Citation Nr: 21073676 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 19-28 612 DATE: December 9, 2021 ORDER Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder is denied. Entitlement to a total disability rating based on individual unemployability is granted. Entitlement to an earlier effective date for post-traumatic stress disorder is dismissed. Entitlement to service connection for cervical condition is dismissed. Entitlement to service connection for residuals of head injury is dismissed. Entitlement to service connection for sleep apnea is dismissed. FINDINGS OF FACT 1. The Veteran's PTSD symptoms result in occupational and social impairment with deficiencies in most areas of functioning. 2. The Veteran's service-connected psychiatric disability rendered her unable to secure and follow substantially gainful employment throughout the period on appeal beginning September 30, 2014, given her unstable work history and excessive absences prior to her early retirement from employment in 2016. 3. Prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with full understanding of the consequences withdrew the issue of entitlement to an earlier effective date for PTSD. 4. Prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with full understanding of the consequences withdrew the issue of entitlement to service connection for a cervical condition. 5. Prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with full understanding of the consequences withdrew the issue of entitlement to service connection for residuals of a head injury. 6. Prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with full understanding of the consequences withdrew the issue of entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for post-traumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.125, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a total disability rating based on individual unemployability have been met since September 30, 2014. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.340, 4.16. 3. The criteria for withdrawal of the issue of entitlement to an earlier effective date for service-connected PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue of entitlement to service connection for a cervical condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the issue of entitlement to service connection for residuals of a head injury have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the issue of entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from August 1974 to August 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO), assigning an initial rating for the Veteran's PTSD. The Veteran appealed that rating and, during the pendency of that appeal, filed a claim for a total disability rating due to individual unemployability (TDIU) due to her service-connected disability, which was denied in September 2018. In February 2021, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. At the initiation of the hearing, the Veteran's representative notified the Board of the Veteran's desire to withdraw the appeal of service connection of cervical condition, residuals of head injury, and sleep apnea, as well as her appeal for an earlier effective date for PTSD. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). As such, the issues are dismissed and the remaining issues before the Board are entitlement to an increased rating for PTSD and entitlement to an award of TDIU. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Increased Ratings 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Where entitlement to compensation has already 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). However, where the evidence of record indicates fluctuations in the severity of symptoms during the rating period on appeal, an assignment of staged ratings is permissible. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. 1. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder The Veteran contends she is entitled to an initial disability rating of 100 percent for her service-connected PTSD. She is currently in receipt of a 70 percent rating effective September 30, 2014. The question for the Board is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. Upon review of the record, the Board finds that the severity of the Veteran's service-connected PTSD more nearly approximates symptoms contemplated by the 70 percent rating. The Veteran testified she experiences night terrors three to four times a week with chronic sleep impairment of four to five hours per night. She reports outbursts of anger, irritability, grogginess due to medication, daytime tiredness due to lack of sleep, and symptoms of cognitive impairment. She contends her symptoms have resulted in occupational interference such that she sought early retirement from employment. VA and private treatment records and Veteran lay statements show that the Veteran's PTSD was manifested by symptoms explicitly associated with a 70 percent rating. Throughout the appeal period, the Veteran's symptoms have been noted as: anxiety, depressed mood, chronic sleep impairment, flattened affect, concentration difficulties, disturbance of mood and motivation, and inability to establish or maintain effective relationships. These symptoms have been productive of occupational and social impairment with deficiencies in most areas, however, they have not caused the level of total impairment required for a schedular rating of 100 percent. The Veteran was provided VA psychiatric examinations to determine the severity of her PTSD in August 2015, December 2015, January 2016, and July 2018. During the July 2018 examination, the Veteran reported an increase in depressed and anxious mood, memories of trauma, dreams of traumatic experiences, flashbacks, anger and irritability, problems with concentration, sleep impairment, and problems with social and interpersonal relationships. The examiner concluded the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. She presented with normal speech volume, tone, and rate, with a somber or anxious affect but cooperative attitude. Absent from noted symptoms are disorientation to time and place, neglect of personal appearance and hygiene, grossly inappropriate behavior, spatial disorientation, impaired impulse control, obsessional