Citation Nr: 21074355 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-30 132 DATE: December 15, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with major depressive disorder is granted from March 30, 2017. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from March 30, 2017. FINDINGS OF FACT 1. From March 30, 2017, the Veteran's PTSD is manifested by symptoms that most closely approximate occupational and social impairment with deficiencies in most areas. 2. Resolving any reasonable doubt in her favor, the Veteran is unable to secure or follow substantially gainful employment due to her service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for PTSD have been met from March 30, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU from March 30, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from January 1999 to June 1999, April 2000 to November 2000, November 2002 to February 2003, and August 2005 to January 2007. These issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2020 Board decision, the Board denied an increased rating for PTSD and entitlement to a TDIU. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2021, the Court issued an Order that vacated the Board's March 2020 decision based on findings that the Board's analyses of the Veteran's PTSD and TDIU claims were inadequate, and remanded the matters on appeal for adjudication consistent with the instructions outlined in the July 2021 Joint Motion for Remand by the parties. Entitlement to an increased rating for PTSD. The Veteran contends that her PTSD symptoms warrant a rating in excess of the 50 percent rating assigned. For the reasons described below, the Board agrees, but finds that a 100 percent rating is not warranted. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 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 50 percent rating is assigned 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 warranted 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 work like setting); inability to establish and maintain effective relationships. 38C.F.R. §4.130. A 100 percent rating is warranted 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. Id. This appeal is based on the Veteran's appeal of an August 2017 rating decision which continued her 50 percent disability rating of PTSD. That rating decision followed a March 30, 2017 intent to file a claim and June 2017 claim for an increased rating. Of note, much of the evidence described below is identical to that of the vacated March 2020 decision, as the facts have not changed. The Veteran demonstrated scattered thinking as well as anhedonia and oversleeping in an April 2017 VA treatment note. The Veteran further reported not wanting to get out of bed and that she was upset by everything. Private treatment notes from May 2017 to August 2017 additionally note that the Veteran denied suicidal and homicidal ideation but she reported that she wanted to "have a stable mood for more than an hour." A July 2017 private treatment note reported rapid mood swings and described the Veteran as being emotionally unregulated. The Veteran was not found to be a risk of self-harm or harm to others. Regarding the Veteran's social functioning, VA examination in August 2017 noted an excellent relationship with her fiancé and adult children but the Veteran denied any active friendships. The Veteran was found to be oriented to time, place, and situation. She was also found to be pleasant, cooperative, and maintained good eye contact throughout the interview. The Veteran's mood was described as anxious with congruent affect. Thought process was found to be linear. The examiner found no evidence of psychosis on examination. Regarding the Veteran's hygiene and grooming, she was noted to be casually dressed and appropriately groomed. The Veteran denied any suicidal or homicidal ideation. Overall, in August 2017, the examiner found that the Veteran's PTSD was moderate in severity which contributed to moderate impairment in social and occupational functioning. In a January 2018 treatment note, the Veteran was found to be fully alert. Attention/concentration were found to be normal. Speech/language noted the following: no dysarthria, language fluent without paraphasic errors, normal prosody. The Veteran was found to be fully oriented to time, place, and purpose with recall of recent/remote biographical data found to be intact. Mood was described as "good" with full range of affect. A mental status examination was conducted in November 2018. The Veteran was found to be fully alert and able to follow all commands. Speech/language noted the following: no dysarthria, language fluent without paraphasic errors, normal prosody. The Veteran was oriented to time, place, and situation. Mood was described as "irritable to situation" with a full affect range. In an April 2019 examination the Veteran was described as casually dressed and appropriately groomed. She was alert and fully oriented. Her eye contact was appropriate. Speech was clear and fluent with normal volume, rate, and tone. She was reciprocal in conversation. Expressed thoughts were found to be logical and goal directed. There was no evidence of psychotic thought process or delusional content observed. Her mood and affect were described as "anxious, tired, and discouraged. She was pleasant and engaged throughout the interview. Cognition was intact for the purposes of this evaluation. The examiner also noted overlapping symptoms of irritability, anhedonia, anxiety/agitation, sleep disruption, entrenched negative beliefs about self and others, and subjective cognitive inefficiencies/defects. The Veteran reported being independent in activities of daily living, but reported difficulty keeping up with household chores and complained of periods of difficulty getting out of bed and motivating herself to do anything, including showering. She also complained of frequent motivational deficits, being overwhelmed, chronic difficulties focusing, getting