Citation Nr: 21074157 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-09 059A DATE: December 14, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) to include depression, anxiety, insomnia, and panic attacks is denied. Entitlement to total disability rating based on individual unemployability (TDIU) due to a service-connected disability is denied. FINDINGS OF FACT 1. For entire appeal period, the Board finds that the Veteran's PTSD to include depression, anxiety, insomnia, and panic attacks has not resulted in total occupational and social impairment. 2. The Veteran's service-connected disability does not preclude her from securing and following gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD to include depression, anxiety, insomnia, and panic attacks have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 7, 2015 to June 27, 2015, with additional service in the Army National Guard of Missouri. This case was initially before the Board in August 2021, when the issues were remanded for additional development. An October 2021 supplemental statement of the case (SSOC) was most recently issued and the claims are once again before the Board. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating 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. 1. Entitlement to an initial rating in excess of 70 percent for PTSD to include depression, anxiety, insomnia, and panic attacks. The Veteran's PTSD to include depression, anxiety, insomnia, and panic attacks is evaluated as 70 percent disabling under DC 9411, throughout the period on appeal, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under Diagnostic Code 9411, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. The maximum rating of 100 percent requires 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; and memory loss for names of close relatives, own occupation, or own name. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. A review of the pertinent evidence reflects that a rating in excess of 70 percent is not warranted for any period of the appeal. During the pendency of the claim the Veteran's symptomatology as a whole does not manifest as total occupational and social impairment, due to such symptoms as (for example only): 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. Here, the Veteran's social functioning does not rise to the severity necessary for a total rating. At an October 2017 VA treatment visit the Veteran reported feeling depressed, sad, empty and had a loss of interest or pleasure. She reported withdrawing from others and crying spells. She also reported racing thoughts, excessive anxiety or worry, panic attacks, marital/relationship problems, and work and school problems. In a November 2017 Statement in Support of Claim, the Veteran reported symptoms of insomnia and depression. The Veteran reported problems trusting males in positions of authority, both in her current unit and in her place of work, as well as in relationships. In a March 2018 VA treatment visit the Veteran reported that she was doing well and going out more and hanging out with her family. She still reported anxiety. A mental status examination at that time revealed that she was alert and oriented to time, place and person and was casually dressed and groomed. No suicidal or homicidal ideations or plans were noted and there were no delusions. Her judgment was described as intact. It was noted that she had social impairment and relationship issues. In an April 2018 VA treatment record, it was noted that she had mild to moderate PTSD symptoms and believed her symptoms had improved in recent months and are mostly well controlled. However, the Veteran reported that she still struggles with poor sleep and occasional feelings of distress when reminded of her trauma. The Veteran underwent an initial VA examination in May 2018 to evaluate her PTSD. The examiner stated that her mental disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although she was generally functioning satisfactorily with normal routine behavior, self-care and conversation. The Veteran reported having a few friends but that she does not like a lot of people. She reported hanging out with her sister and her boyfriend. The Veteran's symptoms were noted to include depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. The examiner noted that she denied thoughts of suicide, homicide, delusions and hallucinations. Her judgment and insight were noted to be fair and she was oriented to person, place and time. In a September 2018 VA treatment record it was noted that there had been no significant changes in the Veteran's mental status since her last appointment in April 2018. No new risk factors relevant to suicide or homicide were reported. In a statement signed in September 2018 the Veteran reported having inappropriate behavior and language, unexplained absence, poor work performance and inability to stay on tasks. She reported that recent changes of employment have caused economic hardships and onset of chronic depression. She reported that she struggled with building/maintaining relationships and had increased nervousness to the point it makes her sick to her stomach. She reported difficulty maintaining personal hygiene, and had lack of motivation to do anything. In the Veteran's September 2018 notice of disagreement, she reported that she could not keep steady employment due to outbursts and inappropriate behavior. She reported struggling in social settings and having almost ruined every friendship and relationship. The Veteran underwent an