rituals, persistent danger to self or others, or an inability to perform activities of daily living. There is no evidence of suicidal ideation or grossly inappropriate behavior, thoughts, or communication. She was not found to exhibit hallucinations or delusions and did not pose danger to herself or others. There is no evidence of hallucinations, psychotic thought, risk of suicide, or homicidal ideation. While the record notes a 1981 hospitalization for an attempted suicide, the evidence does not show the Veteran has experienced suicidal ideation since that time. The Veteran regularly denied thoughts, intent, or plans involving self-harm in existing treatment records, and at VA examinations. During the 2015 and 2016 VA examinations, the Veteran reported her symptoms as intrusive thoughts, anxiety, insomnia, depression, crying spells, social isolation, flashbacks, paranoia, nightmares, and hypervigilance. The Veteran's initial August 2015 examiner, Dr. JC, concluded her PTSD resulted in occupational and social impairment with reduced reliability and productivity. However, the December 2015 examination, also conducted by Dr. JC, indicates the Veteran experienced total occupational and social impairment based on symptoms of difficulty adapting to stressful situations, an inability to establish and maintain effective relationships, mild memory loss, sleep impairment, suspiciousness, anxiety, depressed mood, and disturbance of mood and motivation. However, these symptoms are most consistent with a rating of 70 percent for psychiatric disability and are supported by contemporaneous and subsequent private treatment records noting normal mental status findings. Review of contemporaneous mental status exams in the Veteran's private treatment record does not show total impairment in social or occupational settings. The Veteran is noted to have full time employment at that time of her December 2015 exam. The Veteran reports she is no longer employed, and the record shows occupational impairment due to missed work for therapy and ongoing treatment. While the evidence demonstrates that the Veteran's occupational functioning is impacted by her PTSD symptoms, this is contemplated by her current 70 percent disability rating. Further, there is no evidence the Veteran has experienced total social impairment due to her psychiatric disability at any time. There is no evidence she is unable to maintain interpersonal relationships. She is noted to have a relationship with her daughter and, at one time, resided with her. The Veteran is currently married with no indication of marital discord and was previously married for 30 years prior to that relationship. The Veteran's psychiatric symptoms are shown to result in occupational and social impairment with deficiencies in most areas, however total social and occupational impairment due to symptoms delineated in the total rating or others on par with the severity of those symptoms is not demonstrated by the medical and lay evidence. The record does not support a finding that the Veteran was unable to perform activities of daily living such as maintenance of personal hygiene, as records throughout the appeal period show normal, neat appearance and grooming. There is no evidence of suicidal ideation or grossly inappropriate behavior, thoughts, or communication. She was consistently observed to have intact thoughts, insight, and memory, neat appearance, good eye contact, and alert and oriented to time, place, and person at regular mental health treatment. There is no evidence of hallucinations, psychotic thought, risk of suicide, or homicidal ideation. While the record notes a 1981 hospitalization for an attempted suicide, the record does not show the Veteran has experienced suicidal ideation since that time. The Veteran regularly denied thoughts, intent, or plans involving self-harm in existing treatment records, and at VA examinations. The Veteran reports symptoms that are not listed such as crying spells, avoidance behavior, detachment, hypervigilance, and intrusive thoughts; however, the Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The evidence does not show a persistence of these symptoms, but rather an increase in severity with stress related to circumstance, such as finances and work. While the Veteran reported symptoms contemplated by a 100 percent rating, such as mild memory loss and difficulty with concentration, the evidence does not show a severity resulting in lapse of memory of her name or occupation. Thus the severity exemplified at the total rating level is not demonstrated. The July 2018 examiner observed normal cognitive functioning with average capacity in memory and executive function. This is supported by the private medical record following the July 2018 examination showing intact judgment, insight, and cognitive ability. There was no indication of gross impairment in thought processes, communication, or inappropriate behavior, and the Veteran was consistently found to be oriented to time, place, and person. The Board finds the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating under the General Formula for Mental Disorders. Rather, the Veteran's symptoms most closely approximate symptoms associated with a 70 percent rating and did not result in total occupational and social impairment. Therefore, the claim for a rating in excess of 70 percent for psychiatric disability is denied. Total Disability Based on Individual Unemployability A total disability rating may be assigned when it is established that service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Substantially gainful employment is 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). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16 (a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for a TDIU is considered an increased rating claim, therefore, the rules governing effective dates for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). For an increased rating, the effective date shall be the later of either the date of receipt of the claim, or the date entitlement arose. As an exception to this general rule, the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(1), (2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38U.S.C. §5107 (b); 38C.F.R. §3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38U.S.C. §5107 (b). