Citation Nr: 21005123 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 13-02 417 DATE: January 29, 2021 ORDER Entitlement to a rating in excess of 30 percent, prior to November 21, 2016, in excess of 50 percent, prior to November 14, 2019, and in excess of 70 thereafter, for posttraumatic stress disorder (PTSD), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to November 21, 2016, the Veteran’s PTSD was manifested by symptoms of panic attacks; inability to go out at night; no desire to keep in contact with extended family members; hypervigilance and occupational and social impairment with occasional decreases in work efficiency. 2. From November 21, 2016 to November 13, 2019, the Veteran’s PTSD was manifested by symptoms of panic attacks; inability to go out at night; no desire to keep in contact with extended family members; depressed mood; anxiety; suspiciousness; hypervigilance and occupational and social impairment with reduced reliability. 3. From November 14, 2019, the Veteran’s PTSD has been manifested by symptoms of panic attacks; inability to go out at night; no desire to keep in contact with extended family members; depressed mood; anxiety; suspiciousness; hypervigilance; occasional suicidal thoughts; depressed mood; chronic sleep impairment and occupational and social impairment with deficiencies in most areas. 4. At no time during the appeal had total occupational and social impairment, been demonstrated due to the service-connected PTSD. Moreover, the record has not demonstrated symptoms such as grossly inappropriate behavior, gross impairment in thought processes or communication; persistent hallucinations or delusions; or persistent danger of hurting self or other. 5. The Veteran did not return a completed VA Form 21-8940 to support her claim of entitlement to a TDIU. CONCLUSIONS OF LAW 1. Prior to November 21, 2016, the criteria for a rating in excess of 30 percent for the service-connected PTSD was not met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. From November 21, 2016 to November 13, 2019, the criteria for a rating in excess of 50 percent for the service-connected PTSD was not met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 3. From November 14, 2019, the criteria for a rating in excess of 70 percent for the service-connected PTSD has not met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to September 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing. A copy of that transcript has been associated with the Veteran’s electronic claims folder. In May 2019, the Board remanded the matters for further development. The Board finds that there has been substantial compliance with its’ remand directives. 1. Entitlement to a rating in excess of 30 percent, prior to November 21, 2016, in excess of 50 percent, prior to November 14, 2019, and in excess of 70 thereafter, for PTSD The Veteran contends that she is entitled to an increased rating for her service-connected PTSD because she exhibits symptoms of panic attacks; doesn’t go out at night; is angry all the time; cries every day; experiences nightmares; and has cut off contact with most people. See March 2012 Veteran’s correspondence. For the reasons explained below, the Board finds that an increased rating is not warranted at any point during the period on appeal. Under 38 C.F.R. § 4.130, Diagnostic Codes 9411, a 100 percent rating is assigned 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is assigned 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. A 50 percent rating is assigned for 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Although the 50 rating criteria contemplate deficiencies in “motivation or mood,” such deficiencies must be “due to” the symptoms listed for that rating level, “or others or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). That is, simply because this Veteran has depressed mood, and because the 50 percent level contemplates a deficiency in “mood” among other areas, does not mean his anxiety disorder rises to the 50 percent level. Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. The Veteran was afforded a VA PTSD examination in March 2012 where she reported that she lived with her husband and daughter from a previous relationship. She characterized her marriage as “very good,” although she later reported that she avoided intimate time with her husband. At the time, she was pursuing a bachelor’s degree in psychology and history. She reported that she would soon start counseling sessions at the Vet Center and denied any current medication treatment since 2010. The examiner noted that the Veteran suffered from symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less; chronic sleep impairment; mild memory loss; disturbances of motivation and mood and difficulty adapting to stressful circumstances. The examiner noted that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner noted that the Veteran continued to have active PTSD symptoms, but no increase from her previous rating in 2010. In a May 2012 VA Form 21-4138, the Veteran stated that her symptoms were worse than reflected in the March 2012 VA