Citation Nr: 21021912 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-10 036 DATE: April 14, 2021 ORDER An increased initial rating of 70 percent for post-traumatic stress disorder (PTSD) is granted. VETERAN CONTENTIONS The Veteran believes she is entitled to a rating higher than the 30 percent rating currently assigned. She contends that she has alienated herself from all of her meaningful relationships, feels disconnected from others, is emotionally impulsive, and lashes out for no reason. According to the Veteran she was high until 2010 when she lost her business. After the loss of her business, the Veteran reports that she felt like she was “getting hit by a freight train.” The Veteran asserts that she was unable to keep up with the continuing education requirements of her profession and ultimately allowed her professional license to lapse. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entirety of the appeal period the Veteran’s PTSD was productive of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW For the entirety of the appeal period the criteria for an increased initial rating of 70 percent for PTSD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1989 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). There was a December 2020 Board hearing before the undersigned Veterans Law Judge (VLJ), and the transcript is of record. After review of the record, the Board finds that the Veteran is entitled to an increased 70 percent disability rating for PTSD as of the date of her claim. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. To warrant a higher disability rating under 38 C.F.R. § 4.130, the evidence must show or most closely approximate: 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 (50 percent). Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, 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); inability to establish and maintain effective relationships (70 percent). Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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 (100 percent). The list of symptoms under the rating criteria are examples of symptoms that would warrant the rating, but are not exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). However, that is not the case where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Separate ratings may be assigned for separate periods of time based on the facts found—a practice known as “staged rating”. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the Veteran expressed dissatisfaction with the initial rating for PTSD and continuously pursued the claim. See 38 C.F.R. § 3.160. Therefore, her initial claim has not become final. Since the date of the claim, the Veteran’s PTSD symptoms have been productive of occupational and social impairment, with deficiencies in most areas. Namely, the Veteran experienced chronic mood swings and panic attacks, intermittent suicidal ideation, and she had an inability to maintain effective relationships. See, e.g., 6/15/2015 Medical Treatment Record – Government Facility; 10/9/2014 VA 21-0781a. While the Veteran was able to establish personal relationships, she was unable to maintain them. She married her first spouse but divorced within a year and, while she has been married to her second spouse for approximately three years, she characterizes the relationship as more of a platonic care giving relationship whereby her spouse manages her home, finances, and investment properties. See 1/23/2018 Medical Treatment Record – Government Facility; 12/18/2020 Hearing Transcript. By 2020 the Veteran had alienated everyone of consequence to her. 12/18/2020 Hearing Transcript. In addition, the Veteran allowed her obligations to pile up and become unmanageable during periods of stress, and she engaged in obsessional rituals, such as rearraigning furniture at 4 am daily. See 10/9/2014 VA 21-0781a; 12/18/2020 Hearing Transcript. With regard to the Veteran’s expressed suicidal ideations, this symptom is like persistent danger of harm to self, contemplated by the 100 percent criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017).  However, the severity, frequency, and duration of the Veteran’s suicidal ideation during this period did not rise to the level contemplated by a 100 percent disability rating. See 2/21/2018 C& P Examination. Furthermore, the record does not reflect, nor did the Veteran report, persistent delusions or hallucinations, grossly inappropriate behavior, or extreme memory loss, or any other symptoms of similar severity, frequency, or duration as contemplated by an even higher 100 percent rating. As such, a higher 100 percent rating for the Veteran’s PTSD during this period is not warranted. Thus, as of the date of the claim, the Veteran is entitled to a disability rating of 70 percent for PTSD. REASONS FOR REMAND The issue of entitlement to a TDIU is remanded for further development. A TDIU claim can be expressly raised or inferred, by the Veteran’s contentions and the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). If there is evidence of unemployability at the time of an increased rating claim challenging the initial disability rating assigned for the disability upon which the unemployability is based, entitlement to TDIU, including the effective date for that award, is part and parcel of the determination of the initial rating for that disability. Id. at 454-55. A request for TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Id. at 453-54. Once the issue of entitlement to TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. Where the schedular rating is less than total, a TDIU may be assigned when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16 (a). Here, the Veteran’s combined ratings are sufficient to warrant a schedular evaluation for TDIU from March 12, 2014, the date the Board determined she is entitled to a 70 percent disability rating for PTSD, to November 22, 2016, when the Veteran became entitled to a combined rating of 100 percent. During the Board hearing, the Veteran indicated that she allowed her professional license to expire because her PTSD left her paralyzed by the continuing education requirements. One of her mental health providers opined that the Veteran was not able to maintain or sustain substantially gainful employment then or in the foreseeable future, and on 5/22/2015 she resigned from her job to focus on her health and wellbeing. See 6/15/2015 Medical Treatment Record – Government Facility; 4/14/2017 VA 21-4192. Therefore, remand is necessary to evaluate the Veteran’s employment history and current employment status. The matters are REMANDED for the following action: Provide the Veteran with VA Form 21-8940. Document all attempts to obtain employment information and associate with the claims file. Following a review of the form and any additional evidence provided, the RO should make an initial determination regarding entitlement to a TDIU. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sloley, 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.