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities The Veteran contends she is entitled to an award of TDIU. Specifically, the Veteran asserts she has been unable to obtain or maintain substantially gainful employment due to her PTSD symptoms since her last full-time employment ceased in August 2016. The Veteran is currently service connected for PTSD, rated 70 percent from September 30, 2014. As the Veteran has one disability rated 60 percent or more, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The Veteran testified that she was last employed full time in August 2016. She reports she was unable to maintain her employment due to her symptoms of PTSD, resulting in missed days, late arrivals, and overall difficulty functioning in her work setting as a college instructor. She testified that she accepted early retirement to prevent termination and has not been able to secure gainful employment since August 2016. The Veteran's June 2018 VA Form 21-4192 shows she was employed on a full-time basis from August 2004 to September 2016 as a math instructor with a technical college. She earned her Bachelor of Science degree in education post-service, and Social Security Administration records confirm the Veteran is currently in receipt of Social Security Benefits based on age. Prior to this period, the evidence indicates the Veteran worked as a middle school teacher, however, the Veteran is noted to have an unstable work history following her separation from service. C&P Exam, 1/6/2016. The Board finds the Veteran is unable to maintain a gainful occupation given the severity of her service-connected psychiatric disability. While the Veteran voluntarily left her last full-time position, the evidence shows she sought counseling and treatment for her symptoms, resulting in excessive absences and was ultimately faced with pending termination. The record shows a progression of impaired job performance in the Veteran's employment as early as 2014. A November 2014 letter from her VA social worker shows an absence from work from November 10 to November 17, along with an employer leave request form executed by the Veteran. MTR- Non-Gov, 6/30/2016, pg. 16, 17/33. The Veteran's counselor noted her treatment would be on-going and "necessitate appointments in the future." Id. at 18-23/33. Regular psychiatric treatment also shows a history of missed work and an inability to cope with stressful circumstances due to her symptoms of anxiety and depressed mood. At her December 2015 VA examination, the Veteran reported she had been placed on probation due to excessive absences. The examiner concluded the Veteran experiences significant occupational impairment due to her PTSD, explaining she is unable to work in public, in enclosed spaces, or in a loosely supervised situation, and is unable to interact effectively with coworkers due to irritability and requires little interaction with the public. As a result of seeking early retirement, the Veteran testified she has been displaced from housing several times due to her lack of employment and the resulting financial hardship. The Veteran's July 2018 VA psychiatric examiner opined that her PTSD symptoms resulted in clinically significant distress or impairment in social, occupational, and other important areas of functioning, noting the Veteran's psychiatric symptoms have been exacerbated by stressful life events and circumstances, specifically noting her loss of employment and bankruptcy. The examiner stated, "associated problems include compromised employment status with termination of employment of 11 years in 2016 related to absenteeism and tardiness, and psychiatric symptoms of PTSD, especially anxiety and depression." She further noted the Veteran's PTSD could be "anticipated to disrupt occupational functioning by impairment in cognitive functioning (i.e., difficulties in planning, sequencing, problem solving, focus, attention, and concentration); in short term memory deficits, numbing of responsiveness, and difficulty in monitoring and regulation of memory information." Given the Veteran's employment history in instruction and teaching, necessary skills would reasonably include strong communication skills, adaptability, ability to maintain interpersonal relationships, organizational skills, and the ability to address conflict or stressful circumstances. The evidence shows the Veteran is not capable of maintaining employment utilizing such a skill set, particularly when job performance requires frequent adaptability. The July 2018 examiner opined the Veteran experiences difficulties associated with the nature of work including problems socializing with co-workers, poor communication skills resulting from isolation, and an inability to distinguish between aggression and assertion that may impact the Veteran's skills and abilities. Additionally, she found that work skills, task completion, and work quality may also be impacted by restrictions associated with side effects of medication and coexisting psychological and psychiatric conditions. Similarly, the December 2015 examiner opined the Veteran is unable to remember and follow instructions, use judgment, concentrate, show insight, or think abstractly as a result of her psychiatric condition. As such, the Veteran's symptoms preclude her from performing the mental tasks necessary to maintain employment consistent with her education and work history. Based on her education history, there is no indication the Veteran possesses other skills necessary to obtain substantially gainful employment in another field or practice. There's some indication the Veteran was previously employed at a restaurant, however, it was not noted to be full-time work and is not consistent with the remainder of her employment history, education, or skills and amounts to marginal employment. Given the forgoing, the Veteran's service-connected psychiatric disability preclude her from the ability to secure and follow a substantially gainful occupation consistent with her education, skills, training, and work history. Accordingly, a TDIU is warranted. 38 C.F.R. §§ 3.340, 3.341, 4.16. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tabitha Chapman, 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.