Citation Nr: 21067073 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-27 786 DATE: November 3, 2021 ORDER For the entire appeal period, a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. From June 5, 2020, entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the laws and regulations governing the payment of monetary benefit. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's PTSD has not been productive of total social and occupational impairment. 2. From June 5, 2020, the Veteran's service-connected disabilities combine to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 70 percent rating, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 2. From June 5, 2020, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to April 1986. Although the Agency of Original Jurisdiction (AOJ) did not certify the issue of TDIU as part of this appeal, the Veteran asserted during her November 2020 Board hearing that she was unemployable due to her service-connected PTSD. Therefore, the Board has jurisdiction to consider the issue of entitlement to a TDIU for all of her service-connected disabilities as part of her claim for an increased rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations for rating mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that PTSD is evaluated under Diagnostic Code 9411 which is rated according to the General Rating Formula for Mental Disorders. A 50 percent rating is provided 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. A 70 percent rating is provided 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided 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. 38 C.F.R. §§ 4.125-4.130. 1. Entitlement to an increased disability in excess of 30 percent for PTSD In her November 2016 Notice of Disagreement (NOD), the Veteran asserted that her PTSD symptoms were worse than rated and more closely approximated a higher rating. In January 2016, the Veteran underwent a VA examination for PTSD. She was diagnosed with PTSD. Her symptoms included anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, hypervigilance, exaggerated startle response, sleep disturbance, and a persistent negative emotional state. She noted a very close relationship with her son; however, she was divorced and living alone. She denied a history of hospitalizations or suicide attempts. She did not have any current suicidal or homicidal thoughts. Upon examination, she was well groomed and dressed appropriately. Speech was logical and goal oriented. She was cooperative in answering questions and oriented to person, place, situation, and time. Concentration and attention, as well as judgement and insight, were good. She reported being anxious and her affect was depressed. She was found to be capable of managing her financial affairs. In her November 2016 NOD, the Veteran noted that she had daily panic attacks, difficulty concentrating, constant verbal fights with others, and fatigue. She reported being unable to work directly with children at her daycare as it was too stressful. She stated that her family no longer associated with her, except for her son, due to the continual verbal altercations. She noted that she had difficulty with basic acceptable behaviors. During a February 2017 VA mental health consultation, the Veteran appeared on-time, had fair hygiene and grooming, behavior was normal, eye contact was good, attitude was cooperative, mood was anxious, and affect was appropriate/variable. Speech was relevant, thought processes were logical and goal directed, thought content was relevant, and insight was adequate. There was no suicidality or homicidally. The Veteran was diagnosed with PTSD. In April 2017, the Veteran reported that she quit outpatient group counseling because there were too many men in the group, so she felt unable to express herself. She would be more comfortable in a female group. In a May 2017 statement, the Veteran noted that her statements were taken out of context by the January 2016 VA examiner. The Veteran noted that she was doing better since she stopped drinking alcohol, but that she still had many issues related to her PTSD. She had difficulty concentrating, performing day-to-day operations at work, and was unable to effectively manage her business. In October 2019, the Veteran underwent a private psychological assessment. She was living in a large home by herself and her husband was living in her smaller home by himself. She was experiencing anxiety, depression, and interpersonal relationship issues. She reported being in a constant state of hypervigilance. She avoided being in large crowds or unfamiliar places due to her extreme anxiety. Her depression led her to have passive suicidal thoughts. The Veteran reported frequent panic attacks which were manifested by tightness in her chest, freezing, and an inability to communicate with others. She operated a daycare, but indicated that her PTSD symptoms negatively impacted her ability to operate the daycare. She obsessively checked the locks and ensured that her security cameras were working. She hired additional workers to watch the children due to her panic attacks. She was able to complete activities of daily living such as dressing, cooking, managing her finances, and bathing. She reported passive suicidal ideation, but no intent, means, or plan. She had auditory hallucinations, but they were not commanding. Her mood was anxious and depressed. Her affect was congruent with her mood. Her speech was within normal limits for rate, tone, and clarity. She maintained good eye contact and was engaged in the session. She appeared neatly groomed and dressed in casual attire. During a December 2019 private questionnaire, the Veteran reported loss of interest in activities she once enjoyed, feeling distant from others, irritable behavior, being overly alert, difficulty concentrating, and feeling jumpy. In February 2020, the Veteran's son noted that the Veteran regularly had panic and anxiety attacks. The Veteran feared to be alone, so he had to stay with her. He noticed her psychiatric symptoms worsening as her panic and anxiety attacks increased and the Veteran sought more medication. During an April 2020 private therapy appointment, the Veteran reported severe anxiety due to her boyfriend not respecting her boundaries. He continued to show-up unannounced. She reported anxiety due to fear for safety when she was alone with men. She did not have a thought of self-harm since her last session. During her November 2020 Board hearing, the Veteran reported flattened affect, difficulty with emotion, concentration difficulty, memory deficit, difficulty making decisions, and nearly 6 panic attacks daily. She noted difficulty understanding complex commands or directions as she fixated on making the correct decisions which caused her to overthink and ask many questions. She had difficulty remembering tasks, so her son would make lists for her. She had difficulty socializing with others. She did not report delusions or hallucinations. The Veteran had night terrors and would sleep at her son's house when she had rough days so that she was not alone during a night