Citation Nr: 21024083 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-29 638 DATE: April 22, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. An initial rating of 70 percent, but not higher, for service-connected adjustment disorder with anxiety and depressed mood (mood disorder) prior to May 22, 2012, is granted. A rating in excess of 70 percent for service-connected mood disorder since May 22, 2012, is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 1, 2018, is denied. REMANDED Entitlement to a rating higher than 20 percent for service-connected residuals of bowel resection, status post colostomy and laparotomy is remanded. Entitlement to special monthly compensation (SMC) at the (s) rate (housebound rate) under 38 U.S.C. § 1114 as of May 1, 2009, is remanded. FINDINGS OF FACT 1. The Veteran’s psychiatric symptoms have not been diagnosed as PTSD under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) criteria. 2. Resolving the benefit of the doubt in favor of the Veteran, prior to May 22, 2012, her service-connected mood disorder was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. 3. Since May 22, 2012, the Veteran’s service-connected mood disorder has not been manifested by 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. 4. The Veteran’s self-reported last day of employment was in March 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Prior to May 22, 2012, the criteria for an initial rating of 70 percent, and no more, for service-connected mood disorder have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9440. 3. Since May 22, 2012, the criteria for a rating in excess of 70 percent for service-connected mood disorder have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, DC 9440. 4. Prior to April 1, 2018, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to July 1992. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) in January 2017; a transcript is of record. In February 2019, the Board remanded these issues to the VA Regional Office (RO) for additional development. The claims file has been returned to the Board for adjudication. The Board has reviewed all of the evidence in the Veteran’s claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has considered the Veteran’s claims and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to these claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to service connection for PTSD. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Because the Veteran's claim was filed and pending at the agency of original jurisdiction prior to August 4, 2014, the former version of section 4.125(a) of the regulations applies, which provides that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). There is now a Fifth Edition of the DSM (DSM-5), and section 4.125(a) and other VA regulations applicable to psychiatric disorders have been amended to reflect that update. 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014). However, the amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014; they do not apply to appeals already certified to the Board or pending before the Board. Id. Accordingly, the DSM-IV applies in this case. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). The Veteran, in her initial September 2009 claim, asserted that she had crying spells and crazy thoughts related to in-service service surgical procedures and not being able to carry a child. In a July 2010 statement in support of a claim of entitlement to service connection for PTSD, the Veteran again reported her in-service surgical procedures and gynecological problems and described losing a child and not being able to have children. The Veteran, her spouse, and her parents have submitted statements during the course of the appeal describing her psychiatric symptoms. In an October 2010 rating decision, the RO granted service connection for a mood disorder, claimed as depression and psychological issues, and denied service connection for PTSD on the basis that such had not been diagnosed. It appears that the Veteran’s VA and private treatment records, including those related to in-patient psychiatric treatment, are silent for a diagnosis of PTSD; save for two instances, one during VA treatment in May 2010 wherein she had a positive PTSD screening, an one during VA treatment in April 2019 wherein she had a pan-positive PTSD screening. On VA psychiatric examination, for mental disorders beyond that of PTSD, in June 2010, she was diagnosed with mood disorder, not otherwise specified, and reported sadness and depressed mood with occasional feelings of hopelessness and isolation. During VA treatment in July 2011, she underwent psychiatric evaluation as part of a chronic pain services evaluation, with interviews and psychological testing. The examiner noted that the Veteran reported some symptoms of PTSD related to a history of miscarriage; however, the examiner asserted that she met the diagnostic criteria for a diagnosis of generalized anxiety disorder and major depressive disorder. In an April 2017 DBQ for mental disorders beyond that of PTSD, the Veteran was diagnosed with bipolar disorder. The examiner reported that there were no other mental disorders present. The examiner reported that the Veteran had passive suicidality, not active, and her symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, the inability to establish and maintain effective relationships, and suicidal ideation. The examiner reported that there were no other symptoms. In February 2019, the Board sought on remand a medical opinion as to whether the Veteran had PTSD. The Board also sought the Veteran’s relevant outstanding private psychiatric treatment records from Franklin Square