Citation Nr: 22045307 Decision Date: 08/10/22 Archive Date: 08/10/22 DOCKET NO. 13-35 572 DATE: August 10, 2022 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating by reason of individual unemployability due to service-connected disabilities (TDIU) prior to April 7, 2017, is denied. A TDIU from April 7, 2017, is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms have not more closely approximated total occupational and social impairment. 2. Service connection is in effect for PTSD, rated 70 percent disabling; and residuals of a left shoulder strain, rated 10 percent disabling prior to July 14, 2016, and 20 percent disabling thereafter. 3. The Veteran is shown to be within one class of a bachelor's degree and work experience as a paralegal, director of a nonprofit organization, and dog trainer. 4. Prior to April 7, 2017, the Veteran's service-connected disabilities, standing alone, were not shown to be of such severity to render her to be unable to secure or follow a substantially gainful employment. 5. From April 7, 2017, the Veteran's service-connected disabilities, standing alone, are shown to be of such severity as render her to be unable to secure or follow a substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The requirements for a TDIU rating were not met prior to April 7, 2017. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.340, 4.16. 3. The requirements for a TDIU rating are met as of April 7, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1994 to March 1995. The Veteran testified before a Veterans Law Judge who is no longer a member of the Board in November 2015. A transcript of the hearing is of record. The Veteran was notified of an opportunity for an additional hearing in February 2020. In June 2020, the Veteran responded that she did not desire another hearing. In a July 2020 decision, the Board granted a 70 percent rating for the Veteran's PTSD from October 25, 2011, but denied a rating in excess of 70 percent. That decision also denied entitlement to TDIU. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court) and the July 2020 decision was vacated pursuant to a June 2021 Order, following an Amended Joint Motion for Partial Remand (JMR). The parties agreed that the Board failed to address in its July 2020 decision material evidence regarding the severity of the Veteran's PTSD and did not adequately discuss the Veteran's eligibility for TDIU in light of evidence in the record. Specifically, regarding the evaluation of PTSD, the JMR indicated that the Board had failed to address the statements made in the Veteran's Notice of Disagreement (NOD) and substantive appeal as well as VA counseling records dated in December 2015. Regarding TDIU, the JMR found that after hypothesizing that the Veteran had sufficient abilities for career success in various fields, the Board had not addressed pertinent evidence such as an April 2012 Disability Benefits Questionnaire (DBQ); statements made by the Veteran in her NOD, substantive appeal and at the November 2015 Board hearing; and vocational rehabilitation counseling records. The Court granted the JMR and the matters were returned to the Board. PTSD rating The Veteran contends that her PTSD is more disabling than the currently assigned evaluation of 70 percent. It is asserted that her disability is productive of total social and industrial impairment. In her May 2012 NOD, she stated that she had constant depression, panic attacks, insomnia with frequent nightmares, avoided crowds, and would kill herself if not for her dogs. During the November 2015 Board hearing, the Veteran testified that she had anxiety and panic attacks when confronted with stressful situations such as difficult discussions in school and that she had to make a significant effort to go out and be with people, particularly in crowds or after dark. She reported that, while she does qualify as a full-time student, she took the minimum class load to do so and was having serious psychiatric problems that affected her grades. An examination was conducted by VA in April 2012. At that time, the diagnoses were PTSD and major depressive disorder. The examiner stated that the symptoms of each diagnosis were distinguishable in that the PTSD symptoms included intrusive memories, nightmares, flashbacks, physiological and emotional reactions to reminders of the trauma, inability to remember important parts of the traumatic events, emotional numbing, a sense of foreshortened future and hypervigilance. Symptoms of depression included feelings of sadness, thoughts of guilt or worthlessness, low energy and diminished sexual interest. Symptoms of both disorders included impaired sleep, social withdrawal, concentration difficulty, anger, and irritability. The examiner quantified the Veteran's disability as occupational and social impairment with reduced reliability and productivity. This impairment could not be attributed to one or the other diagnosis. The examiner noted that, after leaving the military, the Veteran had worked as a paralegal for 15 years then owned and managed her own dog trainer business. She then established a county Humane Society, but was "ousted" from her leadership position in 2009. It was reported that she had lost her home in California to foreclosure, then proceeded to live in a mobile home in the National Parks of four states, where she could live free if she volunteered. She then moved into a home in Idaho with a friend who, she stated, she generally got along with. She described herself as a loner and stated that she gardened, raised chickens, hiked, biked, and enjoyed reading, which helped her "wind down" to go to bed. She was not currently working, but volunteered one day a week at a state park. The examiner noted that the Veteran was currently engaged in individual and group therapy treatments along with psychiatric medication management. Recent outpatient therapy notes showed ongoing nightmares about rape; day-to-day