Citation Nr: 21073462 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-44 398 DATE: December 8, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder with depressive disorder (PTSD) is denied. Entitlement to an effective date of November 3, 2011, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to an effective date of November 3, 2011, but no earlier, for the award of basic eligibility for Dependents' Education Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's PTSD has not more nearly approximated total occupational and social impairment. 2. The Veteran filed a claim for PTSD on November 3, 2011 and filed a notice of disagreement within a year of the September 2013 rating decision for an increased rating, which has since continuously been in appellate status. 3. The Veteran's claim for TDIU is associated with the Veteran's claim for an increased rating for her PTSD. 4. From November 3, 2011, the Veteran's PTSD precluded her from securing or following a substantially gainful occupation and was reasonably raised by the record. 5. From November 3, 2011, the Veteran was permanently and totally disabled due to her PTSD with depression. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to an effective date of November 3, 2011, but no earlier, for the award of a TDIU are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340 , 3.341, 3.400, 4.3, 4.16. 3. The criteria for entitlement to an effective date of November 3, 2011, but no earlier, for the award of DEA benefits under 38 U.S.C. Chapter 35 are met. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1982 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) from September 2013 and August 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's VA Form 9s she requested Board hearings; however, in August 2021, she withdrew her request for a Board hearing. As such, the Veteran's hearing request is withdrawn. See 38 C.F.R. § 20.704(e). 1. Entitlement to an initial rating in excess of 70 percent for PTSD is denied. The Veteran's PTSD is currently rated at 70 percent disabling. She contends that throughout the entire appeal her PTSD has been more severe than the currently assigned rating and that she is entitled to an increased rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's PTSD is rated at 70 percent disabling under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. As this is an initial rating, the evidentiary period on appeal begins on November 3, 2011, the effective date of service connection. 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.). Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned when the psychiatric condition produces 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 100 percent rating is warranted when there is total occupational or 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. After a review of the medical and lay evidence, the Board finds that a rating in excess of 70 percent is not warranted at any point during the appeal period. The evidence shows that the Veteran's PTSD produces deficiencies in most areas due to such symptoms as: intrusive distressing memories; hypervigilance; avoidance behaviors; persistent depressed mood; fatigue; crying episodes; anxiety; suspiciousness; chronic sleep impairment; difficulty in understanding complex commands; disturbances of motivation and mood; impaired impulse control; speech intermittently illogical, obscure, or irrelevant; impaired abstract thinking; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impairment of short and long-term memory; inability to establish and maintain effective relationships; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. See June 2012 VA examination; July 2013 Lay Statement; July 2013 Correspondence; August 2013 VA examination; December 2013 VA treatment note; April 2016 Private treatment note; May 2016 Private treatment note; March 2018 VA treatment note; March 2018 Evaluation. Conversely, the Board finds that the Veteran's symptoms do not more nearly approximate a rating of 100 percent as they are not of such a severity or frequency to result in total occupational and social impairment. In this regard, there is no medical or lay evidence in the record of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; or disorientation to time or place. The Board notes the March 2018 evaluator note of neglect of personal hygiene based on an intermittent inability to perform daily activities, but the record does not reflect that it rises to the level of 100 percent social impairment, as the record reflects that she is able to provide for herself and care for her children. See March 2018 Evaluation. As for the symptom of severe memory loss, this is based on traumatic events and recent events, and the record does not reflect that the Veteran does not remember her close relatives' names or her own name. An October 2011 VA treatment note revealed the Veteran was well-groomed and appropriately dressed in casual attire, wearing jewelry and make-up and that her thought process was logical, coherent, and goal-directed. A February 2015 treatment note revealed her thought process was relevant, organized and goal-directed, but somewhat vague; her judgment was within normal limits; and her insight was fair. The May 2015 VA examiner noted the last year's VA medical reports noted no disorientation, memory problems or impairment with thought process and that there was no indication that the Veteran would have difficulties or problems maintaining standards of cleanliness or attending to her personal needs. A February 2018 VA treatment record noted her thought process was normal, linear, and goal-oriented, and there was also subjective forgetfulness noted. The Board notes that although the Veteran presented at the emergency room due to depression, and prior to that completed 12 weeks of psychiatric treatment, she has never been hospitalized for her psychiatric conditions. See December 2013 VA treatment note. The Board acknowledges the March 2018 evaluator's opinion that the Veteran should be rated at 100 percent for her disability, but this opinion is of no probative value based on the other contemporaneous evidence of record. Notably, none of the VA examiners opined or indicated that the Veteran was totally occupationally and socially impaired. As to social impairment, the record reflects she has severe deficiencies, noting an inability to establish and maintain