Medical Center; the RO requested that the Veteran identify and authorize VA to obtain such records in June 2019. To date, the Veteran has not responded. In a July 2019 DBQ, specific for PTSD, the examiner reported that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-V criteria. The examiner reported that while the Veteran did not have PTSD, she had another mental disorder, adjustment disorder. The examiner conducted a complete history, including the Veteran’s social, marital, family, legal, behavioral, substance, occupational, educational, and mental health history. In pertinent part, the Veteran reported suffering five miscarriages and asserted that she was pregnant during service when she had surgery and that the child died. She reported resultant feelings of being upset, depressed, and anxious. She reported her mental health history, including treatment with medication and in-patient treatment. The examiner reported that the Veteran’s stressor, the loss of a child and related medical issues, met Criterion A, that it was adequate to support a diagnosis of PTSD. The examiner also reported that Criterion A for a diagnosis of PTSD was met, that she directly experienced the traumatic event, that Criterion B was met, that there was a presence of intrusion symptoms associated with the traumatic event, and that Criterion C was met, that there was persistent avoidance of stimuli associated with the traumatic event. However, the examiner reported that Criterion D was not met, that there were no negative alterations in cognitions and mood associated with the traumatic event. The examiner reported that Criterion E was met, that there were marked alterations in arousal and reactivity associated with the traumatic event, and noted that the duration of the above had been more than one month, that the disturbance caused clinically significant distress or impairment, and that such was not attributed to physiological effects of a substance. The Veteran’s symptoms included depressed mood and anxiety. In a July 2019 addendum, the examiner further discussed that the Veteran did not have signs or symptoms of PTSD. The examiner reported that the Veteran had a family history of mental illness and had symptoms related to medical issues when she miscarried a baby. The examiner noted that the Veteran’s course had been improved my medication. During VA treatment in April 2019, the treatment provider reported that the Veteran did not seem to have PTSD and noted that the best he could determine based on prior interviews with the Veteran, she reported that PTSD may be related to the loss of a child and surgery during service. The treatment provider reported that while it was possible that there is a trauma condition, it had not been a treatment concern and there were no intrusive symptoms endorsed previously. During VA treatment in June 2020, the treatment provider referred to an April 2019 pan-positive PTSD screen and noted that upon exploring responses from the Veteran, her related event is family stressors and there did not seem to be an actual Criterion A event for PTSD endorsed. In a September 2020 DBQ, for mental disorders beyond that of PTSD, the examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood, chronic. There were no other mental disorders diagnosed. The Veteran’s symptoms included depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, flat affect, and the inability to establish and maintain effective relationships. No other symptoms were reported. The Board has considered the Veteran’s lay statements, and those of her spouse and parents, as to her psychiatric symptoms as well as her general lay assertion that she has PTSD; however, the Board finds the question as to whether the Veteran has a diagnosis of PTSD to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). There is no evidence that the Veteran, or any lay person submitting statements in support of her claim, possess the requisite skill, training, or experience to diagnose PTSD pursuant to the DSM criteria. Thus, the lay statements in this regard are not competent and lack probative value in the present appeal. In addition, the lay statements are outweighed by that of the VA examiners, as they do not have a similar medical background or expertise. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). The Board is sympathetic to the Veteran’s unique in-service and post-service circumstances. No party asserts that she did not experience in-service surgical procedures and gynecological complications, including loss of pregnancy. No party asserts that she is not competent and credible to report her psychiatric symptoms and describe the impact of such on her daily life. However, the Board reiterates herein that the Veteran is in receipt of service connection for a psychiatric disorder, her mood disorder, claimed as depression and psychological issues, granted by the RO in October 2010, effective September 9, 2009, the beginning of the current appellant period. All of the Veteran’s psychiatric symptoms have been considered in rating her service-connected mood disorder. In essence, regardless of the diagnosis applied at any time, her psychiatric symptoms of record during the current appellant period are subject to compensation. As there is no probative evidence establishing a diagnosis of PTSD, the current disability requirement, the threshold requirement, for a service connection claim is not satisfied. Although the July 2019 VA examiner referenced the DSM-V rather than the DSM-IV, there is no indication that application of the DSM-IV would have altered the examiner's conclusion. Without a diagnosis of PTSD, the Veteran fails to meet the requirements of service connection. