Citation Nr: 21011809 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-35 342 DATE: March 2, 2021 ORDER Entitlement to an increased initial disability rating greater than 70 percent for PTSD is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PTSD is manifested by psychiatric symptomatology resulting in occupational and social impairment in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. The evidence is sufficient to show that during the entire appeal period, the Veteran was unable to secure and follow a substantially gainful occupation consistent with her education and work history due to her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from May 2000 to May 2008. This matter returns to the Board of Veterans’ Appeals (Board) after a July 2018 Board decision which remanded the Veteran’s claim for an initial rating in excess of 50 percent for PTSD, as well as her claim for TDIU. Those matters were returned to the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ), for additional evidentiary development. In an April 2019 rating decision, the AOJ assigned the Veteran an increased initial disability rating of 70 percent for PTSD, effective July 7, 2018. The notification letter for this decision was sent to the Veteran one day later, on April 17, 2019. The Veteran filed a new claim requesting an increased PTSD disability rating and entitlement to TDIU, on May 2, 2019. The AOJ issued a Supplemental Statement of the Case (SSOC) on June 28, 2019, which continued the 70 percent PTSD rating level beginning July 7, 2018, and denied the claim for TDIU. The Veteran then filed on April 11, 2020, a Decision Review Request: Board Appeal (Notice of Disagreement) VA Form 10182 (AMA 10182 NOD) appealing the rating for her PTSD, based on the April 16, 2019 rating decision. By filing this document, the Veteran sought to opt into the new Appeals Modernization Act (AMA) review system. Thereafter, another rating decision was issued in July 2020 which changed the effective date of the Veteran’s increased PTSD disability rating to February 24, 2010, the date on which the Veteran filed her initial claim. This made the 70 percent PTSD disability rating applicable to the entire claim/appeal period. Another SSOC was issued the same date which reiterated the new effective date for the 70 percent PTSD evaluation and denied the claim for TDIU. The notification letter for this rating decision was sent to the Veteran on August 6, 2020. In September 2020, the Board advised the Veteran that her AMA 10182 NOD request for review under the new AMA system could not be accepted as the April 2019 rating decision was a partial grant of an issue in the Legacy (non AMA) review system, and the request was not timely filed. As such, the Board is continuing with its review of this matter under the Legacy appeal review system. 1. Entitlement to an increased initial disability rating greater than 70 percent for PTSD. The Veteran seeks an increased rating for PTSD symptoms, which are currently rated at a 70 percent disability compensation level that applies to the entire claim/appeal period. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. 38 U.S.C. § 1155. The 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 ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 U.S.C. § 1155, 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in the condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran’s PTSD is currently evaluated as 70 percent disabling VA Diagnostic Code (DC) 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 70 percent evaluation is warranted where 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; 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where 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 self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating the level of disability, it is also necessary to evaluate such from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Evidence of Record and Analysis The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the issues in the claim and this appeal. The Board finds that throughout the appeal, the Veteran’s service-connected PTSD has been productive of occupational and social impairment in most areas. The Board acknowledges that during the pendency of the appeal the Veteran has been divorced from her prior husband of 15 years, but has since remarried to her then boyfriend of about 3 years, and now lives in Texas with her new husband and his daughter, for whom she has applied for and received dependent benefits. While the Veteran states since her divorce she has had no contact with her children from her marriage with her previous husband, there is a lack of evidence which attributes that to her PTSD symptoms. The Veteran has consistently stated that her work difficulties and reasons why she was terminated from her employment are primarily due to her lack of sleep and nightmares, which caused excessive absenteeism, and the evidence does not support that it was due to PTSD related symptoms which caused relationship difficulties with coworkers or supervisors. See VA Disability Review, prepared by Dr. S.B, April 13, 2015 (Veteran stated she was terminated due to absenteeism due to sleep problems); Psychological Evaluation, Dr. J. T., November 20, 2020; see also VA Headaches Disability Benefits Questionnaire (DBQ), September 12, 2014 (functional impact on ability to work due to her ocular migraines described as including: poor memory and decreased concentration when she has headaches, and increased irritability with headaches.); VA DBQ: PTSD – Initial, November 14, 2013 (Pars. 2.b. and 8. – Remarks: Veteran states she lost her job due to calling out of work due to problems sleeping at night); see also Veteran’s written statement filed April 12, 2010 (her inability to sleep caused her to call out from work, resulting in her termination). The evidence indicates that the social and occupational impairment stemming from her symptoms of PTSD include chronic sleep difficulties including as due to nightmares, hallucinations, difficulty concentrating, irritability with outbursts of anger, avoiding certain activities, restricted range of affect, exaggerated startle response, mild memory loss, and only recent revelations of prior suicidal ideation, attempts, and hospitalizations. See Psychological Evaluation, Dr. J. T., November 20, 2020 (Veteran indicates several attempts and hospitalizations); see contra, VA DBQ: Review PTSD, May 31, 2019 (Section 2C: Veteran denies attempted suicide or current ideations); VA DBQ: PTSD -Review, February 11, 2019 (denied any history of or current suicidal ideation with plan, intent or attempts or passive suicidal ideation); VA DBQ: PTSD – Initial, November 14, 2013 (no recorded indication of suicidal ideation or attempts). The Board notes that the Veteran was provided another VA psychological evaluation in December 2019. The VA examiner for this evaluation did record that the Veteran claimed prior suicide attempts, and hospitalizations, but she denied current suicidal ideation. This examiner also noted substance abuse issues. However, the examiner here found that the Veteran did not have a current diagnosis of PTSD or any other mental health disability. As the Veteran has already been granted disability benefits for PTSD based on prior diagnosis, the Board finds this examination report to be of little