, 2012 Prior to August 10, 2012, VA treatment records, Social Security Administration (SSA) records, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating (e.g., suicidal ideation, panic or depression affecting ability to function, impaired impulse control, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships), and symptoms associated with a 100 percent rating (e.g., persistent danger of hurting self or others). The Board finds that the severity, frequency, and duration of the Veteran’s symptoms are more closely approximated by the 70 percent criteria. The Board notes that the Veteran’s PTSD was often manifested by suicidal ideation, which is specifically contemplated in the 70 percent criteria and similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation did not rise to the level contemplated by a 100 percent disability rating. While the Veteran was hospitalized for her suicidal ideation prior to the appellate period, the record does not illustrate a persistent danger of self-harm of a severity that totally impairs her ability to function socially. See March 2017 VA treatment records. Indeed, treatment records show that this occurrence resulting in a hospitalization was isolated; she did not endorse a new instance of suicidal ideation until November 2012. Id. Prior to August 10, 2012, the Veteran reported the following symptoms, among others: panic attacks that occur more than once a week, irritability or outbursts of anger, sleep impairment, audio and visual hallucinations occurring up to three times a week, and poor concentration. See January 2012 VA examination report, SSA records, and March 2017 VA treatment records. The Veteran’s panic attacks are triggered by stressful situations. See SSA records. The severity of the Veteran’s poor concentration appears to be a significant bar to employment as more fully described below. Id. While the Veteran endorsed audio and visual hallucinations with a frequency of up to three times per week, the record does not support that these hallucinations were persistent, or otherwise continuous, in that they barred her ability to interact socially, in an appropriate manner, or impaired her judgment. Indeed, at the time of each endorsement, the Veteran knew she was hallucinating without endorsing confusion. See VA treatment records. Thus, the Veteran’s hallucinations do not rise to the level contemplated in the 100 percent criteria. The Board finds that the impairment caused by the Veteran’s symptoms are more closely approximated by the 70 percent criteria. In July 2009, SSA issued a Fully Favorable decision concluding that the Veteran had been disabled and unable to work since 1999. See SSA records. The SSA Administrative Law Judge (ALJ) reviewed a March 2008 consultative examination and concluded that the Veteran’s psychiatric impairment caused by “depressive and vegetative symptoms” precluded the ability to perform a full range of sedentary work. Id. The Board notes that the examination has not been associated with the evidentiary record despite requests to the Veteran to submit a VA Form 21-4142 and without response. See September 2019 Subsequent Development Letter. Though the Board is not bound by the findings and conclusions of the ALJ, the Board finds the order persuasive. Thus, the Veteran’s impairment causes a total occupational impairment prior to August 10, 2012. As to the Veteran’s social impairment, the evidentiary records illustrates that the Veteran has had difficulty with men as related to the etiological nature of her PTSD. See January 2012 VA examination report. Prior to August 10, 2012, she has consistently reported a good social support consisting of her mother, three daughters, and boyfriend / fiancé. See March 2017 VA treatment records. Indeed, she has visited a daughter and grandson in Florida on more than one occasion. Id. Though she has difficulty in social situations and trusting men, the record shows that she is capable of social interaction, to include resolving conflict with men and women. Thus, she is not totally socially impaired as her family relations are not completely impaired, but her symptoms more closely resemble social impairment with deficiencies in work, school, judgment, thinking, and mood. As explained above, the Board finds that the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. While the Veteran did experience some symptoms contemplated by a 100 percent rating (self-harm and hallucinations), the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. Indeed, the Veteran remembers her own name, the name of her boyfriend / fiancé, and children. While the record indicates that the Veteran was experiencing hallucinations, the record does not demonstrate that such hallucinations were persistent or caused a lack of judgment. As noted above, the Veteran’s symptoms were either contemplated by or more consistent with a 70 percent rating. Furthermore, and critically, the Veteran is not totally socially impaired. While the Veteran reported perceived inability to appropriately socialize the Veteran also reported having regular social contacts and supports including her boyfriend / fiancé, three daughters, and grandson. See March 2017 VA