Citation Nr: 21041608 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-22 962 DATE: July 9, 2021 ORDER Entitlement to an effective date prior to August 27, 2011 for the grant of a 100 percent disability rating for posttraumatic stress disorder (PTSD) with depression is denied. Entitlement to a disability rating in excess of 50 percent for PTSD and depression, for the period prior to April 4, 2011, is denied. Entitlement to a disability rating of 70 percent for PTSD and depression, for the period from April 4, 2011 to August 27, 2011, is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to August 27, 2011 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence does not indicate that the Veteran's PTSD and depression resulted in total occupational and social impairment prior to August 27, 2011. 2. For the period prior to April 4, 2011, the preponderance of the evidence of the record indicates that the Veteran's PTSD and depression resulted in occupational and social impairment with reduced reliability and productivity. 3. For the period from April 4, 2011 to August 27, 2011, resolving all reasonable doubt in favor of the Veteran, the evidence of record indicates that it is at least as likely as not that the Veteran's PTSD and depression resulted in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to August 27, 2011 for the grant of a 100 percent disability rating for PTSD with depression have not been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to a disability rating in excess of 50 percent for PTSD with depression, for the period prior to April 4, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for entitlement to a disability rating of 70 percent for PTSD with depression, for the period from April 4, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 2009 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2016 and May 2021 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a June 2020 hearing. In December 2020 and March 2021 decisions, the Board remanded this claim for additional record development. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. 1. Entitlement to an effective date prior to August 27, 2011 for the grant of a 100 percent disability rating for PTSD with depression The Veteran asserts that her PTSD with depression resulted in total occupational and social impairment prior to August 27, 2011. Generally, the effective date of an increase in disability rating will be on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If it is factually ascertainable that the increase in disability occurred during the year prior to the claim, then the date of increase will be the effective date of the award. 38 C.F.R. § 3.400 (o)(2). If the increase occurred more than one year prior to the claim, then the effective date will be no earlier than the date of claim. The Board notes that this appeal dates to the Veteran's December 31, 2009 claim for service connection for PTSD and has been appealed since that time. Accordingly, the date of claim does not affect this issue, and the only remaining question for the Board is whether the evidence of record supports a rating in excess of 50 percent for the Veteran's PTSD for the period prior to August 27, 2011. This matter will be addressed in the following sections, which deal in more detail with the appropriate ratings to be assigned prior to this date. Again, as detailed below, the Board finds that a staged rating, but not a 100 percent rating, is warranted. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim for PTSD. Accordingly, the claim for an earlier effective date for the grant a 100 percent rating for PTSD and depression is denied. In reaching the above conclusions, 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 in this appeal. 38 U.S.C. § 5107(b). 2. Entitlement to a disability rating in excess of 50 percent for PTSD with depression, for the period prior to August 27, 2011, The Veteran asserts that her PTSD and depression were more severe than is reflected by her current 50 percent rating for the period prior to August 27, 2011. Her PTSD and depression disability is rated under DC 9411. Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a rating of 50 percent is 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; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A total scheduler rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to 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 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), 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." The Federal Circuit 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." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether a higher evaluation is warranted. In this case, the Veteran's claim for service connection for a psychiatric disability that was received on December 31, 2009. During the Veteran's January 2010 VA examination for mental disorders, the VA examiner noted that she was positive for anxiety, depression, and sleep problems. The Veteran was negative for suicidal and homicidal ideation, panic attacks, inappropriate behavior, hygiene problems, and obsessive/ritualistic problems. The Veteran indicated that she was unemployed and had quit her previous jobs because she "couldn't take everybody yelling at me." The Veteran reported difficulty with family and social functioning. The VA examiner explicitly stated that the Veteran's disability did not result in total occupational and social impairment. In a February 2010 buddy lay statement, the Veteran's friend stated that she had been a happy, well-adjusted person prior to service. After service, she was fearful, anxious, experienced sleeping problems and nightmares, and was rarely happy. March 2010 VA treatment records reflect treatment for severe depression, extreme emotionally volatility, panic attacks, mild agoraphobia, nightmares and sleep problems, hypervigilance, and constant anxiety. The Veteran was negative for suicidal ideation. In an April 2011 buddy lay statement, another friend of the Veteran stated that the Veteran had been depression, miserable, and anxious since leaving service. She stated that the Veteran was suicidal, emotionally volatile, and short-tempered. The Veteran had difficulty in crowds and was dependent on drugs. An April 2011 lay statement by the Veteran's father recounted similar symptoms, including depression, anger issues, and emotional