Citation Nr: 21024332 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-54 653 DATE: April 22, 2021 ORDER From September 7, 2007 to August 31, 2011, a higher initial disability rating of 50 percent for the service-connected posttraumatic stress disorder to include major depressive disorder (PTSD) is granted. From September 7, 2007 to August 22, 2013, an initial disability rating of higher than 50 percent for the service-connected PTSD is denied. REMANDED From September 7, 2007 to August 22, 2013, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From September 7, 2007 to August 22, 2013, the severity, frequency, and duration of the symptoms of the service-connected PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity. 2. From September 7, 2007 to August 22, 2013, the severity, frequency, and duration of the symptoms of the service-connected PTSD did not produce occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, from September 7, 2007 to August 31, 2011, the criteria for a higher initial disability rating of 50 percent for the service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. From September 7, 2007 to August 22, 2013, the criteria for an initial disability rating of higher than 50 percent for the service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from March 1977 to August 1978. The instant case is on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. A December 2011 rating decision granted service connection for PTSD and assigned disability ratings of 30 percent from September 7, 2007 and 50 percent from September 1, 2011, the date of a VA examination. An April 2014 rating decision granted TDIU from August 22, 2013, and a 70 percent rating for PTSD from August 22, 2013. At a February 2021 Board of Veterans’ Appeals (Board) hearing, the Veteran’s attorney stated that they were not disagreeing with the 70 percent stage of the rating from August 22, 2013, but were contesting the 50 percent rating that began on September 7, 2007. They also felt that TDIU should be granted for the entire period. The hearing transcript has been associated with the claims file. Preliminarily, the Board notes that the claim has at times been described as an earlier effective date claim. The claim is not one for an earlier effective date, but rather a challenge to how the staged ratings have been created. The Board finds that, notwithstanding the occasional use of the language “earlier effective date” by both the RO and the representative, the rating question is whether the ratings assigned for the early stage of the staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999) (holding that staged ratings can be appropriate and assigned to the initial disability rating following the award of service connection). The Board is recharacterizing the appeal as for higher initial disability ratings, which matches the conversation that was had with the representative during the hearing, the nature of the disagreement with the rating, and is more favorable to the Veteran as it allows the Board de novo review of the PTSD rating issue without any potential limitations of effective date requirements. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. PTSD Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings can be assigned at the time an initial disability rating is assigned). The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary’s use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are “like or similar to” those explicitly listed in the schedular rating criteria. See Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Under Diagnostic Code 9411, a 30 percent rating will be assigned for 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, and mild memory loss (such as forgetting names directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating will be assigned 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 (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating will be assigned 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, 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 schedular rating contemplates 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. Id. 1. A 50 Percent Rating for PTSD September 7, 2007 to August 31, 2011 is Granted. The Veteran contends that a 70 percent rating is warranted for the entire initial appeal period. After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise for a higher 50 percent initial rating for the first staged rating period from September 7, 2007 to August 31, 2011, but finds the weight of the evidence is against a rating of higher than 50 percent for any of the staged initial rating period on appeal. Rating PTSD from September 7, 2007 to August 31, 2011 The Veteran sustained significant occupational and social impairment, even while mainly having symptoms of depression. The Veteran stopped working in May 2006, suggestive of significant occupational impairment, which was supported by a Social Security Administration (SSA) grant of benefits, due to affective disorders as the primary disability and anxiety disorders as the secondary disability. The evidence also shows social impairment in the form of serial marriages. During the February 2021 Board hearing, the Veteran stated that she dealt with sleeplessness (like or similar to chronic sleep impairment), extreme anxiety, isolation (like or similar to disturbances of motivation and mood), worthlessness (like or similar to depressed mood), and overall depression with all the symptoms that go with it. See February 2021 Hearing Transcript. The Veteran testified that she has trouble getting out of the house and going places (like or similar to disturbances of motivation and mood) and has concentration difficulties (like or similar to depressed mood). At an October 2006 Initial Examination with private provider Dr. F., the Veteran complained of depression and not feeling like doing anything anymore, pointing to a loss of energy and motivation (like or similar to depressed mood), fatigue (like or similar to depressed mood), sadness (like or similar to depressed