issues with aggressive, threatening women who reminded her of her supervisor who not only did not defend her, but supported the perpetrator to promote her own career; difficulties with women in positions of authority and women in general. She stated that she considered herself "retired" from social life and thought that, if not for her animals and companion dog, she might have ended her life. She was now looking toward the future, however, and anticipated additional volunteer work. She continued to have problems with insomnia and symptoms of recurrent nightmares, panic attacks, transient agoraphobia, hypervigilance, and mistrust of others. On examination, she was oriented in four spheres, with a guarded but cooperative manner. Her eye contact was fair; her speech volume, rate and tone were within normal limits; her mood was dysphoric; and her affect was flat. Her thought process was logical and non-tangential. Her thought content was responsive without delusions, paranoia, or symptoms of psychosis. There were passive suicidal ideations, but without plan or intent. No homicidal ideations were present. VA treatment records show that the Veteran continued with outpatient therapy. In September 2013, she was noted to have had a very rough few weeks due to school issues and legal problems. She continued in her sleep program and stated that she had been depressed by her recent negative events, but she also stated that she had had it worse in the past and now had better coping skills. She had no current suicidal ideations. In May 2015, she reported that she had been more depressed and disconnected and that her PTSD had worsened. She reported a low mood and of being more withdrawn. She reported having "lifelong daily thoughts of harming myself," but stated that she would not because of her dogs. She was noted to be "future oriented" and planned to attend her nephew's graduation. She continued in school and to find benefit in participating in community projects and charity functions, although this had been challenging for her. Her mood was low, and her affect was blunt and restricted. Her PTSD symptoms were noted to be ongoing. She did have suicidal ideation with lifelong daily thoughts of self-harm, but no current suicidal plan. In December 2015, she reported that her emotions had been "running high lately" referring to both anxiety and depression. She had processed emotions related to numerous losses throughout the past year, school stress, and recent news events. She reported that she had not been sleeping well. She was in compliance with her psychiatric medication and reported doing well in school. She continued to assist with rescue animals, but also reported "lifelong daily thoughts of harming myself, I wouldn't do it because of my dogs." She denied any acute or current suicidal or homicidal ideation, but reported more intensive thoughts of suicidal ideation during the anniversary of her trauma. She continued to be future oriented. The assessment was that she had been experiencing numerous losses in her life including a friend who passed away and a friend who relocated. These were difficult because she had minimal friendships with others, but she continued to find benefit and meaning in participating in community projects and charity work. Her PTSD symptoms had been exacerbated by recent school assignments that triggered her past trauma. An examination was conducted by VA in May 2016. The diagnoses were PTSD and major depressive disorder. It was possible to differentiate symptoms that were attributable to each diagnosis. PTSD symptoms included intrusive thoughts and dreams, psychological distress at exposure to cues that symbolized the traumatic events, persistent avoidance of stimuli, negative alterations in cognitions and mood associated with the traumatic events, persistent negative emotion state, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, increased arousal and reactivity associated with traumatic events, irritability, difficulty falling and staying asleep and difficulty concentrating. Depressive symptoms included depressed mood, difficulty sleeping, irritability, feelings of worthlessness, and passive suicidal ideation. The examiner quantified the Veteran's disability as occupational and social impairment with reduced reliability and productivity. It was not possible to differentiate the Veteran's symptoms as they related to occupational and social impairment attributable to each diagnosis as the symptoms overlapped and were present on a daily basis. Currently, it was noted that the Veteran lived alone with her dogs and a tortoise. She stated that she had friends with whom she liked to go out with to eat or go to the movies, but had not done so recently. In her free time, she liked to garden, spend time with her dogs, and ride her bike (which she had not been able to do recently due to back problems.) It was noted that she was a full-time student pursuing her bachelor's degree. She continued to experience nightmares at least once per week and had difficulty falling asleep. A class on insomnia had not been very effective. She felt anxious for which she took medication at bedtime that she reported was somewhat helpful. She stated she often felt anxious when in groups or dealing with unfamiliar people. She also reported having anxiety attacks that were triggered by cues related to her trauma. She took medication to alleviate these symptoms. She reported becoming angry easily, but denied engaging in any physical fights. Anger also affected her ability to concentrate. She had difficulties trusting people and reported that, while she had friends, she did not let anyone get too close to her. She related several events she had attended and stated that she felt exhausted after being around so many people. She reported feelings of depression that worsened at times. She denied difficulties with self-care. She reported suicidal ideation, but no plan or intent. She stated