Citation Nr: 21075738 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-58 428A DATE: December 21, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol, opioid, sedative, hypnotic, or anxiolytic use disorder due to military sexual trauma, prior to March 31, 2017 is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's PTSD with alcohol, opioid, sedative, hypnotic, or anxiolytic use disorder due to military sexual trauma has not resulted in total social and occupational impairment prior to March 31, 2017. CONCLUSION OF LAW The criteria for an initial disability evaluation in excess of 70 percent prior to March 31, 2017 for PTSD with alcohol, opioid, sedative, hypnotic, or anxiolytic use disorder due to military sexual trauma are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2009 to August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case the Veteran asserted that his PTSD prevented him from working in his November 2016 Notice of Disagreement. The Board interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability at issue on appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a Veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board will 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); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the 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 present. 38 C.F.R. § 4.2. When rating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The schedule for rating mental disorders, including PTSD, is set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the general rating formula, a 70 percent evaluation is warranted if the evidence establishes that there is 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 worklike setting); or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent evaluation is warranted if the evidence establishes that there is 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 oneself 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. Id. PTSD The Veteran seeks a higher initial disability rating for his service-connected PTSD. The Veteran's service-connected PTSD is rated as 70 percent disabling prior to March 31, 2017 and 100 percent disabling thereafter. The applicable rating period is from November 20, 2013, the effective date for the award of service connection through the present. See 38 C.F.R. § 3.400. As the Veteran is currently in receipt of a maximum 100 percent disability rating for his PTSD from March 31, 2017, the Board will focus on the appeal period prior to March 31, 2017. An October 2014 VA mental health note showed the Veteran was groomed and appropriately dressed. He was fully oriented. His affect was restricted. His university classes he was receiving B's, but he said he could do better. His speech was clear, coherent, and goal directed. The examiner assessed the Veteran was not suicidal. A December 2014 VA mental health note showed the Veteran was groomed and appropriately dressed. He was fully oriented. His affect was neutral. His university classes were all C's and an incomplete. His speech was clear, coherent, and goal directed, Denied suicidal/homicidal or violent ideations. He is currently employed at the VA a social worker intern, a job he very much enjoys. A January 2015 VA mental health note stated the Veteran was doing an internship at VA which he was enjoying but was very hard. He stated drinking was the only thing that kept him from waking up screaming. Veteran reported visiting friends in New York. He saw the person who sexually assaulted him at a restaurant. The Veteran was fully oriented. Verbalizations were relevant and goal directed. Speech was within normal limits for both pace and volume. His affect was variable and mood congruent with material content. He teared at times when discussing certain life events. Suicidal/homicidal ideation/intent/plan were denied. After consideration of risk/protective factors, the Veteran was felt to be at low risk for suicide at the time of the session. There was no evidence of an underlying thought disorder exhibited during the session. A February 2015 VA mental health note showed the Veteran was fully oriented. His affect was neutral. Verbalizations were relevant and goal directed. Speech was within normal limits for both pace and volume. His affect was variable and mood congruent with material content. He teared at times when discussing certain life events. Suicidal/homicidal ideation/intent/plan were denied. After consideration of risk/protective factors, the patient was felt to be at low risk for suicide at the time of the session. There was no evidence of an underlying thought disorder exhibited during the session. A March 2015 VA mental health note shows the Veteran is an anxious but cooperative who arrives on time and is appropriately groomed and dressed for the situation and the weather. He is alert and oriented and maintains direct eye contact. He describes his mood today as "not good." His affect is neutral. He reports nightmares. Sleep remains problematic and he continues to report intermittent episodes of sleep walking. His appetite is "OK." He does not smoke. His speech is clear, coherent, spontaneous and goal directed. He denies suicidal, homicidal or violent ideations. He makes several future oriented comments during the interview including a planned vacation to Bali. He is currently employed now at the VA as a social worker intern, a job he very much enjoys. A June 2015 VA mental health note reported the Veteran is being discharged from the master's program due to his grades and missing classes. Recent termination of his relationship with his boyfriend. He had severe stress and anxiety while helping a friend with his thesis. He was homeless for three days and living on the streets. The Veteran acknowledged being "drunk or high" during these three days. The Veteran has returned home and is living in the pool house. The Veteran was fully oriented. Verbalizations were relevant and goal directed. Speech was within normal limits for both pace and volume. His affect was variable and mood congruent with material content. He teared at times when discussing certain life events. Suicidal/homicidal