Citation Nr: 21010809 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-13 825 DATE: February 25, 2021 ORDER Entitlement to an evaluation greater than 70 percent disabling for posttraumatic stress disorder (PTSD) is denied. Entitlement to an evaluation greater than 30 percent disabling for diverticulitis and irritable colon syndrome (ICS) is denied. Entitlement to a rating of total disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The evidence of record does not support a finding that the Veteran’s acquired psychiatric conditions have resulted in total occupational or social impairment during the period on appeal. 2. Throughout the period on appeal, the Veteran’s diverticulitis has manifested as severe alternating diarrhea and constipation with more or less constant abdominal distress. 3. The Veteran is unable to secure or follow substantially gainful employment as a result of her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 30 percent for diverticulitis and irritable colon syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Codes 7327, 7319. 3. The criteria for entitlement to an evaluation of total disability based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1993 to June 1995. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. Increased Ratings 1. Entitlement to an evaluation greater than 70 percent disabling for posttraumatic stress disorder (PTSD) is denied. The Veteran seeks an increased rating for her service-connected PTSD disability, currently evaluated at 70 percent disabling from February 17, 2016. The Veteran’s claim for an increased rating stems from an October 2018 claim for increased compensation based on unemployability, which argued worsening of her PTSD and diverticulitis disabilities. See October 2018 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. The Veteran’s PTSD is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 0 percent rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational or social functioning, or to require continuous medication. A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. A 50 percent rating is warranted 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty 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, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. A maximum rating of 100 percent 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, disorientation to time or place, and memory loss for names of close relatives, own occupation or own name. See 38 C.F.R. § 4.130. It should be noted that the symptoms associated with each rating under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. The Veteran underwent a VA examination in October 2018 to evaluate the level of severity of her PTSD. The examining VA psychologist indicated review of the Veteran’s claim file, and conducted an in-person examination, confirming diagnoses of PTSD and major depressive disorder. The examiner documented the Veteran’s symptoms of depressed mood, anxiety, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The examiner summarized the Veteran’s condition as resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Board is mindful that such language is consistent with the criteria for a 70 percent evaluation under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The Veteran expressed that her psychiatric problems caused difficulties at work because it affected her focus, memory, and attention. She reported frequent irritation and annoyance with coworkers and her working condition. See October 2018 Compensation and Pension (C&P) Examination. The Veteran has argued that she should be evaluated higher than 70 percent disabling because her PTSD has a severe daily effect on her personal life and her work life. See February 2019 Notice of Disagreement. She argues her PTSD causes sleep problems, which can both include oversleeping up to 12 hours per day, and inability to sleep resulting in as little as 3-4 hours per day. See August 2020 Hearing Transcript. The evidence of record does not support a finding that the Veteran’s acquired psychiatric conditions have resulted in total occupational or social improvement during the period on appeal, nor does the evidence more closely approximate such an evaluation. None of the Veteran’s individual symptoms for PTSD, nor their combination in aggregate indicates that she has experienced such impairment as is contemplated by the 100 percent rating criteria. While the Veteran has reported difficulties with her memory, her memory loss does not extend to disorientation to time or place, and has not been shown to affect recall of names of her close relatives, her occupation or her own name. Similarly, the Veteran’s difficulties with sleep, concentration, and with interpersonal relationships do not rise to grossly inappropriate behavior or intermittent inability to perform activities of daily living. The October 2020 private medical report noted that the Veteran rarely socialized but was able to relate to her family. The examiner concluded that the Veteran’s symptoms caused deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. Although the Veteran may sincerely believe that her mental health condition results in total occupation and social impairment as required by the Rating Schedule for a 100 percent evaluation, the record does not show that she has the requisite medical training or experience to render such an opinion. See 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5017. The claim is denied. 