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). The Board thus finds that the preponderance of evidence is against the claim and there is no doubt to be resolved. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49, 54-56. Accordingly, the claim of entitlement to service connection for PTSD must be denied. 2. Entitlement to an initial rating in excess of 30 percent for service-connected mood disorder prior to May 22, 2012, and a rating in excess of 70 percent thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal concerns the initial evaluation assigned a service-connected disability, as is the case as to the issue of entitlement to an initial rating in excess of 30 percent for service-connected mood disorder prior to May 22, 2012, and a rating in excess of 70 percent thereafter, VA assesses the level of disability from the effective date of service connection, in this case, September 9, 2009. See Fenderson v. West, 12 Vet. App. 119, 125 (1999); 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson, 12 Vet. App. 119; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found, a practice known as “staged” ratings. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’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. When evaluating the level of disability 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. In an October 2010 rating decision, the RO granted service connection for a mood disorder, initially rated 30 percent disabling, effective September 9, 2009. The Board, in a February 2019 decision, granted a 70 percent rating, effective May 22, 2012. Throughout the appellate period, the Veteran’s service-connected mood disorder has been evaluated using the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. Such is currently rated under DC 9440, contemplating chronic adjustment disorder. 38 C.F.R. § 4.130, DC 9440. Under DC 9440, in pertinent part, a 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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, and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted 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); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9440. The symptoms associated with each evaluation 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 evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 ; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the ‘frequency, severity, and duration’ of a Veteran’s symptoms ‘play an important role’ in determining the disability level). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. The Veteran, in her initial September 2009 claim, asserted that she had crying spells and crazy thoughts. In a November 2009 letter, one of the Veteran’s VA treatment providers summarized her symptoms to include sadness, depression, sleep impairment, feeling tired and/or having low energy, a change in appetite, and having trouble concentrating. In a November 2009 statement, the Veteran reported that she felt depressed, had crying spells and could not sleep, and that she was tired, had thoughts of death, felt scared, closed-in, alone, and hopeless, had bad dreams, and could not concentrate. In a July 2010 statement, the Veteran reported that sometimes she had suicidal thoughts and was edgy and uncomfortable around family and friends with children. In a July 2010 statement, the Veteran’s spouse reported that he observed the Veteran’s periods of depression over the years, lasting from several hours to several days on occasion, as well as her periods of crying for hours and sleep problems; he reported that their intimate life had suffered. In a July 2011 statement, the Veteran’s parents reported that after service, the Veteran was quiet and distrustful; they reported that they could see her emotional pain in her eyes and on her face. On VA psychiatric examination in June 2010, she discussed her in-service and post-service medical issues and reported feeling depressed due to her inability to have children. The Veteran reported that she had never missed work or was unemployed due to an emotional condition, and that she was a punctual and efficient clerical worker, with her main employment problems stemming from her physical condition and related appointments. She reported having a boyfriend with who she is able to go out and she reported that she maintains a social life with friends. There was no impairment in orientation, memory, insight, judgment, cognition, impulse control, thought processes, communication, or anxiety. There were no hallucinations or delusions, or obsessions, compulsions, or phobias, or suicidal or homicidal ideation. She had a mildly depressed mood. The examiner noted that she had never manifested suicidal ideation or had been psychotic. She complained of sleep impairment, sadness, and depressed mood with occasional feelings of hopelessness and isolation; she was diagnosed with mood disorder, not otherwise specified. The examiner reported that her depression was daily, intermittent, and mild. In a July 2010 statement, the Veteran reported that sometimes she had suicidal thoughts and was edgy and uncomfortable around family and friends with children. In a July 2010 statement, the Veteran’s spouse reported that he observed the Veteran’s periods of depression over the years, lasting from several hours to several days on occasion, as well as her periods of crying for hours and sleep problems; he reported that their intimate life had suffered. In a July 2011 statement, the Veteran’s parents reported that after service, the Veteran was quiet and distrustful; they reported that they could see her emotional pain in her eyes and on her face. During VA treatment in July 2011, she underwent