and limited probative value - it does record statements from the Veteran. The Board finds the examiner’s opinions contained in this report to be irrelevant. It is undisputed that the Veteran’s PTSD results in serious occupational impairment (as discussed further below); however, as a 100 percent rating for a psychiatric disorder requires both total occupational and social impairment, this case turns on the presence of total social impairment. Here, the lay and medical evidence of record, shows that despite the Veteran’s serious symptoms, they have not resulted in total social impairment. Indeed, the record shows that the Veteran, though divorced, has recently remarried and currently lives with her new husband and his daughter. Also, the primary reason for her work difficulties have consistently been stated to be due to her severe sleep difficulties which cause her to miss work, and that her terminations were due to absenteeism. Her VA treatment and examination records have indicated that while sometimes emotional, the Veteran was consistently polite, cooperative, and exhibited adequate mental capabilities of communication ant thought. In light of this, the Board cannot find that she experiences total social impairment. Based on the foregoing, the Board finds that the frequency, severity, and duration of the Veteran’s PTSD symptomatology are most closely related to a finding of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. This equates the criteria for a 70 percent disability rating. The Board finds that the criteria for a 100 percent rating under the General Rating Formula, which equate to total occupational and social impairment, have not been met. See 38 C.F.R. § 4.130. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, entitlement to an initial disability rating greater than 70 percent for the Veteran’s PTSD at any time during the appeal period is denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran asserts she is entitled to a TDIU due to her service-connected PTSD, which prevents her from being able to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disability or disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. The Veteran is currently service connected for PTSD at 70 percent, effective February 24, 2010; ocular migraines at 30 percent, effective May 24, 2008; left shoulder sprain at 20 percent, effective May 2, 2019, and prior to that at 10 percent effective May 24, 2008; and a scar associated with her left shoulder strain at a non-compensable level, effective May 2, 2019. She had/has combined disability ratings of 40 percent beginning May 24, 2008; increased to 80 percent beginning February 24, 2010. Here, the Veteran does meet the schedular service-connected disability rating requirements based on her 70 percent rating for PTSD, effective February 24, 2010, but not earlier. Evidence of Record and Analysis In the Veteran’s April 2010 application for TDIU, she lists her only post-service employment as with the Providence, Rhode Island VA Medical Center (VAMC), where she worked until March 2009. She further states that she was unable to make it into work due to lack of sleep due to her PTSD. The Veteran submitted a VA Disability Review - vocational opinion letter (Vocational Evaluation) from Dr. S. B., dated April 13, 2015. Dr. S. B., indicates that she reviewed the Veteran’s file and cites numerous pieces of evidence, including VA examinations, medical records, and the Veteran’s own statements. After setting forth a detailed history of relevant facts, Dr. S. B. opined that the Veteran has a combination of physical and emotional conditions which interact in terms of severity level, the major areas of limitation being mental and physical activity, which limit her ability to sustain work. Dr. S. B. cites findings that the Veteran’s migraine headaches have an impact on her occupational function and that her PTSD symptoms cause occupational and social impairment “with occasional decrease in work efficiency.” Ultimately, Dr. S. B. opines that the Veteran is totally and permanently precluded from performing work at a substantially gainful level due to the severity of her service-connected PTSD, migraines, and left shoulder sprain. The Veteran’s private psychologist, Dr. J. T., opined that the Veteran appears permanently disabled and unable to work for the foreseeable future and does not appear to be capable of securing and/or maintaining substantially gainful employment based on symptoms including difficulty concentrating, problems with memory, difficulty interacting with others to include her husband and children, chronic depression, and unprovoked irritability, which preclude her form being able to relate appropriately to co-workers and to tolerate supervision. While Dr. T. J. opined that the Veteran is permanently disabled, he did not provide additional detail on what would need to change after the “foreseeable future” to allow the Veteran to be capable of securing and/or maintaining substantially gainful employment. Dr. J. T. also did not discuss or opine on the Veteran’s other service-connected disabilities and/or how they contributed to his opinion that the Veteran is permanently unable to work. In her September 2012 VA examination related to her ocular migraines, the Veteran described the functional impact on her ability to work due to her ocular migraines to include poor memory and decreased concentration when she has headaches, and increased irritability with headaches. In her September 2008 left shoulder VA examination, the Veteran stated that she has a sedentary work assignment and sits at a desk all day with no lifting required. As such, she generally does not experience problems that interfere with her work due to her left shoulder, but that on flare-ups she decreases her activity until the pain subsides and that she has to wait until her shoulder pain passes to do anything. As to her daily activities she complained of pain with lifting up her children, especially her then 1-year old, and she often picked her up with her right arm as she felt uncomfortable holding her because the child may fall out of her arm. However, in her May 2020 VA examination of her left shoulder, the Veteran stated that she has intermittent discomfort with lifting more than 20 pounds, as she is able to lift her daughter who weighs 20 pounds, and she is able to perform usual household duties such as cleaning with no reported difficulties and she states her shoulder did not impact her prior employment. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran has been given the benefit After resolving any doubt in the Veteran’s favor, the Board finds that throughout the pendency of the appeal, the impact of the Veteran’s service-connected disabilities has rendered her currently incapable of obtaining or maintaining substantially gainful employment, even in light of her education and occupational history. See Geib, 733 F.3d 1350 The Board also finds that it is a combination of all of the Veteran’s service-connected disabilities, though primarily her PTSD and ocular migraine disabilities, which render her unable to obtain or maintain any form of gainful employment consistent with her education and occupational experience. See Vocational Evaluation, Dr. S.B., April 13, 2015. The Board holds that entitlement to a TDIU is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.