2. Entitlement to an evaluation greater than 30 percent disabling for diverticulitis and irritable colon syndrome (ICS) is denied. The Veteran seeks an increased rating for diverticulitis and ICS, which is initially rated at the maximum 30 percent disabling. Diverticulitis is rated as for ICS, peritoneal adhesions, or ulcerative colitis, depending upon the predominant disability picture. See 38 C.F.R. § 4.114, Diagnostic Code (DC) 7327. Thus, the Veteran’s condition is evaluated under DC 7319 for ICS. Under DC 7319, 30 percent is the maximum evaluation, contemplating a severe condition evinced by diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114, DC 7319. The Veteran underwent an evaluation for her diverticulitis and IBS conditions in October 2018. The examiner documented severe symptoms including alternating diarrhea and constipation, abdominal distension resulting in daily bloating, nausea, and vomiting 2-3 times per week, sometimes without a known reason. The examiner indicated that the Veteran’s condition resulted in more or less constant abdominal distress, including exacerbating attacks 4-5 times per year. The Board is mindful that this language is consistent with the language in the Rating Schedule for a 30 percent evaluation. The Veteran has argued that her condition has worsened, and thus it warrants a higher evaluation. However, her condition is presently rated at the maximum evaluation under DC 7319, due to severe alternating diarrhea and constipation with more or less constant abdominal distress. The Board finds the 30 percent evaluation for diverticulitis is appropriate. The claim for an increased rating is denied. 3. Entitlement to a rating of total disability based on individual unemployability (TDIU) is granted. A total rating based on individual unemployability may be granted 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; see also 38 C.F.R. §§ 3.340 (a), 3.341 (a). 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 shall 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). In the present case, the Veteran meets the schedular requirements for a TDIU, as her PTSD is evaluated at 70 percent disabling, with a combined total evaluation of 90 percent from January 31, 2018. After review of the evidence of record, the Board concludes the Veteran is unable to secure or follow substantially gainful employment as a result of her service-connected disabilities. The Veteran states she last worked full-time in October 2018, although she had a part-time job for several months in 2019-20 from her friends who operated a gun range. See August 2020 Hearing Transcript; and see November 2020 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Generally, “marginal employment” shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16 (b); see also U.S. Census Bureau, Poverty Thresholds, http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited February 12, 2018). The Board finds the Veteran’s part-time work at the gun range qualifies as marginal, based on her reported income of only $400 per month. However, the Veteran’s full-time employment with the Defense Finance Accounting Service (DFAS) exceeded the poverty threshold and therefore does not qualify as marginal employment. Thus, the Veteran is shown to be unemployable from October 10, 2018, the date she medically retired from DFAS. The Board will therefore turn to whether she was rendered unemployable solely as a result of service-connected disabilities. A letter in the claim file from the United States Office of Personnel Management (OPM) dated May 16, 2019 indicates the Veteran was found to be disabled from her position as a financial systems specialist due to her PTSD and idiopathic hypersomnia. See November 2020 Notification Letter. The Board is mindful that while the Veteran is not service-connected for hypersomnia, those sleep problems have been documented as symptoms of her PTSD, and contemplated by VA examiners for her ratings for PTSD. At her most recent PTSD evaluation, in pertinent part, the examiner completed an Individual Unemployability Statement which indicated the Veteran’s PTSD resulted in difficulty attending to or distraction from a task at hand; difficulty maintaining concentration and focus on work over a period of time, and tends to skip from one task to another without completing the prior task; intrusive thoughts which interfered with her ability to stay focused; difficulty remembering instructions and details of work assignments; difficulty functioning around people and as a team member, and feeling uncomfortable around others; and depressed feelings causing difficulty sustaining energy and motivation to complete assignments at work. The examiner did not indicate that the Veteran’s sleep is so disrupted that she is usually fatigued at work. However, the examiner did discuss the Veteran’s difficulty concentrating. See October 2018 C&P Examination. At her October 2018 examination for diverticulitis and IBS, the examiner indicated that the Veteran was unable to perform even sedentary work due to her diverticulitis condition. See October 2018 C&P Examination. Such description is consistent with other medical records throughout the claim file, which show the Veteran needed to stay close to a restroom, and was frequently unable to work for multiple hours during the workday due to her digestive condition. See, e.g., July 2018 C&P Examination. The Veteran has also provided a letter from her private treating physicians for her psychiatric conditions, which stated in pertinent part that her PTSD precludes her from engaging in substantially gainful employment. See November 2020 Medical Treatment Record – Non-Government Facility. The Board concludes that the Veteran is rendered unemployable due to her service-connected disabilities. The Veteran is rated at 70 percent disabled due to her psychiatric condition, and her diverticulitis condition has rendered her unable to perform even sedentary work. The record shows the Veteran medically retired from her last gainful employment due to her PTSD in October 2018. However, the record also shows the Veteran’s service-connected diverticulitis and PTSD have rendered her unemployable since that time. Resolving all reasonable doubt in favor of the Veteran, the claim for a TDIU is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.