psychiatric evaluation as part of a chronic pain services evaluation, with interviews and psychological testing. The Veteran was considerably anxious, had a mood-congruent affect, which was mildly constricted. In a statement dated on May 22, 2012, the Veteran complained of extreme depression and “sometime suicide,” and reported that she used up sick and annual leave without pay. She reported nightmares, sleep impairment, flashbacks, feeling scared and angry, and having fantasies of being someone else. In an August 2014 statement, the Veteran reported that she experienced sleeplessness, thinking about dying, hallucinations of having a child, panic attacks with mumbling, sweating, dizziness, and a racing heart. She reported that she had missed work and increased her alcohol consumption, and that was treated on an in-patient basis for four days in June 2013. She attached to her statement an unsigned and undated PTSD checklist indicating, in summary, her startle response, hypervigilance, difficulty concentrating, irritability, sleep impairment, a sense of shortened future, feeling distant, numbness, lack of interest, isolation, difficulty remembering important facts of the traumatic event, avoidance, physical reactions, disturbing memories or dreams, irritability or angry outbursts, feeling as if the event was happening again, being very upset with reminders of the event, and physical reactions with reminders of the event. During VA treatment in August 2016, she reported a change in job duties that caused increased stress and a panic attacks; she reported that she could not return to delivering mail. She requested an excuse from work. In September 2016, the Veteran sought VA treatment reporting that she was admitted to private in-patient psychiatric treatment for two days with suicidal thoughts with plan. The Board sought the Veteran’s relevant outstanding private psychiatric treatment records from Franklin Square Medical Center; the RO requested that the Veteran identify and authorize VA to obtain such records in June 2019. To date, the Veteran has not responded. During the VA treatment, she was very anxious due to being transferred to full duty at work after having been on light duty for 16 years due to a job-related injury. She asserted that work had been quite stressful although she got her work accomplished and stayed for her whole shift; she reported that she was frequently distracted and anxious about task completion and often wanted to leave early. She reported panic attacks and the inability to function. She reported more recent difficulty with depressive symptoms for the last year, noting declining social interactions, daily crying spells and primary insomnia, as well as carrying on conversations with her decreased grandmothers. She denied suicidal or homicidal ideation and audio or visual hallucinations. Mental status examination revealed poor insight and judgment, severe anxiety, moderate depression, and fair impulse control. During her January 2017 Board hearing, the Veteran asserted that she left her job due to depression. She reported memory loss and audio and visual hallucinations, seeing things and hearing thing that she knew were not there. She complained of nightmares and flashbacks, and two instances of in-patient psychiatric treatment for suicidal thoughts. She asserted that she experienced days where she could not get out of bed and/or had a very low activity level, and that she that she took medication for disorientation and blacking out on occasion. She reported that she had periods during which she exploded with extreme irritability and rage. In an April 2017 DBQ, the examiner reported that there were no other mental disorders present. The examiner reported that the Veteran had passive suicidality, not active, and her symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, the inability to establish and maintain effective relationships, and suicidal ideation. The examiner reported that there were no other symptoms. The examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas. VA treatment records dated in August 2018 indicate that the Veteran reported a poor mood and sleep impairment and asserted that she had anxiety all of the time. She reported recent panic attacks with shakiness, shortness of breath, and other physical symptoms. The treatment provider noted her report of experiencing stable, infrequent, vague shadows possibly of her recently deceased sister or grandmother and asserted that such that may be normal for bereavement, and on exploring such, asserted that they may be hypnagogic or hypnopompic and thus may be normal. Mental status was unremarkable save for a depressed mood, mildly restricted affect, and fair judgment and insight. In a July 2019 DBQ, the examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform only during periods of significant stress. The examiner noted the prior in-patient hospitalizations for suicidal ideation, not attempts. The Veteran complained of depressed mood and anxiety; the examiner found no suicidal or homicidal ideations or delusions, or hallucinations Memory was good for recent and remote events, there was good insight. In a September 2020 DBQ, the examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood, chronic. There were no other mental disorders diagnosed. The Veteran’s symptoms included depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, decreased concentration, flat affect, disturbances of motivation and mood, and the inability to establish and maintain effective relationships. Mental status examination was negative for delusions or hallucinations. No other symptoms were reported. The examiner reported that the Veteran’s disability manifested in occupation and social impairment with reduced reliability and productivity. Based on the above, the Board, resolving the benefit of the doubt in favor of the Veteran, finds that during the appellate period from September 9, 2009, to May 21, 2012, her service-connected mood disorder warrants an initial 70 percent rating. The clinical and lay evidence discussed herein supports the conclusion that prior to May 22, 2012, the date upon which her service-connected mood disorder was assigned a 70 percent rating, her disability was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. Such is contemplated by a 70 percent rating under the regulatory criteria. 