examination. She stated that she rarely is intimate with her husband and had flashbacks of her military sexual assault. She reported that she kept to herself and tried to accomplish her errands as quickly as possible. Although she attends in-person classes, the Veteran admitted that she is hypervigilant. She reported that her personal hygiene suffered as a result of lack of motivation and depression symptoms. Vet Center records indicate that the Veteran reported having no close friends and difficulty leaving the house due to panic attacks. She denied incidents of suicidal or homicidal thoughts. She reported the occurrence of intrusive thoughts about her sexual assault. She reported that she was enrolled in college and had a heavy course load, but was managing. She reported that her triggers from military sexual trauma were minimized due to medication an effective self-talk. She was working through her trauma and reducing isolative and avoidant behavior. At one point, in May 2013, she reported that she had been compliant with her mood medications and had even taken her nephew to a basketball game. She reported that she did well handling the crowd. She also reported that she was on track to complete her bachelor’s degree. She reported one incident where she felt scared that someone was following her in the parking lot and found out that someone was merely trying to return a parking pass she had dropped. She reported that she had difficulty balancing the demands of school and taking care of the house and kids. The Veteran was afforded another VA examination in November 2016 where she reported that she had completed her bachelor’s degree in 2014 and also had twins. After the birth of her twins, she reported having more trauma nightmares and panic attacks. She also reported an increase in her symptoms of paranoia and anxiety. She reported that she had seen a trauma counselor at the Vet Center from 2012 to 2014. The examiner noted that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was afforded another VA examination in August 2017 where the examiner noted that the Veteran suffered from occupational and social impairment with reduced reliability. At the Board hearing, the Veteran testified that she talked to her pastor daily to help her get into a “decent head space.” See Board Hearing Transcript, p. 4. She testified that she had daily suicidal thoughts. Id. at 5. She also testified that she experienced nightmares and had tried medication to help reduce their occurrences. Id. at 5. She testified that if she doesn’t have to go out, she doesn’t, and she barely takes care of her basic hygienic needs. Id at 6. She testified that her symptoms have been this way since 2013/2014. She and husband were not intimate and she slept in a separate room from him. Id. at 7. She testified that her fear of men, due to her military sexual trauma, caused her to be late to her son’s doctor’s appointment because she didn’t want to get out of the car after seeing 2 men near an elevator. Id. at 8. On an average day, she sits home alone with the doors locked and curtains down. Id. at 9. The Veteran was most recently afforded a VA examination in November 2019 where she reported that her and her husband were merely existing in their marriage. She took care of the kids and he worked. She denied doing more than the minimum required to sustain her children and denied having any hobbies or friends. She was pursuing a master’s degree in social work – a program she started in June 2019. She reported that she took medication for her psychiatric disability but found the medication unhelpful. She reported that she experienced suicidal ideations in the past and had one 3 days prior. She denied that the thoughts were a daily occurrence. She reported that as long as she was home, she was ok, but experienced heightened anxiety when outside. The examiner noted that the Veteran suffered from occupational and social impairment with deficiencies in most areas. Based on the foregoing the Board finds that an increased rating is not warranted at anytime during the period on appeal. The Board notes that the Veteran’s staged ratings are appropriate as the Veteran’s severity of symptoms varied. In that regard, prior to November 21, 2016, there is evidence that the Veteran experienced occupational and social impairment with occasional decreases in work efficiency. The Board credits the March 2012 VA examination report which noted the Veteran’s lay statements and provided an assessment of her current symptoms. The Board further credits the Veteran’s statements to the VA examiner and to the Vet Center counselor. Although the Veteran struggled with balancing school and home life, she appeared to be able to manage on a daily basis. The Board has considered that there were times when she was outside of her house where she did well and when she didn’t. Her therapy with the Vet Center painted a picture of existent, but mild symptoms. Her symptoms did not appear to cause occupational and social impairment with reduced reliability (required for a 50 percent rating). She completed her college degree and went on to have twins, which