terror. She occasionally forgot names, but mostly forgot dates. She would occasionally arrive at destinations and not know why she was there. Her private therapist counseled her most days of the week as she was uncomfortable leaving her home and would have panic attacks when talking to strangers. An August 2021 VA treatment note indicated that the Veteran had suicidal thoughts and she was hospitalized to treat her PTSD symptoms. In affording all reasonable doubt, the Board therefore finds that a 70 percent rating is warranted for the entire appeal period. However, an even higher 100 percent rating is not warranted because at no time did the Veteran exhibit 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Although the Veteran indicated that she occasionally had problems remembering names she focused her answer on missing family member's birthdays by a day and the need for multiple calendars at her home. Also, the Veteran would sometimes go somewhere without knowing why; however, the Veteran was generally oriented to time, person, and place. Further, the Veteran reported hallucinations during an October 2019 private assessment, yet she denied hallucinating prior to her appointment and since her appointment, notably during her Board hearing. Therefore, the Board finds that the Veteran's hallucinations have not been persistent as indicated by the 100 percent criteria. Throughout the appeal period, the Veteran was able to complete activities of daily living such as dressing, cooking, managing her finances, and bathing. Her mood was anxious and depressed. Her affect was congruent with her mood. Her speech was within normal limits for rate, tone, and clarity. She maintained good eye contact and was engaged in VA and private medical appointments. She appeared neatly groomed and dressed in casual attire. Therefore, the Board finds that this symptomatology is not of the frequency or duration to warrant the 100 percent rating. The Board notes that the record reflects the Veteran having passive suicidal thoughts without intent as the Veteran denied having suicidal intent repeatedly upon VA examination and VA treatment appointments. Nevertheless, the Board finds that the Veteran's repeated and consistent reports of passive suicidal thoughts rises to the level of suicidal ideation as contemplated by the criteria for a 70 percent rating. See, e.g., Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). In viewing the criteria for the various rating levels, the Veteran's symptoms more nearly approximate the criteria for a 70 percent rating, such as near-continuous panic and depression, hypervigilance, suicidal thoughts, as well as an inability to establish and maintain effective relationships. These symptoms are not contemplated within a 30 and 50 percent ratings and indicate a more severe disability picture. The Board notes that the Veteran endorsed hypervigilance and regular panic attacks as early as January 2016. Accordingly, the Board finds that a 70 percent rating is met, but no higher during the pendency of this appeal In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a 70 percent rating for PTSD for the entire appeal period, but a preponderance of the evidence is against a rating in excess of 70 percent. 2. Entitlement to a TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). VA regulations provide that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, pursuant to the Board's decision this date, the Veteran has been awarded service connection for PTSD, rated as 70 percent disabling from June 30, 2014. The Veteran is also service-connected for residuals of a left knee meniscal tear from June 25, 2019, left ankle osteoarthritis from June 30, 2014, and a surgical scar associated with her left ankle disability, rated as noncompensable (0 percent) from June 30, 2014 and with a 10 percent disability rating from April 2, 2019. The Veteran was assigned a temporary total rating from July 25, 2019 to September 1, 2019, March 28, 2019 to June 1, 2019, and from May 5, 2020 to September 1, 2020. Thus, the Veteran's combined disability rating meets the threshold schedular criteria for eligibility for a TDIU from June 30, 2014. During a January 2016 VA examination, the Veteran reported that she worked for her parent's daycare in the 1990s and opened her own daycare in 2000. In May 2017, the Veteran noted that she did not work some days due to her PTSD symptomatology. Also, she noted difficulty concentrating while performing paperwork duties. The Veteran stated that her business lost substantial reimbursements because she was unable to keep her paperwork in order. In October 2019, a private therapist noted that the Veteran would have several panic attacks throughout the workday. She hired additional workers to watch the children. She stopped taking children on trips in the community due to her "irrational intense fear that something bad will happen." During her November 2020 Board hearing, the Veteran stated that she closed her daycare on June 5, 2020. She had difficulty interacting with parents due to her PTSD symptomatology. She did not believe she could work anywhere else due to her service-connected PTSD. She had panic attacks when talking to strangers. The Veteran's therapist opined that the Veteran was unemployable due to her PTSD symptoms. Further, the therapist talked to the Veteran most days as her treatment requires intensive care, and most likely inpatient care. Based on the above, considering her educational and occupational background with her service-connected PTSD, the Board finds credible the Veteran's testimony that her service-connected PTSD has precluded employment. In viewing the medical evidence of record, as well as the statements by the Veteran, the Board finds the evidence in its totality shows that employment is precluded due to the Veteran's PTSD symptoms. The evidence reflects that the Veteran's PTSD symptoms included suspiciousness, sleep impairment, an inability to establish and maintain effective relationships, suicidal ideation, and daily panic attacks. The evidence reflects that the Veteran owned and operated a daycare for decades; however, the Veteran's son performed much of the interaction with the children and parents while the Veteran handled the paperwork as best as she could. Further, once the Veteran's son quit working at the daycare, the Veteran's symptoms worsened even when she hired additional help. Shortly after the Veteran closed her daycare, in August 2020, the Veteran was hospitalized for suicidal ideation. In November 2020, a private physician opined that the Veteran's PTSD, alone, has caused the Veteran to be unable to secure and follow substantially gainful employment. Further in October 2019, a private therapist noted that the Veteran had difficulty performing her work duties due to daily panic attacks, lack of motivation, and hypervigilance. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. Accordingly, the Board finds that effective June 5, 2020, the day the Veteran was last employed, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, Counsel 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.