treatment records. The Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 70 percent levels for her PTSD, staged ratings are not warranted. Accordingly, the Board finds that the criteria for an increased disability rating of 70 percent, but no higher, prior to August 10, 2012, are met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § § 3.102. B. From August 10, 2012 From August 10, 2012, the Veteran has maintained an inability to perform a full range of sedentary work. Indeed, she was granted a TDIU rating for this period. VA treatment records, VA examination reports, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating and symptoms associated with a 100 percent rating. The severity, frequency, and duration of her panic attacks increased from August 10, 2012. In November 2012, she voluntarily admitted herself into the hospital due to her panic attacks, depression, and suicidal ideation. See March 2017 VA treatment records. Indeed, the November 2012 VA examiner noted that the Veteran had “near continuous panic or depression affecting the ability to function independently, appropriately, and effectively.” See November 2012 VA examination report. However, this symptom appeared to wane significantly in subsequent reports within the appellate period. See March 2013, November 2017, and November 2019 VA examination reports; see also August 2018, September 2019, November 2019, July 2020 VA treatment records. Since her November 2012 hospitalization, she has not endorsed suicidal ideation to her treatment providers. See August 2018, September 2019, November 2019, July 2020 VA treatment records. Importantly, during the period in which her panic attacks and suicidal ideation needed hospitalization, she continued to endorse good relationships with her three daughters, one son, and fiancé. The Veteran’s impairment caused by her suicidal ideation, hallucinations, poor concentration, and panic attacks did not significantly change from August 10, 2012. From August 10, 2012, the impairment caused by the Veteran’s symptoms appear to remain relatively the same. Her symptoms increased and decreased in their severity, but her consistent ability to maintain her familial relations is evidence of deficiencies in most areas contemplated by the 70 percent criteria and not a total social impairment contemplated by the 100 percent criteria. As explained above, the Board finds that the level of impairment caused by the Veteran’s symptoms did not more closely approximate the level associated with a 100 percent rating. While the Veteran did experience some symptoms contemplated by a 100 percent rating (self-harm, hallucinations, and panic) the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. Indeed, the Veteran remembers her own name, the name of her boyfriend / spouse, and children. While the record indicates that the Veteran was experiencing persistent panic and depression, the record does not demonstrate that it caused a total social impairment. As noted above, the Veteran’s symptoms were either contemplated by or more consistent with a 70 percent rating. The Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 70 percent levels for her PTSD, staged ratings are not warranted. Accordingly, the Board finds that the criteria for an increased disability rating in excess of 70 percent from August 10, 2012, are not met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § § 3.102. 2. TDIU prior to August 10, 2012 Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis solely on her PTSD disability. Pursuant to the Order above, the Veteran’s PTSD has been rated at 70 percent disabling prior to August 10, 2012. See 38 C.F.R. § 4.16(a). The Veteran has already been awarded TDIU from August 10, 2012. Thus, the narrow issue before the Board is whether the Veteran was been unable to secure or follow a substantially gainful occupation as a result of her PTSD prior to August 10, 2012. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran has alleged that she cannot work because of her service-connected PTSD. See June 2011 VA Form 21-8940. The Veteran’s highest level of education completed was high school. See SSI records. She has not worked since leaving her last full-time position as a medical records clerk in 1999. See June 2011 VA Form 21-8940. She noted a poor relationship with her supervisor and co-workers. Id. The Veteran’s PTSD symptoms make it difficult to establish work relationships. As discussed previously, the Veteran has demonstrated symptoms of a general distrust of men, panic attacks triggered by stress, irritability, angry outbursts without provocation, and suicidal ideation. Additionally, she has a notable, occupational impairment due to her “depressive and vegetative symptoms” that preclude the ability to perform a full range of sedentary work. See SSI records. As such, the Board finds the Veteran and her medical treatment providers probative as to her functional limitations attributable to her PTSD. Therefore, the Board finds that the Veteran’s service-connected PTSD prevents her from obtaining and maintaining gainful employment. Accordingly, the criteria for TDIU have been met, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.