38 C.F.R. §§ 4.126, 4.130, DC 9440. Prior to May 22, 2012, the Veteran reported suicidal ideation and thoughts of death in her November 2009 and July 2010 statements, respectively, as is contemplated by the rating criteria for a 70 percent rating. Id. She also reported symptoms of the same severity as the near-continuous panic or depression contemplated by the rating criteria for a 70 percent rating, as she reported crying spells in her September 2009 claim, and in her November 2009 letter, one of her VA treatment providers reported the Veteran’s sadness and depression. The Veteran reported depression with crying spells and feeling scared and closed-in in her November 2009 statement. The Veteran’s spouse reported, in July 2010, the Veteran’s depression over the years, lasting from several hours to several days, as well as her periods of crying for hours and the impact of such on their intimate life. Id. She also demonstrated difficulty in adapting to stressful circumstances and the inability to establish and maintain effective relationships, as is contemplated by the rating criteria for a 70 percent rating, as the Veteran reported that was edgy and uncomfortable around family and friends in her July 2010 statement, and again, her spouse reported, in July 2010, that their intimate life was not maintained due to the Veteran’s depression. Id. While the VA psychiatric examination in June 2010 does not appear to demonstrate symptoms as severe as those described above, the Veteran is competent, as is her spouse, to report her psychiatric symptoms as to suicidal ideation, near-continuous depression that impacts her life, and difficulty in adapting to stressful circumstances and the inability to establish and maintain effective relationships. There is no basis upon which the Board may consider such lay statements not credible. See Layno, 6 Vet. App. 465, 470. There is no probative evidence however, at any time during the appeal dated from September 9, 2009, to the present, that the Veteran’s service-connected mood disorder warrants a rating in excess of 70 percent, the 100 percent rating under DC 9440. There is no probative evidence that her disability has been manifested by 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, or symptoms of the same severity, frequency, and duration, as is contemplated under the regulatory criteria for a 100 percent rating. 38 C.F.R. §§ 4.126, 4.130, DC 9440. As it pertains to the persistent delusions and hallucinations contemplated by the rating criteria warranting a 100 percent rating, the Veteran reported, in her August 2014 statement, that she had hallucinations of having a child, and during her January 2017 Board hearing, she reported audio and visual hallucinations, seeing things and hearing thing that she knew were not there. During VA treatment in September 2016, she reported carrying on conversations with her deceased grandmother; mental status examination was negative for delusions or hallucinations. In August 2018, during VA treatment, the treatment provider considered the Veteran’s report of stable, infrequent, vague shadows possibly of her recently deceased sister or grandmother and asserted that such that may be normal for bereavement; mental status examination was negative for delusions or hallucinations. On VA examinations in June 2010, July 2019, and September 2020, delusions or hallucinations were not reported. Thus, the Board finds that the symptoms reported by the Veteran do not rise to the severity, frequency, and duration of the persistent delusions or hallucinations contemplated by the rating criteria for a 100 percent rating. Id. There is no probative evidence that any examiner or treatment provider has found delusions or hallucinations on any instance of VA examination or during VA treatment such that her lay statements as to her experiences discussed above have been clinically attributed to delusions or hallucinations or that such have occurred on a persistent basis since September 9, 2009. As it pertains to the persistent danger of hurting self or others contemplated by the rating criteria warranting a 100 percent rating, the Veteran reported private in-patient hospitalization on two occasions, in 2013 and 2016, for suicidal ideation with plan since September 9, 2009. Thus, the Board finds that such symptoms, suicidal ideation with plan, occurring three years apart, during an appellate period spanning many years, do not rise to the severity, frequency, and duration of the persistent danger of hurting self or others contemplated by the rating criteria for a 100 percent rating. Id. The Veteran has reported, during her January 2017 Board hearing, that she had problems with memory loss, and she had mild memory loss found on VA examination in September 2020. However, there is no evidence or assertion, including in the Veteran’s lay statements, that her memory loss is of the severity contemplated by the rating criteria for a 100 percent rating, that such is memory loss for names of close relatives, own occupation, or own