that she had attempted suicide years ago, but was not able to recall the year of this attempt; she was not hospitalized as a result of this attempt. She stated that her pets "keep me on this planet." She was undergoing therapy sessions and recounted the results of a recent trip to the Netherlands with friends. She stated that she felt safer on returning to this country. She was noted to experience diagnostic criteria for PTSD, including directly experiencing traumatic events; recurrent distressing dreams; intense or prolonged psychological distress at exposure to interrenal or external cues; persistent avoidance of stimuli associated with the traumatic events; avoidance of, or efforts to avoid external reminders that aroused distressing memories, thoughts, or feelings; persistent negative emotional state; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outbursts; problems with concentration; and sleep disturbances. Additional symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, flattened affect, an inability to establish and maintain effective relationships and suicidal ideation. On examination, she was appropriately dressed with good hygiene. She was oriented in four spheres and cooperative throughout the interview. Speech was within normal limits for rate, tone, volume and prosody. There was no evidence of hallucinations. Judgement appeared good. Mood was stated as depressed, and affect was dysthymic. The examiner commented on the Veteran's occupational impairment and stated that the Veteran was not currently working, but was going to school full time. She reported difficulties with concentration when upset or reminded of her trauma. She did participate in social activities such as going out with friends, but stated that she often found herself tired after being among many people for extended periods of time. She denied difficulties with performing activities of daily living and stated that her pets helped her alleviate some of her depressive symptoms. She continued to experience passive suicidal ideation, but did not have a plan or intent to kill herself. She continued to participate in individual therapy and took psychotropic medication that she found helpful in managing her anxiety, but not her depression or sleep. For these reasons, the examiner found that the symptoms likely caused occupational and social impairment with reduced reliability and productivity. VA outpatient treatment records show that the Veteran continues to receive treatment at the mental health clinic. On April 7, 2017, it was noted that she wished to reduce her isolation, hypervigilance and sleep issues. The examiner noted that she arrived promptly for her appointment and exhibited good personal hygiene. She continued to receive medical treatment for ongoing health issues. She stated that she had stopped going to school as it became "too overwhelming." She did not plan to return. She continued to report PTSD symptoms, including nightmares and sleep issues, clenching her teeth, ongoing triggers to past trauma, isolation, and trust issues. She reported very limited contact with others and felt on edge when hearing someone raise their voice. Her mood appeared sad and withdrawn and she reported a chronic history of suicidal ideation, but she denied any acute suicidal or homicidal ideation. She did report more intensive thoughts of suicide during the anniversary of her trauma, which was around February. She reported that she was coping with her triggers with the support of her friend and roommate. The examiner commented that the Veteran's PTSD symptoms had been exacerbated by school assignments and recent political coverage in the media. She reported feeling overwhelmed at times with stressors and had stopped attending school due to feeling overwhelmed in that environment. VA mental health treatment records dated in August 2019 show that the Veteran was pleasant, cooperative, alert, and oriented. Her thought process was linear, logical and goal directed; her speech was of normal rate, volume and prosody; and her affect was relatively euthymic, but appropriate and of full range. She denied suicidal or homicidal ideation as well as active psychotic material. Her insight and judgment were intact. In March 2021, she was noted to be alert and attentive with a euthymic mood. There were no perceptual disturbances noted. Her thought processes were normal, coherent, linear, logical and goal-directed. There was no unusual thought content. Her insight and judgement were good, and her memory was intact. The assessment was that the Veteran remained stable in mood without any increased risk in harm to herself or others. Mental status examination in December 2021 was essentially the same with the assessment being no remarkable change. A May 2022 private psychiatrist evaluation was received in connection with the Veteran's claims for benefits. After extensively reviewing the Veteran's mental health treatment notes, the examiner reviewed the results of an interview. It was noted that the Veteran was cooperative with speech normal in rate, rhythm and volume. She described her mood as "more likely to cry or walk away than fight." Her thought process was clear, coherent, and goal directed. Her thought content was without delusions. She denied active thoughts of harming herself or others. She described trauma-related nightmares and felt that she relived her military sexual trauma. She had difficulty attending VA appointments, which made it less likely that she would follow through on certain medical tests. She avoided watching the news and only read from trusted sources so she could regulate the content and take breaks if she was less triggered. She described herself as "conflict-avoidant." Leisure activities were minimal, and she had no motivation to garden anymore. PTSD screening included symptoms of repeated, disturbing, and unwanted memories; repeated and disturbing dreams; sudden falling or acting as if the