she stayed at home to nurture. The Board finds that the Veteran met the criteria for the already assigned 30 percent rating, but no higher, during this period on appeal. From November 21, 2016 to November 14, 2019, there was an apparent increase in the Veteran’s symptoms. In that regard, the Board credits the Veteran’s statements that her incidents of nightmares increased and she struggled with the meeting the needs of herself and her now 3 children. The Board credits the November 2016 and August 2017 VA examination reports which appear to document the Veteran’s increased PTSD symptoms. The Board finds that the Veteran met the criteria for the already assigned 50 percent rating, but no higher, during this period on appeal. From November 14, 2019, the Board finds that there was an increase in symptoms and this is the first time the Veteran endorsed occasional suicidal thoughts (other than at the January 2019 Board hearing). It is noted that although the Veteran experienced certain symptoms, there also must be evidence that these symptoms cause occupational and social impairment. Here, the Veteran endorsed symptoms of frequent panic attacks when leaving the house which caused her to grocery shop online; conduct parent teacher conferences over the phone and generally stay in the house on a daily basis. The Veteran’s symptoms appear to cause occupational and social impairment in most areas. Therefore, the Board finds that the Veteran meets the criteria for the already assigned 70 percent rating, but no higher, during this period on appeal. Finally, the evidence of record does not reflect symptomatology of the Veteran’s PTSD that would meet the criteria for a rating of 100 percent at anytime during the appeal period. Although the evidence demonstrates, from November 14, 2019, a significant degree of occupational and social impairment due to her PTSD, it does not show total occupational and total 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Indeed, the record identifies that the Veteran has reported experiencing suicidal ideations in the past. At the Board hearing, she reported that there were daily, but at every VA examination, with the exception of the November 2019 examination, and at her previous Vet Center visits, she denied experiencing them altogether. Therefore, the Board does not assign probative value to her statements of daily occurrences of suicidal thoughts. Recently, at her November 2019 VA examination, she endorsed occasional thoughts, thereby not rising to the level of “persistent” as required for a 100 percent disability rating. There is no evidence that the Veteran does not know her name, occupation or close relatives. 2. Entitlement to TDIU The Veteran contends that she is entitled to TDIU because she has difficulty concentrating and working with others. See Board Hearing Transcript, pp.9-10. For the reasons explained below, the Board finds that entitlement to a TDIU is not warranted. Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defined substantially gainful employment as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.” See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(d). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The term unemployability is not synonymous with the terms unemployed and unemployable for the purposes of determining entitlement to TDIU. A Veteran may be unemployed or unemployable for a variety of reasons, but a determination as to entitlement to TDIU is appropriate only when a veteran’s unemployability is the result of a service-connected disability. See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(c). 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is service-connected for PTSD, rated as 30 percent, 50 percent and 70 percent disabling; degenerative disc disease, rated as 40 percent disabling; and radiculopathy of the right and left lower extremities, rated as 10 percent disabling. Her combined rating is 60 percent from January 23, 2012; 70 percent from November 21, 2016; and 90 percent from November 14, 2019. The Board denies entitlement to TDIU as a matter of law. A Veteran must cooperate when she is asked for information that is essential in obtaining the evidence to substantiate her claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additionally, a substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. VA Adjudication Manual M21-1 IV.ii.2.F.2.b. However, the Veteran did not return a completed VA Form 21-8940 to support her claim. In October 2019, the Board remanded the matter to provide the Veteran with notice regarding how to substantiate her TDIU claim (to date she has not responded). Under the VA Adjudication Manual, when this form has not been submitted, the issue of TDIU, whether expressly or reasonably raised, will be denied. See M21-1 IV.ii.2.F.4.k, Reasons for Denying IU Claims (deny entitlement to IU if the facts demonstrate that the Veteran has failed to cooperate with development, such as failing to return a completed VA Form 21-8940 when requested). Therefore, entitlement to a TDIU is not warranted; the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.