volatility. In an April 2011 Notice of Disagreement (NOD) statement, the Veteran stated that she had been depressed, with low appetite, emotionally volatile, constantly fearful or anxious, and frequently angry. She experienced panic attacks with shortness and breath and nausea. She experienced difficulties with maintaining her familial and social relationships and found it hard to be in crowds or to be interested in any activities. The Veteran also experienced sleeping problems and nightmares. In December 2011 private treatment records, the Veteran denied current and prior suicidal or homicidal ideation. In the Veteran's May 2021 VA addendum medical opinion on the severity of her psychiatric disability symptoms, the VA examiner found her symptoms caused occupational and social impairment with reduced reliability and productivityconsistent with a 50 percent disability rating. The examiner reviewed and discussed the Veteran's treatment records, SSA records, and previous VA examinations. The examiner noted that the Veteran indicated during her January 2013 VA examination for psychiatric disabilities that her symptoms had worsened since her previous examination. The examiner stated that it was not possible, without resorting to speculation, to determine the severity of the Veteran's symptoms between Oct 2009 and Aug 2011 outside of the information included in her records. For the period prior to April 4, 2011, the Board finds the preponderance of the evidence is against granting a disability rating in excess of 50 percent for the Veteran's psychiatric disability. During this period, the Veteran is positive for symptoms such as moderate to severe depression, anxiety, anger issues, chronic sleep impairment and nightmares, flashbacks, hypervigilance, and panic attacks; however, she did maintain some form of employment until May 2011 and some social and familial relationships. See April 2020 Request for Employment Information and May 2021 VA addendum medical opinion. The Veteran was negative for symptoms consistent with a higher disability rating such as suicidal or homicidal ideation, moderate to severe memory issues, hygiene problems, inappropriate behavior, the inability to establish and maintain relationships. Based on these facts, the Board finds the preponderance of the evidence is against granting a disability rating for the period prior to April 4, 2011. Accordingly, the claim for an increased rating for PTSD and depression is denied for the period prior to April 4, 2011. From April 4, 2011 to August 27, 2011, the Board finds that, resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that the Veteran's PTSD and depression resulted in occupational and social impairment with deficiencies in most areas. One of the Veteran's buddy lay statements indicates that the Veteran was suicidal, and all of the buddy lay statements, as well as the Veteran's own lay statements, indicated that she was emotionally volatile, angry, experienced sleep problems, and was generally unhappy. The Veteran stated that she experienced panic attacks, disinterest in most activities, and difficulty or inability to establish and maintain social relationships. While the evidence for this period does not indicate that the Veteran met all the criteria for a 70 percent disability, the evidence does indicate her symptoms were increasing in severity, that she may have been suicidal, and that her symptoms were consistent with total impairment by August 27, 2011. Based on these facts, and resolving all reasonable doubt in favor of the Veteran, the Board finds it is at least as likely as not that the Veteran's PTSD and depression resulted in occupational and social impairment in most areas from April 4, 2011 onward. The evidence of record is negative for any evidence of total occupational and social impairment prior to August 27, 2011. Accordingly, from April 4, 2011, the date of receipt of the buddy lay statement indicating potential suicidal ideation, the criteria are met for a 70 percent disability rating, but no higher. To this extent only, the Veteran's claim for an increased rating is granted. REASONS FOR REMAND 1. TDIU The Board finds that the evidence of record raises the issue of entitlement to TDIU. See January 2013 TDIU application. The Veteran is service connected for seasonal allergies, rated as noncompensable (zero percent disabling), effective October 31, 2009, and for PTSD. The Veteran's PTSD is rated as 50 percent disabling from October 31, 2009 to April 4, 2011, 70 percent disabling from April 4, 2011 to August 27, 2011, and 100 percent disabling thereafter. See May 2021 codesheet. Accordingly, from October 31, 2009 to April 4, 2011, the Veteran did not meet the criteria for schedular consideration for TDIU. The Board is prevented from adjudicating extraschedular consideration for TDIU in the first instance. However, it can consider whether referral to the Director of Compensation and Pension Services for such consideration is warranted. In the Veteran's March 2013 TDIU application, she indicated that she worked fulltime from January 2009 to January 2010. The Veteran indicated that she worked parttime (20 or more hours per week) from April 2010 to May 2010 or 2011. An April 2020 response to a Request for Employment Information indicates that the Veteran worked approximately 30 hours a week in customer service from May 2010 to May 2011. A second response indicates the Veteran worked fulltime from July 2011 to August 2011, but she ended her employment due to her PTSD. Social Security Administration records, received December 2020, indicate that the Veteran asserted she had been unable to work since May 2011. She was found to have been incapable of working since May 1, 2011. The Board finds that there is evidence indicating that the Veteran may have been unable to secure or follow a substantially gainful occupation during the period prior to August 27, 2011, which includes a period of time during which she does not meet the criteria for schedular consideration for TDIU. Accordingly, the TDIU issue is remanded for referral to the Director, Compensation and Pension Service for extraschedular consideration. The matters are REMANDED for the following actions: The claim for TDIU prior to August 27, 2011 should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. The response from this office must be included in the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.