name. Id. The Veteran reported, during her January 2017 Board hearing, that she took medication for disorientation and blacking out on occasion and that she had problems with days where she could not get out of bed and had problems with the activities of daily living. However, while the Veteran has presented for numerous episodes of treatment and/or examination during the course of the appeal, for her service-connected mood disorder and many other disabilities; no treatment provider or examiner has reported the use of medication to treat psychiatric symptoms that included disorientation and blacking out on occasion, disorientation to time or place, or the intermittent inability to perform activities of daily living. Thus, the Board finds that such symptoms, taking medication for disorientation and blacking out on occasion, which has not been clinically noted or corelated to her service-connected mood disorder as opposed to another disability, and having problems with the activities of daily living, do not rise to the frequency or duration of the intermittent inability to perform activities of daily living or disorientation to time or place contemplated by the regulatory criteria for a 100 percent rating. Id. Further, the Veteran’s psychiatric symptoms have not resulted in total occupational and social impairment. As discussed below, the Veteran was employed through March 2018. With respect to social impairment, on VA examination in September 2020 she reported that she was still married and described the relationship in favorable terms. She also stated that prior to COVID, she attended church regularly and had a network of fellow members of the congregation. None of the VA examiners, to include the September 2020 VA examiner, found that the Veteran’s psychiatric disorder causes total occupational and social impairment. Rather, each examiner concluded that her psychiatric disorder causes a lesser level of occupational and social impairment. In summary, the preponderance of the evidence reflects that during the entire appellate period, the Veteran’s service-connected mood disorder approximates the criteria for an initial 70 percent rating; the claim of entitlement to an initial rating in excess of 30 percent for service-connected mood disorder prior to May 22, 2012, is granted, and the claim of entitlement to a rating in excess of 70 for service-connected mood disorder since May 22, 2012, is denied. 38 U.S.C. § 5107 (b). 3. Entitlement to a TDIU prior to April 1, 2018. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). In a May 2012 statement, during the current appellate period, beginning on September 9, 2009, the Veteran asserted that she had to use sick leave and annual leave without pay due to her psychiatric symptoms. During VA treatment in August 2016, she reported a change in job duties that caused increased stress and reported that she could not return to delivering mail; she requested an excuse from work. During VA treatment in September 2016, she reported that she had been feeling increasingly anxious due to her job attempting to put her back on full duty after she has been on light duty for the past 16 years for a job-related injury; she asserted that she had a recent panic attack in which she had a breakdown and could not function for a period of time. During another instance of VA treatment in September 2016, she reported recent private psychiatric hospitalization. She discussed that she was currently struggling with feelings of anxiety and anger about a potential return to her workplace; she reported that she preferred not to return to work but that her spouse preferred that she return for financial reasons. During her January 2017 Board hearing, the Veteran reported that she was not working and left her job due to her psychiatric symptoms. In her February 2017 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, she reported that she was unemployable due to her psychiatric symptoms and that she last worked full-time with the United States Postal Service on August 23, 2016. She reported that she did not leave her last job due to her disability and that she had not lost time due to illness. A March 2017 RO document indicates that the Veteran was not in receipt of disability benefits from the Social Security Administration (SSA). Of record is a June 2017 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from the United States Postal Service, however, the employer did not report an ending date of employment, and reported only that she was not working and was on leave without pay status. In July 2020, the RO informed the Veteran that a new VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, was needed in order to account for her work history discrepancies, specifically, that her prior claim indicated that her last day of employment was in 2016 and her employer’s response indicated that she was still employed and on leave without pay status. In July 2020, the RO forwarded another VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, directly to the United States Postal Service. On that day, the RO also requested that the Veteran ask that the United States Postal Service return a completed VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The RO made the same requests to the Veteran’s employer and the Veteran herself in August 2020. In August 2020, the RO informed the Veteran that there had been no response to their attempts to obtain additional employment information. A September 2020 Report of General Information indicates that the RO spoke on the telephone with the Veteran’s representative; the representative reported that he spoke with the Veteran and she relayed to him that her last date of employment