bored, and being frustrated easily. The Veteran reported complaints of a lack of purpose and meaning in her life, chronically unrestorative sleep, occasional nightmares, psychological and physiological reactivity to trauma cues, periodic emotionality and crying jags, avoidance of trauma-related thoughts/memories, frequent boredom vs. overwhelmed/frustration, pessimism about her job prospects, irritability and verbal temper outbursts, episodic prolonged depression with motivational deficits and social withdrawal, feeling "always in a fog" mentally, worries about her health, chronic fatigue and periodic psychomotor retardation, impaired focus and memory, chronic, daily "unhappiness" since her military discharge, labile mood, anxious/negative ruminations, self-criticalness and disappointment, feelings of failure, and morbid thoughts. The following symptoms were noted on examination: depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in adapting to stressful circumstances. Socially, the Veteran reported her continued relationship with her fiancé as "solid" but struggled with her increased dependency on him over time as she prided herself on her independence and self-sufficiency. She also reported regular contact with her mother and siblings and "very close" relationships with her adult children, but denied any close friends. She reported a history of suicidal ideation but denied any recent thoughts of self-harm. The examiner found that the Veteran's symptomology led to occupational and social impairment with reduced reliability and productivity. The Veteran's April 2019 examiner also found that the evidence did not support the Veteran's contention that she was unable to achieve and sustain gainful employment due to her mental health conditions; indeed, the examiner suspected that employment would be highly beneficial to her. The examiner found that the main barrier to work did not appear to be the Veteran's mental health symptoms but her history of felony conviction and incarceration. It was noted that the Veteran had been sober from all illicit substance since 2015, and she reported sustained sobriety from alcohol for over 10 years. She was found to be intelligent, had specialized skills, and was motivated to work. During a private, November 2019 evaluation, the Veteran reported being "constantly" anxious and hypervigilant. She also reported experiencing four debilitating flashbacks each week, requiring hours to recover. She also reported unprovoked irritability, impaired motivation, and difficulty completing simple tasks, including maintaining personal hygiene, due to her PTSD. In addition, she reported immense relationship and interpersonal stress, social isolation, which have worsened over time. She further reported that her severe anxiety and stress impacted her cognitive functioning, including her memory, ability to concentrate, word formulation, and speech output. She also complained of significant sleep difficulties due to nightmares, anxiety, racing thoughts, and hypervigilance. She required cues from her fiancé regarding bathing and changing her clothes. She occasionally attempts to perform housework "in spurts but not every day." She reported that her fiancé performed all grocery shopping, cooking, and laundry. The examiner then noted the Veteran's educational history, obtaining an associate degree in general studies, a bachelor's degree in journalism and political science, and had begun work on a master's degree in clinical psychology, but withdrew from her classes due to her mental health symptoms. The examiner also noted that the Veteran last worked as an assistant store manager for Walmart from November 2007 to November 2010. During this time, the Veteran reported experiencing daily panic attacks, frequent verbal altercations with coworkers and customers, and difficulty focusing on her job responsibilities. She estimated that she missed two to three months of work due to her PTSD symptomology. The examiner then found that the Veteran was unable to secure or follow substantially gainful employment, including unskilled work, since at least November 2010. The examiner found that the Veteran's PTSD symptomology manifested by: interpersonal difficulties, impaired memory, irritability, hypervigilance, racing thoughts, negative mood, flashbacks, suicidal ideations with prior attempts, crying spells, impaired motivation, a tendency to isolate, severe limitations in accepting instructions and responding appropriately to feedback from supervisors, maintaining appropriate social behavior, interacting with coworkers, peers, and the general public, as well as significant difficulties with maintaining concentration, focus, and pace. The examiner then noted that the Veteran was unable to meet the following basic employment standards, regardless of skill set: (1) sustaining focus and attention for at least two hours at one time throughout the work day; (2) refraining from taking unscheduled or prolonged breaks away from the work station; (3) attending work on a regular basis, free from excessive unscheduled absences, tardiness or early departures; (4) producing a certain, minimal amount of work while on the job; and (5) getting along with coworkers and supervisors in order to maintain a professional and productive work environment. The Board finds that, affording the Veteran the benefit of the doubt, a higher, 70 percent, rating is warranted from the date of the Veteran's intent to file an increased rating claim, March 30, 2017. In so finding, the Board notes that in April 2017 and again in April 2019, the Veteran's VA examiners found that her overall impairment was best described as occupational and social impairment with reduced reliability and productivity, the level of impairment described in the lower 50 percent rating. However, more severe symptoms, to include the Veteran's description of near-continuous panic and depression, are described as occurring throughout the appeal period in a November 2019 private