Citation Nr: 21042606 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-30 530 DATE: July 13, 2021 ORDER An initial 50 percent rating for posttraumatic stress disorder (PTSD) prior to August 30, 2015 is granted. Entitlement to a rating higher than 70 percent for PTSD from February 28, 2020 is denied. Entitlement to TDIU is denied. FINDINGS OF FACT 1. Prior to August 30, 2015, the probative evidence reflected that the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity; but do not cause occupational and social impairment in most areas. 2. For the period beginning February 28, 2020, the probative evidence reflected that the Veteran's PTSD symptoms more nearly approximated the probative evidence of record reflects that the PTSD symptoms more nearly approximate occupational and a social impairment with deficiencies in most areas, but do not cause total occupational and social impairment. 3. The Veteran's service-connected PTSD does not preclude her from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating prior to August 30, 2015 for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating higher than 70 percent from February 28, 2020 for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9411. 3. The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to February 1990. These matters are on appeal from a November 2014 rating decision, which granted service connection for PTSD and assigned a 30 percent rating effective June 6, 2013. In an April 2016 rating decision, the RO assigned an increased 50 percent rating effective August 30, 2015. In February 2020, the Board remanded the claim for further development. In the remand, the Board took jurisdiction of the Veteran's claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Subsequently, in a July 2020 rating decision, the RO assigned an increased 70 percent rating effective February 28, 2020. In September 2020, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) and specifically elected the Hearing lane. As such, the issue of entitlement to a 70 percent rating prior to February 28, 2020 is not currently on appeal. Increased Rating 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. The Veteran has appealed from the initial rating assigned for PTSD. In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran's claim is to be considered. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The Board finds that staged ratings are appropriate in this appeal. PTSD is rated under DC 9411. Under this code, a 30 percent rating is warranted when 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). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted where PTSD is manifested by occupational and social impairment with reduced reliability and productivity, due to symptoms such as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where PTSD is manifested by 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where PTSD is 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. Id. Higher than 30 percent prior to August 30, 2015 Turning to the evidence of record, the Veteran's claim for PTSD due to military sexual trauma was granted and assigned a 30 percent rating following an October 2014 VA examination report that showed her PTSD was manifest by 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 difficulty in establishing and maintaining effective work and social relationships; anxiety; and suspiciousness. The Veteran filed a timely notice of disagreement and submitted an August 2015 private mental status examination report. During the examination, the Veteran reported interpersonal problems at her secretarial job, noting that she has issues dealing/working with men and she is jumpy when men walk into her office unannounced. The examiner noted the Veteran's detailed history of the traumatic event, her reports of distressing and unpleasant dreams, avoidance of people and places that remind her of what happened, negative emotional state and feelings of detachment and alienation. The examiner indicated that the Veteran's PTSD was manifest by occupational and social impairment with reduced reliability and productivity due to difficulty in adapting to a worklike setting, difficulty in adapting to stressful circumstances, difficulty in adapting to work, occupational and social impairment with reduced reliability and productivity, difficulty in understanding complex commands, anxiety, chronic sleep impairment, and suspiciousness. Based on the above, the Board finds that the evidence before August 20, 2015, support a finding that the Veteran's symptoms more closely approximate a 50 percent rating. The Board notes that the October 2014 VA examination while adequate, was not as thorough as the August 2015 private examination which gave a more complete picture of the Veteran's symptoms. Resolving reasonable doubt in the Veteran's favor, the PTSD symptoms that were present during the August 2015 mental examination were likely present at the time of the October 2014 examination as it occurred within the past year. The evidence does not show that a higher 70 percent rating is warranted as the symptoms did not manifest Therefore, a higher 50 percent initial rating for PTSD is warranted prior to August 20, 2015 and an initial 50 percent rating, but no higher, for PTSD is granted. Higher than 70 percent from February 28, 2020 In this regard, during a February 2020 VA examination, the Veteran reported symptoms of nightmares, intrusive memories, avoidance, sadness, depression, isolation, withdrawal, emotional detachment, fatigue, and lack of motivation. She noted that she was easily started and reported symptoms of chronic sleep impairment, anxiety, irritability, concentration difficulties and hypervigilance. She denied suicidal ideation or homicidal ideation. She also denied delusions or hallucinations. The examiner noted that the Veteran's appearance was disheveled, and her affect was tearful. Her thought process was circumstantial. Your thought process was circumstantial and tangential. Your mood was anxious and depressed. Her affect was tearful. Recent memory was good to fair and remote memory was adequate. The examiner also reported that motivation, productivity, depressed mood and irritability have a direct impact on cognition, and interfere with ability to rapidly analyze situations and find solutions to problems; periods of anxiety and inability to adapt to stressful situations and increased sleeping problems; attention and concentration difficulties and fatigue significantly impact work reliability and productivity. The examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. Regarding employment, the Veteran reported that since separation from service, she worked at a childcare center and performed clerical jobs. In 2017, she worked for Hernando County School District; however, in August of 2018, her work contract was not renewed. Reportedly, her supervisor pointed out that she tended to isolate in her office and didn't attended work gatherings. At the time of the examination, she was enrolled in an online program at St. Leo University, sponsored by the VA Vocational Rehabilitation program. The Veteran reported that she started her teaching internship. She further reported that she has difficulty performing her job due to tiredness and fatigue. The cumulative evidence of record does not show severity enough to cause total occupational and total social impairment. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). The Veteran's PTSD symptoms do not more closely approximate the types of symptoms contemplated by the 100 percent rating, and therefore, a 100 percent rating is not warranted. Thus, a 100 percent rating is not warranted at any point during the period of appeal. TDIU Total disability exists when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The Veteran's only service-connected disability, PTSD, is rated at 50 percent disabling, and beginning February 28, 2020, a 70 percent rating. As the Veteran's total disability rating of February 28, 2020, is 70 percent, the criteria for a schedular TDIU are met from said date. The Veteran submitted VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in February 2020 and attributed her lack of gainful employment to her PTSD with MST. She indicated that she had been under ongoing doctor's care since February 2019. Although the evidence shows the Veteran has been unemployed or part-time employed at times during the appeal period, the evidence of record does not appear to show that she is unemployable. The record shows she completed a degree from Saint Leo University and obtained gainful employment as a teacher with the Pasco School District. (Continued on the next page) Therefore, entitlement to TDIU is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.