additional VA examination in October 2018. The examiner noted that the Veteran's mental health disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms are controlled by medication. Symptoms of her service-connected psychiatric disability were noted to include anxiety and chronic sleep impairment. The VA examiner stated that the Veteran was oriented with no agitation and had no auditory or visual hallucinations. Her grooming, hygiene, eye contact, cooperation, insight and judgment were described as adequate. She was noted to have normal speech. Her thought process was described as logical and goal directed. Her thought content was described as not bizarre or delusional. The Veteran submitted a November 2018 PTSD Disability Benefits Questionnaire (DBQ). It was noted that the Veteran had total occupational and social impairment. It was noted that the Veteran had most recently been fired from her job because of being "combative." Numerous symptoms were noted to be exhibited, including many found in the criteria for a 100 percent disability rating. Significantly, this examination report was not signed and it is not noted who completed the examination report. Little probative value is thus accorded to his examination. At a December 2018 VA treatment visit the Veteran reported that her anxiety attacks had gone down. In a March 2019 VA treatment visit it was noted that she has about 2-3 panic attacks a month which is a significant decrease. She reported that she is still having good days and bad days, but her lows were not as low. It was noted that she was an officer now and got a promotion to a higher GS level; she reported having more autonomy and really liking her job. Her thought content was described as logical and she denied suicidal ideation and homicidal ideation. Her grooming and hygiene were noted as "going well." In her March 2019 substantive appeal, the Veteran reported that she had been reprimanded and fired due to being combative and it was hard for her to keep a job due to her social impairments and also because she misses too much work for doctor appointments at the VA to get help. She reported being in the process of being medically discharged from the National Guard due to her mental disorder. A May 2019 statement submitted from a fellow service member noted that the Veteran struggles with daily job functions like focusing and cannot sleep well at night. In an April 2020 VA treatment record, it was noted that her mood was good and she had no issues with depression or anxiety at this time. She reported that her condition was well controlled with medication. The Veteran was afforded an additional VA examination in October 2021. The examiner noted that the Veteran's service-connected psychiatric disability results in occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran was in the process of getting a divorce. It was noted that the Veteran was currently working on a degree in healthcare administration online and was also working with an insurance company 20 hours a week from home. She reported that her employer was very accommodating to her schedule and she enjoyed the work. Symptoms of the Veteran's psychiatric disability were noted to include depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and disturbances of motivation and mood. The Board finds that the examinations of record and the hundreds of pages of medical records reviewed support that the evidence as a whole is reflective of symptomatology that provides the basis for the 70 percent rating. The Board notes that the Veteran's reported social functioning has been consistent throughout the period on appeal, with some social isolation and some contact with close relatives. Thus, while limited, she is still able to continue relationships with some people. Moreover, although the evidence reflects issues with employment, a rating of 100 percent is only warranted for both total social and total occupational impairment. Such has not been shown in this case. Therefore, the Board concludes the criteria for a 100 percent rating for an acquired psychiatric disability have not been met. See 38 C.F.R. § 4.130, DC 9411. The Veteran's own statements, treatment records, and signed examinations reflecting how her PTSD disability impacts her, overall, provide strong evidence against this claim, clearly indicating the problems cited within the 100 percent rating have not been met. In summary, while the Veteran is significantly socially and occupationally limited by her service-connected PTSD to include depression, anxiety, insomnia, and panic attacks, providing the basis for the 70 percent disability rating already granted for the period on appeal, the evidence fails to show that this impairment is "total" so as to warrant a 100 percent schedular rating. In reaching its decision, the Board has considered the benefit of the doubt rule. However, the preponderance of the evidence reflects the Veteran's symptomatology more closely approximates that contemplated by a 70 percent evaluation. Therefore, the benefit of the doubt rule does not apply, and the claim for increase is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to TDIU A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 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 such 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). In Ray v. Wilkie, 31 Vet. App. 58 (2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court provided guidance as to the meaning of a veteran's ability to secure and follow such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Id. at 73. 