effective relationships. However, a June 2012 VA examination noted that she has four friends that she talks with and lives alone with her two children. An August 2013 VA examination noted that she is close with her siblings. A March 2018 evaluation noted that she got along with her children and has a good relationship with her two younger brothers. The record notes that she goes to visit her son in jail. See March 2018 Private evaluation. Thus, the Board finds that the Veteran has maintained a relationship with her family and friends and has otherwise demonstrated an ability to maintain some social relationships, despite social impairments. Moreover, while the Veteran did not complete school due to her PTSD, she was still able to enroll and attend at least some classes, albeit with extreme difficulty. As to occupational impairments, the record indicates she was last employed in 2003. Her February 2015 (uploaded February 2018) VA Form 21-4138 indicates that she attempted to work at a call center several years prior, but she had to quit because she was paralyzed by fear, depression, and stress, and she had trouble retaining information on the job. To that end, the Board notes that the Veteran has been awarded a TDIU throughout the appeal period, as will be reflected in the instant decision (see below) constituting a full award of benefits sought on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board notes that the evidence of record shows the Veteran has additional symptomatology not enumerated in the rating criteria, including intrusive distressing memories, hypervigilance, avoidance behaviors, fatigue, and crying episodes. However, the symptoms listed in the rating criteria 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. These additional symptoms are not seen as effecting more than a reduction in reliability and productivity. See Mauerhan, 16 Vet. App. 436. As to suicidal ideations, the Board acknowledges the Veteran's statements that she has suicidal ideations but does not act on them due to her children. See July 2013 Correspondence; March 2015 VA treatment note; April 2016 Private treatment note; May 2016 Private treatment note; January 2018 VA treatment note. Moreover, the August 2013 VA examiner remarked that she does not appear to pose any danger or threat of danger to herself or others. As to impaired impulse control, the Veteran has consistently reported anger and irritability. The Veteran's brother has also reported that the Veteran has anger and irritability issues. See July 2013 Lay Statement. A May 2018 VA treatment record noted that the Veteran yelled at a man who was in line with her at a store and got in her space. The Board finds that her periods of suicidal ideations, angry outbursts, and irritability are contemplated by a 70 percent rating as she does not show persistent danger to herself or others that is characteristic of a 100 percent rating. In sum, for reasons outlined above, a preponderance of the evidence shows that the Veteran's PTSD symptomatology does not more closely approximate the criteria for a 100 percent disability rating, the benefit of the doubt doctrine is not for application, and the benefit sought on appeal is denied. 2. Entitlement to an effective date of November 3, 2011, but no earlier, for the award of a TIDU is granted. While the Veteran did not file a claim entitlement to a TDIU until January 2015, that issue is part and parcel of her claim seeking an increased initial rating for PTSD. See Rice, 22 Vet. App. 447. Thus, the period on appeal is from November 3, 2011, the date of claim for PTSD. The RO has determined that the Veteran meets the criteria for a TDIU. See August 2018 Rating Decision. The Board will not disturb this favorable finding and will focus on the correct effective date for that award. The Veteran is presently in receipt of a TDIU from January 27, 2015, the date she filed her TDIU claim. The evidence shows that she last worked in May 2003. See January 2015 VA Form 21-8940; May 2016 Social Security Earnings; June 2016 Third Party Correspondence. The Veteran is in receipt of an initial 70 percent rating for PTSD for the entire period on appeal and meets the schedular criteria for a TDIU throughout the appeal. Here, the Board will award a TDIU from November 3, 2011 the day she filed her claim for PTSD. The Board notes that the record reasonably raises the claim for TDIU. In an August 2011 VA treatment record, the clinical psychologist essentially opines (when read liberally) that her psychiatric conditions are debilitating in such a way that has significantly diminished her capacity to work, and the Veteran reported later that month that her self-esteem concerns interfered with seeking employment such that she was no longer seeking to work. The Veteran's July 2013 Correspondence noted it was hard for her to concentrate on her job and take tests in order to obtain promotions on her job, and that it is hard for her to remain focused and complete a task. Moreover, the March 2018 private evaluator opined that the Veteran's PTSD precluded her from securing or following a substantially gainful occupation at least from November 2011. The Board notes that it will not prejudice the Veteran in denying her TDIU benefits for this appeal period because she attempted to pursue a college education, particularly as it is clear she was not able to continue due to her PTSD. 3. Entitlement to an effective date of November 3, 2011, but no earlier, for the award of basic eligibility for DEA benefits under 38 U.S.C. Chapter 35 is granted. (Continued on the next page) The RO determined that the Veteran is permanently and totally disabled due to PTSD and the award of a TDIU. See August 2018 Rating Decision. Where permanent total disability is established, the criteria for entitlement to DEA benefits are also met. 38 C.F.R. § 3.807(a)(2). Here, the Board has granted an effective date of November 3, 2011 for the award of a TDIU. The Board will not disturb the RO's favorable finding that the Veteran is permanently and totally disabled from the first day that a TDIU is warranted. Accordingly, basic entitlement to DEA benefits is warranted from November 3, 2011, the first day that the Veteran was permanently and totally disabled due to her service-connected disability. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, Associate 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.