was in March 2018, she did not remember the specific day. By a September 2020 rating decision of a Decision Review Officer (DRO), the RO granted a TDIU on the basis that the Veteran’s service-connected disabilities in combination precluded all gainful employment. The DRO discussed the discrepancy of record as to the Veteran’s last day of employment, specifically noting an April 2018 VA treatment record indicating that she reported that she had retired in April 2018 as well as the September 2020 statement of her representative relaying her report that she last worked in March 2018. The RO informed the Veteran that, resolving all doubt in her favor, a TDIU was warranted on April 1, 2018, the day after the date of her last day of employment. Where the evidence establishes that a Veteran is gainfully employed on a full-time basis, a TDIU cannot be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also Faust v. West, 13 Vet. App. 342, 356 (2000); 38 C.F.R. § 4.16 (b) (reflecting that, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled). The evidence of record does not reflect, despite the RO’s requests to obtain employment information that would resolve the Veteran’s work history discrepancies, and the Veteran has not asserted that her earned annual income ever failed to exceed the poverty threshold determined by the U.S. Department of Commerce, Bureau of the Census prior to April 1, 2018. See 38 C.F.R. § 4.16(a). Also, while it is clear by the evidence of record, limited to the Veteran’s lay statements, that her job duties changed over time, she used sick leave and leave without pay, and had periods of in-patient psychiatric treatment, she has not asserted and there is no evidence suggesting that her employment was “marginal” in nature, i.e., that she was ever employed in a protected environment, such as a family business or sheltered workshop, so as to support a determination of marginal employment on a facts-found basis prior to April 1, 2018. See id.; see also Moore, 1 Vet. App. 356 (work that is more than marginal permits the individual to earn a “living wage”). Accordingly, there is no indication that the Veteran’s employment through March 2018 was anything other than gainful. If a claimant wishes help in developing his claim, he or she cannot passively wait for assistance in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The preponderance of the evidence weighs against a finding that the Veteran’s service-connected disabilities prevented her from securing or following a substantially gainful occupation; instead, the evidence of record indicates the Veteran was gainfully employed prior to April 1, 2018. Consequently, the benefit-of-the-doubt rule does not apply, and a TDIU prior to April 1, 2018, is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to a rating higher than 20 percent for service-connected residuals of bowel resection, status post colostomy and laparotomy is remanded. The Veteran’s service-connected residuals of bowel resection, status post colostomy and laparotomy are rated under Diagnostic Criteria (DC) 7329, contemplating resection, large intestine, which provides ratings for slight, moderate, and severe symptoms. DC 7329 also provides that where residual adhesions constitute the predominant disability, such shall be rated under DC 7301, contemplating adhesion of the peritoneum. 38 C.F.R. § 4.114, DCs 7301, 7329. The Veteran was last examined, specifically for her service-connected residuals of bowel resection, status post colostomy and laparotomy, in order to adjudicate her increased rating claim on appeal, in September 2020. The RO issued an October 2020 Supplemental Statement of the Case (SSOC) adjudicating the Veteran’s current claim. In December 2020, the Veteran submitted a claim of entitlement to service connection for irritable bowel syndrome (IBS) and in another December 2020 claim, she asserted entitlement to service connection for gastrointestinal problems. In a series of DBQs conducted in February 2021, to adjudicate her new claims, the Veteran was examined with respect to her intestinal conditions, intestinal surgery, peritoneal adhesions, and stomach and duodenal conditions. While the RO, in an April 2021 rating decision, denied entitlement to service connection for IBS and gastrointestinal problems and continued the rating assigned to the Veteran’s service-connected residuals of bowel resection, status post colostomy and laparotomy, the RO did not issue a SSOC on the issue on appeal. On remand, the RO should readjudicate the Veteran’s claim of entitlement to a rating higher than 20 percent for service-connected residuals of bowel resection, status post colostomy and laparotomy, and issue a SSOC. 2. Entitlement to SMC at the (s) rate under 38 U.S.C. § 1114 as of May 1, 2009, is remanded The issue of entitlement to SMC at the (s) rate under 38 U.S.C. § 1114 as of May 1, 2009, may be affected by the development and further adjudication of the claim of entitlement to a rating higher than 20 percent for service-connected residuals of bowel resection, status post colostomy and laparotomy is remanded above claims or issues. Accordingly, the Board will defer a decision at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the resolution of the second issue). The matters are REMANDED for the following action: (Continued on the next page)   Readjudicate the Veteran’s claim of entitlement to a rating higher than 20 percent for service-connected residuals of bowel resection, status post colostomy and laparotomy, specifically considering the series of DBQs conducted in February 2021, and issue a supplemental statement of the case (SSOC). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.