mood), sleep difficulty (like or similar to chronic sleep impairment), and difficulty concentrating (like or similar to depressed mood). The history was treatment on an outpatient basis for psychiatric reasons since 1992. The Veteran presented as glum, distracted, fully communicative, unhappy, tense, tearful, with slow speech (like or similar to circumstantial, circumlocutory, or stereotyped speech), and labile affect (like or similar to flattened affect). There was no evidence of psychosis and thought associations were intact, thinking was logical, and thought content was appropriate. In an SSA Adult Function Report that the Veteran filled out slightly before filing the claim for PTSD (May 2007), the Veteran stated that she struggled with concentration (like or similar to depressed mood) and because of concentration difficulties and depression she had at times become irritated and moody (like or similar to disturbances of motivation and mood), had sleep difficulties (like or similar to chronic sleep impairment), difficulties with motivation (like or similar to disturbances of motivation and mood), and social isolation (like or similar to disturbances of motivation and mood). The Veteran reported that she felt very pressured by her last supervisor, which led to a deep depression, and that she occasionally had anxiety attacks. An August 2007 Mental Residual Functional Capacity Assessment assessed that the Veteran was moderately limited in ability to carry out detailed instructions (like or similar to difficulty in understanding complex commands), moderately limited in ability to maintain attention and concentration for extended periods (like or similar to depressed mood), moderately limited in ability to complete a normal work-day and work-week without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, and moderately limited in ability to interact appropriately with the general public and ability to respond appropriately to changes in the work setting. In an October 2007 Mental Residual Functional Capacity Assessment, the same general limitations were checked. The examiner elaborated on the results and stated that the Veteran can understand and remember simple and detailed instructions but would at times have difficulty sustaining concentration, pace, and persistence and keeping up with a work schedule due to depression, anxiety, and personality factors. The Veteran can usually maintain attention and concentration for at least two-hour segments, considering normal breaks and lunch, and can maintain regular attendance, be punctual, and sustain a normal routine without special supervision. The Veteran can usually relate adequately to coworkers and supervisors in work settings not having heavy social demands. Private treatment records with Dr. G from November 2009 to February 2011 reflect a variation in occupational and social functioning over time. The most frequently given complaints/symptoms include anergia (like or similar to depressed mood), anhedonia (like or similar to disturbances of motivation and mood), sleep disturbance/insomnia (like or similar to chronic sleep impairment), and occasionally a restricted affect (like or similar to flat affect). The Veteran sometimes presented as dysphoric and other times had a more positive affect. The Veteran started to deny dysphoria even when negative events were happening and was in general showing positive improvement (see September 2010 Private Treatment Record), but lost that perspective when her ex-husband allegedly deliberately killed her cat (see January 2011 Private Treatment Record). Before and during the same time treatment with Dr. G, the Veteran would periodically check in with VA. In a February 2009 Mental Health Outpatient Note, the Veteran reported that she had worked at VA for 17 years and retired May 2006 because of severe depression, and had been feeling depressed since 1991. The Veteran reflected on the sexual harassment and verbal abuse she experienced while in the military and the fact that it was not taken seriously, and presented as very anxious, agitated (like or similar to disturbances of motivation and mood), and depressed. The examiner diagnosed PTSD and depressive disorder. Based on these records, it appears that the severity, frequency, and duration of mental health symptomatology from September 7, 2007 to September 1, 2011 the For the rating period from August 22, 2013, the severity, frequency, and duration of symptoms of the service-connected PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 50 percent rating is warranted for this period. 2. A Rating Higher than 50 Percent for PTSD from September 7, 2007 to August 22, 2013 is Denied. The Board also finds that, for the entire rating period on appeal from September 7, 2007 to August 22, 2013, the criteria for an initial disability rating of higher than 50 percent for the service-connected PTSD have not been met. In reaching this determination, the Board has considered here all the evidence listed above, in addition to evidence more specifically outlined in this section of the Board decision. This evidence includes that, on September 1, 2011, the Veteran participated in a VA examination, which led to the creation of the 50 percent higher rating initial stage. The Veteran reported the verbal and sexual harassment that she experienced and a long history of depression, multiple marriages that involved difficulties with sexual intimacy (like or similar to disturbances of motivation and mood), and traumatic nightmares (like or similar to chronic sleep impairment). The symptoms met the criteria for PTSD, including recurring and distressing recollections of the event (like or similar to disturbances of motivation and mood), recurrent distressing dreams of the event (like or similar to chronic sleep impairment), acting or feeling as if the traumatic event were recurring, physiological reactivity on exposure to external or internal cues that resemble an aspect of the event, avoidance (like or similar to disturbances of motivation and mood), diminished interest or participation in significant activities (like or similar to depressed mood), difficulty falling or staying asleep (like or similar to chronic sleep impairment), hypervigilance (like or similar to suspiciousness), and exaggerated startle response (like or similar to disturbances of motivation and mood). The symptoms that were reported included depressed mood, anxiety, panic attacks that occur weekly or less often, and flattened affect. A February 2013 Mental Health Consultation notes that the Veteran became suicidal while in the military at 17 years old and that since that experience she has had thoughts without ever attempting. The medical professional noted that there was no evidence of suicidal thought or behavior and was not believed to be a danger to herself or others. The Board recognizes that the 70 percent disability level is the only one that explicitly states suicidal ideation. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In this case, however, the medical professionals (in this note and in others) have assessed the suicidality and found the Veteran to not be a risk to herself or others. The severity appears to be mild, as although passing thoughts are likely unpleasant, and are rarely mentioned during numerous treatment sessions or examinations at which symptoms are reported. This is the only treatment note that explicitly references a history of suicidal ideation. Because of that, it seems less likely that their frequency, severity, and duration are often and long-lasting. The VA treatment records during this time period are consistent in showing symptoms of depression and disturbances of motivation and mood, with chronic sleep impairment. The Veteran reflected on the difficulty with leaving work due to medical reasons and struggled with relationships. In a June 2013 Mental Health Outpatient Note, the provider went into greater depth concerning the symptomatology. Symptoms included low self-confidence, feelings of inadequacy (like or similar to depressed mood), shame, caution, excessive worry (like or similar to anxiety), social isolation (like or similar to disturbances of motivation and mood), distrust, fear of emotional and physical intimacy (like or similar to disturbances of motivation and mood), sadness (like or similar to depressed mood), exhaustion (like or similar to depressed mood), avoidance of any trauma triggers (like or similar to disturbances of motivation and mood), negative and self-critical self-perception, and self-doubt. The Veteran reported periods of anhedonia (like or similar to disturbances of motivation and mood), low motivation (like or similar to disturbances of motivation and mood), and social withdrawal (like or similar to disturbances of motivation and mood). As reflected in the information above, the severity, frequency, and duration of mental health symptomatology most nearly approximated 50 percent symptomatology and occupational and social impairment with reduced reliability and productivity. The record did not reflect symptomatology consistent with a 70 percent level of impairment or occupational and social impairment with deficiencies in most areas. The main symptoms are disturbances of motivation and mood, depressed mood, and chronic sleep impairment, which support a 50 percent rating but no higher. REASONS FOR REMAND 3. A TDIU from September 7, 2007 to August 22, 2013 is Remanded. The Veteran is in receipt of a TDIU from August 22, 2013 onward. The Veteran seeks to have the TDIU extended to cover the entire initial rating period on appeal, which runs from September 7, 2007. The Board cannot grant the TDIU in the first instance because the combined disability rating criteria of 38 C.F.R. § 4.16(a) have not been met. When the combined rating criteria are not met, the Board must consider whether a referral to the Director, Compensation and Pension Service, is warranted for 38 C.F.R. § 4.16(b) adjudication. The Board finds that this is a case where a referral for 38 C.F.R. § 4.16(b) consideration is warranted. The Board notes that the Veteran has been unemployed since May 2006 and has received SSA benefits due to mental health disability. While SSA records are not determinative of TDIU for VA compensation, the SSA findings are still suggestive of impaired employability. It appears that the only reason that the TDIU was initially made effective from August 22, 2013 onward is because that is when the combined ratings criteria of 38 C.F.R. § 4.16(a) were met, rather than based on the underlying merits of TDIU. The Veteran’s mental health challenges started significantly before the TDIU onset date, so it is worth exploring whether a TDIU is appropriate for an earlier period of rating claim. The Veteran attended college sporadically and completed approximately two years. She also obtained a degree in cosmetology and a certification as a Licensed Professional Nurse (LPN). The Veteran worked as an LPN at the VA hospital from March 1991 to October 1995, as a phlebotomist at the VA hospital from October 1995 to March 2000, and as a medical support assistant at the VA hospital from March 2000 to May 2006. The Veteran testified during the February 2021 hearing that she had a meltdown in May 2006. Given the Veteran’s mental health disability and the evidence suggesting an impact on work functioning, the Board finds that the evidence raises a question as to whether the Veteran was precluded from obtaining or maintaining substantially gainful employment solely due to the service-connected PTSD for the period from September 7, 2007 to August 22, 2013; therefore, referral to the Director, Compensation and Pension Service, for TDIU consideration under 38 C.F.R. § 4.16(b) is warranted The issue of TDIU is REMANDED for the following action: 1. Associate with the record all VA treatment records that are not already of record. 2. Refer to the VA Under Secretary for Benefits or the VA Director of Compensation and Pension Service the issue of TDIU for the period from September 7, 2007 to August 22, 2013 for under 38 C.F.R. § 4.16(b). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.