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 the veteran is 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). Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). Here, the Veteran meets the percentage requirements for a TDIU, for the entire period on appeal, based on her service-connected PTSD to include depression, anxiety, insomnia, and panic attacks. In a May 2019 VA Form 21-8940, Application for TDIU, the Veteran reported that her service-connected psychiatric disability prevents her from securing or following substantial gainful employment. She reported that she became too disabled to work in January 2019. After considering the evidence of record, the Board finds that the Veteran's service-connected disability does not preclude her from securing or following gainful employment. Although the Veteran contends that her service-connected disability precludes employment, the evidence shows otherwise. An October 2017 VA treatment record noted that the Veteran was currently working as a retail manager for the past year. In a November 2017 Statement in Support of Claim, the Veteran reported that following her sexual assault in service she was missing work frequently because she was physically and emotionally drained and sleep deprived. At the Veteran's May 2018 VA examination, she reported that she worked for a federal agency making badges and enjoyed her work. She reported having worked there for 4 months and that she worked in retail prior to that. In the Veteran's September 2018 notice of disagreement, she reported that she cannot keep steady employment due to complete and total occupational and social impairment. She reported that she cannot keep steady employment due to outbursts and inappropriate behavior. A September 2018 VA treatment record noted that the Veteran declined treatment due to a busy work schedule. At an October 2018 VA examination it was noted that the Veteran had worked for the past four months dealing with records and before that had worked for a year as a federal government contractor until her contract ended. A November 2018 VA treatment record noted that the Veteran was employed full time. A January 2019 VA treatment record noted that the Veteran was working for a federal agency. See also October 2019 VA treatment record. A January 2019 VA treatment record noted that the Veteran should be excused from work for three days due to treatment at the VA medical center. A March 2019 VA treatment record noted that the Veteran works full time and is in school and can therefore not participate in the MOVE program. In her March 2019 substantive appeal the Veteran reported that she had been reprimanded and then fired due to being "combative." She reported that it was hard for her to keep a job due to her social impairments and because she misses so much work for doctor appointments to get help. In a VA treatment record, dated five days after her substantive appeal was dated, the Veteran reported getting a promotion to a higher GS level and that she really liked her job. See March 19, 2019 VA Treatment Record. In a May 2019 statement, one of the Veteran's employers noted that the Veteran had worked from November 2018 to January 2019 and had been let go because she missed too many days. The employer noted that the Veteran had been a good employee and tried very hard and was good at her job when she got enough sleep and could focus. The employer noted that occasionally she would have outbursts of anger, but that is expected for a victim of rape. She noted that she hoped the Veteran would seek help and better herself. In a May 2019 statement, the Veteran's prior employer and fellow service member stated that after her stressing event the Veteran had many issues at work. She stated that she did not think the Veteran would ever be able to hold a career job again. In a September 2020 document, associated with Vocational Rehabilitation, the Veteran reported that she was working as an immigration legal analyst. In a statement submitted in June 2021, the Veteran reported that she was going through a divorce and was in great financial distress due to that and losing her job due to COVID-19. The Veteran subsequently underwent a VA examination in October 2021. It was noted that the Veteran was currently working on a degree in healthcare administration online and was also working with an insurance company 20 hours a week from home. She reported that her employer was very accommodating to her schedule and she enjoyed the work. Upon review of the record, the Board finds that the preponderance of the evidence is against the claim. The Veteran's service-connected disability does not present a disability picture indicating that TDIU is warranted. The record reflects that the Veteran's service-connected PTSD is significant, as recognized by the 70 percent rating currently assigned. However, the Board notes that the evidence of record establishes that the Veteran was employed for the vast majority of the appeal period. Therefore, the Board must conclude that there is insufficient evidence to find that the Veteran's education, training, and experience preclude her from securing and maintaining all forms of substantially gainful employment. In sum, although the Veteran does meet the schedular criteria for a TDIU, the preponderance of the probative evidence is against a finding that she is unemployable due to her service-connected disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran's claim for a TDIU, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.