Citation Nr: 22014101 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-34 108 DATE: March 11, 2022 ORDER An initial 70 precent rating for post-traumatic stress disorder (PTSD) is granted. A rating in excess of 70 percent for PTSD is denied. Entitlement to total disability due to individual unemployability (TDIU) from February 20, 2015, to August 4, 2021, is granted. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran's PTSD has been characterized by suicidal ideation, sustained periods of anxiety and depression, social isolation, difficulty establishing and maintaining effective relationships, and chronic sleep issues; it has not been productive of total occupational and social impairment. 2. The evidence of record indicates that the Veteran's PTSD prevented her from securing and maintaining substantially gainful employment from February 20, 2015, to August 4, 2021. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2021). 2. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2021). 3. The criteria for entitlement to TDIU from February 20, 2015, to August 4, 2021, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to June 1972. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in May 2021 before a Veterans Law Judge at a video conference hearing. A transcript of this hearing is of record. This hearing was before a now-retired judge. In January 2022, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. She was informed that if no response was received within 30 days, it would be assumed that she did not want another hearing and that a decision on her claim would be made. No response was received from the Veteran or her authorized representative regarding this issue within the prescribed time period. As a result, the Board finds that she does not wish to have a new hearing and will proceed with adjudication. A June 2021 Board decision remanded the issues on appeal for further development. A November 2021 rating decision increased the Veteran's rating for PTSD from 50 to 70 percent effective August 4, 2021. Because the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, the November 2021 rating decision granted TDIU from August 4, 2021; to this extent only the appeal is granted. The issue of TDIU prior to August 4, 2021, is still pending in conjunction with the claim for increased rating. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Rating for PTSD The Veteran contends that she is entitled to a higher rating for PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Court has held that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When the evidence is in approximate balance in the Veteran's favor or nearly equal regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). The Veteran's PTSD is currently rated 50 percent disabling prior to August 4, 2021, and 70 percent disabling thereafter. The Veteran's PTSD has been rated under Diagnostic Code (DC) 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, a 50 percent rating 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. The criteria for a 70 percent rating are 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. The criteria for a 100 percent rating are 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 of 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 9411. Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board finds that the competent evidence shows that the Veteran's overall disability picture more nearly approximates the criteria for a 70 percent rating for the entire appeal period. 38 C.F.R. §§ 4.7, 4.130, DC 9411. Significantly, the January 2015 VA treatment note reported passive suicidal ideations. The August 2015 VA examination and a January 2017 VA treatment note also reported passive suicidal ideations with a history of attempts. The United States Court of Appeals for Veterans Claims (CAVC) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. Bankhead, 29 Vet. App. at 19. The Board also notes that throughout the appeal period, the Veteran has had persistent problems with depression, anxiety, social isolation, chronic sleep issues, and difficulties forming and maintaining close relationships. The Veteran did not exhibit symptoms such as illogical speech, disorientation or near-continuous panic, but the Board notes that the symptoms list in the general rating formula is non-exhaustive and finds that the overall severity of the Veteran's symptoms throughout the appeal period, particularly her history of suicidal ideation, persistent depression and anxiety, warrants 70 percent rating. That being said, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The record is silent for any symptoms associated with or contemplated by a 100 percent rating. Notably, the competent evidence of record does not show that the Veteran experiences: gross impairment in thought processes or communication, 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 or memory loss for names of close relatives, own occupation or own name. During the May 2021 Board hearing, the Veteran reported that she would have difficulty performing activities of daily living periodically, lasting for 3 to 4 days at a time. However, VA treatment records routinely noted that the Veteran's personal hygiene was appropriate, which indicates that she was able to maintain her standard of self-care. There is also no indication of impairment of thought processes or communication. The Veteran's speech and thought process were consistently noted to be normal, logical, and linear. The evidence does not indicate that the Veteran suffered from memory loss of a severity equivalent to forgetting names of close relatives, own name, or occupation as contemplated by the 100 percent rating. See e.g., August 2015 and August 2021 reports of VA examination; see also April 2017 mental health consult note. The record also does not indicate a history of harm to the Veteran or others, homicidal ideations, or hallucinations during the period on appeal. While the record does contain evidence of passive suicidal ideations, all VA treatment records and reports of VA examination indicate that the Veteran denied active suicidal ideation and characterized her thoughts as fleeting. Her providers consistently found that the Veteran did not have a high risk of self-harm throughout her treatment. The Board therefore finds the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. Bankhead, 29 Vet. App. at 19. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in her favor. The Board finds that competent evidence persuasively indicates that the Veteran's overall picture more nearly approximates that of a 70 percent disability rating, and her symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 100 percent rating. A rating in excess of 70 percent is therefore not warranted. 38 C.F.R. §§ 4.7, 4.130, DC 9411. Entitlement to TDIU prior to August 4, 2021 The Veteran contends that she was unable to work due to her service-connected PTSD during the entire period on appeal, to include the period prior to August 4, 2021. For reasons outlined below, the Board finds that the Veteran meets the schedular threshold for the period from February 20, 2015, to August 4, 2021, and that her service-connected PTSD rendered her unable to secure and maintain substantially gainful employment. 38 C.F.R. § 4.16(a). TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. If there is one disability it shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). For the purposes of considering whether this threshold has been met, disabilities resulting from a common etiology are treated as one disability. Id. 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 disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular percentage standards. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). Medical evidence describing the effect of each disability on the Veteran's occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the determination of whether service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board's to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching a conclusion regarding employability. The initial question for the Board is whether the Veteran meets the schedular threshold for consideration for TDIU. The Board notes that the Veteran has already been granted schedular TDIU for the period from August 4, 2021, based on her singular 70 percent PTSD rating. Having found that an initial 70 percent rating for PTSD is warranted prior to August 4, 2021, as well, the Veteran now meets the percentage requirements for consideration of TDIU for the entire period. The Board will therefore consider whether the Veteran's service-connected disabilities rendered her unable to secure and maintain substantially gainful employment during the relevant period. This involves consideration of two components: an economic component involving an occupation outside of a protected environment earning more than marginal income, and a non-economic component involving the Veteran's ability to secure and follow such employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). VA may consider the Veteran's level of education, special training, and previous work experience in making this determination, but may not consider age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). The Board notes that the Veteran submitted a VA 21-8940 application for TDIU in October 2021. She reported that her PTSD prevented her from securing or following any substantially gainful employment. An October 2021 VA Form 21-4192 Request for Employment Information reported that the Veteran was last employed full-time with Time Warner, now Charter Communications, in August 2012 as a Technical Support Representative. The employer did not provide a cause for termination or indicate that any disability concession, entitlement, or benefit was provided. A comprehensive overview of the medical evidence and lay statements regarding the severity and functional impact of the Veteran's PTSD is included in the above section addressing her entitlement to an increased rating during the period on appeal. The Board incorporates it here by reference. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). Similarly, the Board notes that the Veteran is competent to report her activities of daily living, lay-observable symptoms, and subjective feelings and accords her statements significant probative weight. See Layno v. Brown, 6 Vet. App. 465, 470. Upon review of the above, the Board finds that the weight of the evidence supports the finding that the Veteran was precluded from all non-marginal employment due to her service-connected PTSD. The evidence indicates that her psychiatric disability resulted in significant occupational and social impairment. As noted in the previous section, the record during this period shows a clear pattern of severe depression, anxiety, social isolation, and suicidal ideation. The record also indicates that the Veteran had significant difficulty adapting to stressful circumstances. In the January 2017 and April 2017 VA treatment records, the Veteran remarked how increased stress worsened her symptoms, particularly her depression and suicidal ideations. This does not evidence an ability to handle occupational or social stresses sufficient to maintain employment. The Board notes that the November 2021 rating decision found that the Veteran's PTSD symptoms could reasonably be expected to preclude employment in occupations the Veteran is experienced to perform. While the Board is not bound by the RO's finding, it agrees with this assessment for the reasons noted above. The Board also found above that the Veteran's symptoms have been essentially consistent throughout the entire period. There is no evidence to distinguish the period prior to August 4, 2021, for TDIU purposes now that the grant of a single 70 percent rating based on uniformity of symptoms has been granted. There is therefore nothing persuasively weighing against the Veteran's claim that she was unable to work during the period prior to August 4, 2021, due to her PTSD. Applying all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was precluded from obtaining or maintaining substantially gainful employment during the period from February 20, 2015, to August 4, 2021. Accordingly, TDIU is warranted for this period. 38 C.F.R. § 4.16(a). K. L. WALLIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.