report. Considering the totality of the evidence and resolving the benefit of the doubt in the Veteran's favor, the Board finds that a 70 percent rating, but no higher is most appropriate. Further, while the Veteran has been granted a total disability rating based on individual unemployability due to PTSD she was not totally socially impaired and a 100 percent rating is not warranted in this case. The Board notes that the Veteran expressed suicidal ideation during a November 2019 private evaluation which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during her VA examinations. Further, while the Veteran is shown to have social and occupational impairment, she is shown to have good family relationships, her impairment in thought process or communications are not found to reach the level of "gross impairment" while the Veteran reports being in a fog, she is also found in many examinations to have normal thought processes and effective communication, and persistent delusions and hallucinations are not demonstrated. The Veteran is shown to be irritable but behavior is not grossly inappropriate. Additionally, while there is some impairment in grooming and her ability to get out of bed and care for her home demonstrating impairment in maintaining hygiene, she is not shown to have an inability to maintain such. Finally, the totality of the evidence does not suggest that she is disoriented to time and place, nor is her memory shown to be of such a severity as comparable to forgetting names of close relatives, or her own name. As such a 70 percent, but not a 100 percent, disability rating best approximates the Veteran's level of impairment. TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience due to his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there must be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Substantially gainful employment is employment "which is ordinarily followed by the non-disabled 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). The central question is whether the Veteran's "service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Non-service-connected disabilities and advancing age are not considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, given the decision above, from March 30k, 2017, the Veteran meets the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). The Veteran is service connected for an acquired psychiatric disorder, rated at 70 percent. The Veteran contends that she is entitled to a TDIU as a result of her service-connected disabilities. A TDIU claim, either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has raised the issue of a TDIU as part of the increased rating claim on appeal. When evaluating TDIU entitlement, the pertinent inquiry is whether a claimant's service-connected disability alone is of sufficient severity to produce unemployability. The impact of non-service-connected disabilities is not to be considered. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). The ultimate question is whether a claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Notably, in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in §4.16 (b) to have two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58 (2019). A review of the Veteran's post-service VA and private treatment records reveals continuous treatment for her service-connected psychiatric symptoms. VA examinations detail how the Veteran's psychiatric symptomology affected her employment; however, the examiners did not find that the Veteran's psychiatric symptomology precluded her from obtaining or maintaining gainful employment. Instead, the evidence shows that the Veteran was motivated to return to work, that she regretted leaving her last position in 2010, that she has attempted to secure employment since 2010, but her 2015 felony conviction and incarceration were her main limitation to securing employment, and that she worked with her husband on several jobs. In contrast, the November 2019 private vocational assessment found the Veteran was unable to secure or follow substantially gainful employment as a result of her PTSD symptoms. In that report, following a review of the Veteran's claims file, the evaluating rehabilitation counsellor found that the Veteran's PTSD symptoms, specifically her inability to interact appropriately with others, would preclude her ability tow work and that there was no field which would allow an employee to work in absolute isolation. It was explained that the Veteran's intense anxiety, irritability, and tendency to isolate for prolonged periods would not be tolerated by employers nor could the Veteran adhere to directives, interact with co-workers and supervisors, or adapt to changes in the workplace. In so finding, the evaluating certified rehabilitation counsellor disagreed with the Veteran's April 2019 examiner's findings that the Veteran's main barrier to work was her felony conviction and incarceration. She explained that the examiner failed to take into consideration that the Veteran was convicted of a felony after she was last employed and she experienced significant impairment prior to that conviction, indicating that her symptoms, and not her criminal record, precluded later employment. She stated that it was her vocational opinion, given the Veteran's inability to sustain adequate pace, productivity, and inability to work with others that her PTSD with major depressive disorder was the most significant barrier to employment. She further explained that the Veteran would not be able to execute the work skills she had obtained due to the inability to concentrate, maintain persistence, and pace, or recall multi-step tasks. Having considered the above, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran is unable to secure or follow substantially gainful employment due to her service-connected psychiatric disability. A TDIU is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Slovick, 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.