Citation Nr: 21071063 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-04 754 DATE: November 29, 2021 ORDER Entitlement to an increased rating above 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted since May 16, 2016. FINDINGS OF FACT 1. Throughout the appeal period (since May 16, 2016), the Veteran's PTSD symptoms have most closely manifested in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood (contemplated by a 70 percent rating). 2. Throughout the appeal period (since May 16, 2016), the Veteran's service-connected disabilities have precluded obtaining and maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating above 70 percent since May 16, 2016, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 9411, General Rating Formula for Mental Disorders (2018). 2. The criteria for entitlement to a TDIU have been met since May 16, 2016. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. National Guard, including yearly periods of active duty for training from November 1987 through January 1996 (including from January 1988 to June 1998) and a period of active-duty service from November 1990 to July 1991. In October 2021, the Veteran testified at a Board Virtual Hearing before the undersigned Veterans Law Judge. While a transcript of the hearing has not yet been associated with the claims file, the Veteran informed the undersigned during the hearing that she would be satisfied with her entire appeal if the Board granted entitlement to a TDIU. Given that favorable decision contained herein, the Board may proceed without waiting for the transcript, as that would be harmless error. Entitlement to an increased rating above 70 percent since May 16, 2016, for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The current appeal period begins on May 16, 2016, when VA received an Intent to File, followed by a July 2016 VA Form 21-526EZ requesting entitlement to a TDIU, along with a VA Form 21-8940. The Veteran generally contends that, throughout the appeal period, her service-connected disabilities, including PTSD, have prevented obtaining and maintaining a substantially gainful occupation; notably, during the October 2021 Board Hearing, the Veteran contended that her appeal would be satisfied if the Board granted the TDIU, even if it did not grant a 100 percent rating for PTSD. The Veteran's PTSD is rated during the appeal period under DC 9411 a 70 percent since May 16, 2016. See January 2018 Codesheet; 38 C.F.R. § 4.130, DC 9411, General Rating Formula for Mental Disorders. Under the General Formula for Mental Disorders, a 70 percent rating is warranted when the evidence shows 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 (maximum schedular) rating is warranted when the evidence shows 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Further, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 "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 in most areas."). The Court has also held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that a medical opinion can diagnose the presence of the disability and identify an earlier onset date based on preexisting symptoms). Initially, the Board notes that this claim was certified to the Board after August 4, 2014. See February 2018 VA Form 8. Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal. See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, 4.130 (2017). Accordingly, the Board's adjudication of this claim will not include any discussion of Global Assessment of Functioning (GAF) scores found in the record. Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018). In the July 2016 VA Form 21-8940, the Veteran indicated that her PTSD symptoms were severe enough to preclude her from gainful employment. A September 2016 VA PTSD examination revealed: a continued diagnosis of PTSD; difficulty being around others and feeling on guard and unsafe a lot (including possibly pulling out pepper spray or a stun gun when in crowds); very little sleep (about two to three hours every two to three days); difficulty focusing and with concentration (including difficulty reading); she no longer had a boyfriend; doing a paper route one day per week and volunteering at the local mission; wanting to start making jewelry again, but having problems focusing; and most recently being employed for one year at Hardees in 2014 but having to stop due to feet and gastrointestinal problems. The Veteran's symptoms included: recurrent, involuntary, and intrusive distressing memories of the trauma; dissociative reactions; marked physiological reactions to trauma cues; avoidance of or efforts to avoid distressing memories, thoughts, or feelings about the trauma; avoidance of or efforts to avoid external reminders of the trauma; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance; depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; circumstantial, circumlocutory, or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. The provider indicated that these symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning; ultimately, the provider indicated that the symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The provider added that the Veteran would have difficulty in stimulating environments or around groups of people, would be easily distractable, would be on guard, and would be affected by her chronically poor sleep. In October 2016 Notice of Disagreements (NOD's), the Veteran, in pertinent part, reported that her PTSD prevented her from being around males in employment environments, adding that she always carries a knife with her to feel more secure and safe because she has major trust issues with most males. She also reported that, when in a work environment, she has flashbacks of working with males in the military and the trauma she endured. In the January 2018 VA Form 9, the Veteran, in pertinent part, reported that her PTSD prevented gainful employment because she could not work around people of the opposite sex and that she got very easily