ideation/intent/plan were denied. After consideration of risk/protective factors, the Veteran was felt to be at low risk for suicide at the time of the session. There was no evidence of an underlying thought disorder exhibited during the session. A June 2015 VA treatment note stated the Veteran is in the process of completing a master's degree in social work and sociology. He was a social worker intern at the VA and now is working with Children and Youth Services. He reported that he is taking biology for the second time. He stated he has to study with someone else and has a very close friend in the program. He was appropriately dressed and mannered, with adequate hygiene and grooming. He was alert and oriented. He described his mood as "up and down." His affect was congruent to mood. His speech was spontaneous, and goal directed. He made good eye contact and no abnormal psychomotor behaviors were observed. Thought content seemed appropriate, with goal-oriented thought processes and no evidence of psychotic symptoms. Attention and concentration appeared to be adequate for the purpose of the clinical interview. The Veteran underwent a VA PTSD examination in August 2015. The Veteran is currently enrolled in a master's degree program. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The examiner summarized the Veteran's level of social and occupational impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a May 2016 VA outpatient note the Veteran reported feeling well. He is in an internship at Water Street. He does yoga four times a week. Does weight and cardiovascular workouts. In his November 2016 Notice of Disagreement, the Veteran stated he can't work or hold a relationship due to his PTSD. In his December 2016 substantive appeal, the Veteran stated he had tried to commit suicide on multiple occasions. He said he cannot be around other people especially men. He stated he is failing school due to panic attacks, depression and anxiety. He stated he can't get out of bed, and forgets to do homework, errands, and to shower. At his September 2021 Board hearing the Veteran reported finishing four years of college, but his PTSD caused his grades and relationships to suffer. The Veteran stated he suffered from substance abuse in college from 2013 through 2017. He reported few friends in college. He reported a bad relationship from 2016 to 2017. He stated his relationship with his parents was strained. He voluntarily entered outpatient rehabilitation several times during college. The Veteran is currently a technician at a hospital. Prior to this job he had held several jobs for periods of months to a year and a half. The Board has considered whether a total schedular evaluation is warranted during the period prior to March 31, 2017. However, the Veteran has not endorsed or exhibited any of the symptoms listed in the criteria for a 100 percent evaluation, and the symptoms he did experience are not of similar severity, frequency, and duration as those associated with a total evaluation. For example, the Veteran reported some instances of suicidal ideation during this period, but he was not in persistent danger of hurting himself. Rather, the Veteran generally denied suicidal ideation prior to March 31, 2017 at his VA treatment sessions. While the Veteran stated he can't get out of bed, and forgets to do homework, errands, and to shower, the Veteran was able to complete his college education, and his VA treatment notes show he was generally well groomed. The record shows the Veteran held several jobs and internships while he was attending college. While he stated he tended to isolate, he did note he had a very close friend in his program. There is no evidence in the record prior to March 31, 2017 that the Veteran had memory problems that approximated memory loss for the names of close relatives, his own occupation, or his own name, nor is there evidence of gross impairment to thought processes or communication or an inability to perform daily activities. In conclusion, the preponderance of the evidence is against a finding that the severity of the Veteran's symptoms is contemplated by a 100 percent evaluation. The Veteran manifests significant symptoms associated with PTSD, but he does not demonstrate any of the specific criteria contemplated by a total schedular evaluation or symptoms of similar severity, frequency, and duration at any time prior to March 31, 2017. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran has maintained some relationships, he has worked in jobs and internships while in school, and he was able to successfully complete his college degree. The symptoms and manifestations documented above are contemplated by the currently assigned 70 percent evaluation. The Veteran has never manifested symptoms that are of similar severity, frequency, and duration as those considered by a 100 percent evaluation, to include total occupational and social impairment. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for an increased evaluation prior to March 31, 2017. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. REASONS FOR REMAND The record indicates that the Veteran has shown difficulty in obtaining and maintaining substantially gainful employment. The Board notes that the Veteran meets the schedular requirements for a TDIU, but there is insufficient evidence to determine whether the Veteran's service-connected disability prevents him from obtaining and maintaining substantially gainful employment. While it is clear that the Veteran has been able to secure employment since he has separated from the military, the evidence does not show whether or not it is substantially gainful. The issue of entitlement to a TDIU should be adjudicated in the first instance by the AOJ, to include appropriate notification. The Veteran should also be given an opportunity to submit a formal application for a TDIU (VA Form 21-8940). The matter is REMANDED for the following action: 1. Send the Veteran a letter providing notice as to the information and evidence that is required to substantiate his claim for a TDIU and ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.