scared or timid from the opposite sex, such that she tenses up and has panic attacks if someone touches her unannounced or unwanted. Based on this evidence, including the frequency, severity, and duration of the Veteran's impairment, the Board finds that, throughout the appeal period, the criteria for a higher rating of 100 percent are not met because the evidence does not show that the Veteran's PTSD causes total occupational and social impairment. Specifically, although the Veteran has total occupational impairment from her PTSD (further discussed below in the TDIU section of this Decision), a 100 percent rating also requires total social impairment, which the evidence does not indicate. Although the Veteran reported having no friends and self-isolating, she also reported throughout the appeal period that she still communicated with her children (despite having a difficult relationship with one son) and maintained a paper route and volunteered sometimes (which would likely require her to successfully interact with a supervisor or other coworkers or volunteers). Further, although the evidence above indicated that she has difficulty maintaining hygiene, the evidence did not indicate other symptoms suggestive of a 100 percent rating. Thus, the Board finds that a 70 percent rating, but no higher, is warranted throughout the appeal period. This issue is denied for the same reasons and bases discussed above. 1. Entitlement to a TDIU Schedular TDIU may be assigned when the schedular rating is less than total and it is found that the disabled person is unable to obtain or maintain a substantially gainful occupation as a result of either: (1) a single service-connected disability ratable at 60 percent or more; or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The current appeal period begins on May 16, 2016, when VA received an Intent to File, followed by a July 2016 claim for a TDIU. The Veteran generally contends that, throughout the appeal period, her service-connected disabilities have prevented obtaining and maintaining a substantially gainful occupation; notably, during the October 2021 Board Hearing, the Veteran contended that her appeal would be satisfied if the Board granted the TDIU, even if it did not grant a 100 percent rating for PTSD. Including the increased rating grant herein, the Veteran is service connected for: (a) PTSD (70 percent); (b) asthma (30 percent); (c) right knee degenerative arthritis (20 percent); (d) left knee degenerative arthritis (10 percent); (e) bilateral pes planus, right achilles tendonitis, and right foot degenerative joint disease (10 percent); (f) left ankle degenerative arthritis (0 percent); (g) sinusitis (0 percent); and (h) residuals of right tubal ectopic pregnancy with right ovary removal (0 percent). See January 2018 Codesheet. As such, the Veteran has met the criteria for schedular TDIU consideration throughout the entire appeal period. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In addition to the occupational impairment already described above in the increased rating section of this Decision, the Board notes that there is additional evidence in support of the TDIU claim. In the July 2016 VA Form 21-8940, the Veteran reported part-time work at Hardees from March 2014 to May 2015, including months of time lost from illness and leaving that job due to disability; she further reported completing two years of college. In the October 2016 NOD's, the Veteran also reported that back, legs, and knees issues prevented daily activities and certain job tasks. In a November 2016 VA Form 21-4192, the Veteran's former employer Hardees confirmed part-time employment from March 2015 to May 2015 and having to leave for medical reasons. In the January 2018 VA Form 9, the Veteran also reported that her: (a) asthma prevented her from breathing properly, especially in dirty environments or depending on the season, and she usually has to find a private place to catch her breath; (b) bilateral knees caused her great discomfort and pain, prevented her from standing for long periods because the pain radiated throughout her legs, required her to keep moving and bending her knees to prevent them from cramping or locking up, have caused her to fall to the ground without warning several times when locking up, and require her to be careful when walking on uneven surfaces or up and down stairs; and (c) left foot also prevents her from standing for long periods because her left foot goes numb and tingly to the point of pain. Based on the evidence above, the Board finds that the Veteran's service-connected disabilities preclude obtaining and maintaining a substantially gainful occupation. Specifically, the evidence demonstrates a longitudinal pattern of mental and physical functional loss that would more likely than not require accommodations, excessive absenteeism, or unscheduled absences beyond what is likely allowed by typical employers. The evidence further indicates that her PTSD symptoms would more likely than not make her unsuccessful in interpersonal interactions with coworkers and supervisors (especially male) and impair concentration, persistence, pace, and performance such that she would likely not even be able to consistently fulfil the very basic requirements of unskilled, entry-level work. Thus, the Veteran's service-connected disabilities would more than likely prevent her from effectively and safely participating in a substantially gainful occupation. As such, a schedular TDIU is warranted and the Board grants the claim as of May 16, 2016, the date VA received her intent to file, which was following by a claim of entitlement to a TDIU, the first evidence in the claims file of unemployability. Finally, due to the Veteran's indication during the October 2021 Board Hearing that her appeal would be satisfied if the Board granted the TDIU (even if it did not grant a 100 percent rating for PTSD), the appeal resolved in full. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.