stressful experience were happening again; feeling upset of reminders of the stressful experience; strong physical reactions when something reminded her of the stressful experience; avoiding memories, thoughts or feelings related to the stressful event; avoiding external reminders; strong negative beliefs about herself; blaming herself for the stressful experience; strong negative feelings such as fear, horror, anger, guilt, or shame; loss of interest in activities that she used to enjoy; feeling distant or cut off from people; trouble experiencing positive feelings; irritable behavior; being super alert or watchful; feeling jumpy; having difficulty concentrating; and trouble falling or staying asleep. The examiner went on to note that the Veteran had been initially diagnosed with major depressive disorder, but PTSD was her primary diagnosis, and her depressive symptoms were readily captured within the diagnostic criteria for PTSD. Under the General Formula for Mental Disorders (General 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). A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. Id. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. After review of the record, the Board concludes that the Veteran's symptoms have not caused the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximate the symptoms associated with a 70 percent rating, and have resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. In this regard, VA treatment records consistently demonstrate that the Veteran's PTSD is primarily manifested by sleep disturbances, including nightmares; flashbacks; ongoing triggers to past trauma; isolation; trust issues; hypervigilance and depression. While she has consistently reported suicidal ideation, she has also consistently denied any acute suicidal or homicidal ideation. The VA examinations and the Veteran's lay statements show that her PTSD is manifested by symptoms associated with a 70 percent rating, including suicidal ideation, numerous panic attacks, and difficulty in adapting to stressful circumstances. She has not exhibited symptoms associated with a 100 percent rating such as an intermittent inability to perform activities of daily living. She also had symptoms that are not listed with a specific rating, such as fatigability, hypervigilance and easy startling. She stated that she avoided crowds, had insomnia with frequent nightmares, and would kill herself if not for her dogs. But 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. In particular, the Veteran reported that these symptoms were not present daily, but would increase in severity under certain circumstances and that being around people exhausted her. The Board finds that these symptoms are contemplated by the assigned 70 percent rating. The Board again acknowledges that the Veteran has expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. As discussed above, the Veteran regularly denied thoughts, intent, or a plan involving self-harm in all existing treatment records, and during both the VA examinations and during the private psychiatrist's interview dated in May 2022. In summary, the Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran has experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA and the private psychiatrist report shows that the Veteran is well-oriented without delusions or other evidence of psychosis. She is able to attend to the activities of daily living and VA outpatient treatment records have shown her disability to be relatively stable over the years under consideration for this appeal. The Veteran is not shown to experience symptoms contemplated by a 100 percent rating and the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. Thus, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms have resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent rating are not met and the appeal must be denied. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (included but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16. The Board has reviewed the evidence of record regarding whether the Veteran is able to obtain or sustain employment. The records shows that the Veteran is within one class of a bachelor's degree and has work experience as a paralegal, director of a nonprofit organization, and dog trainer. Service connection is in effect for PTSD, rated 70 percent disabling; and residuals of a left shoulder strain, rated 10 percent disabling prior to July 14, 2016, and 20 percent disabling thereafter. The record shows that the Veteran was found unemployable by the Social Security Administration (SSA) in a February 2013 determination as a result of anxiety related disorders and other and unspecified arthropathies which the record shows included cervical neck fusion and lumbar and thoracic osteoarthritis. VA treatment records and examination reports regarding the Veteran's PTSD have already been outlined above. Regarding the Veteran's left shoulder disorder, an examination was conducted by VA in April 2012. At that time, the Veteran was noted to be right-handed. Range of motion of the left shoulder was normal, with pain noted at 180 degrees flexion and abduction. The Veteran was able to perform repetitive use testing without functional loss. There was pain on palpation and movement, but no guarding. Muscle strength testing was normal. There was a positive resistance test. On examination by VA in August 2016, range of motion was flexion to 120 degrees, abduction to 100 degrees, and external and internal rotation to 70 degrees. The Veteran was unable to perform overhead activities. There was some additional loss after repetitive use testing with flexion and abduction limited to 90 degrees and some lack of muscle strength in abduction. The examiner stated that the Veteran's shoulder condition would preclude physically demanding occupational activities that required the use of the left upper extremity. The record contains extensive vocational rehabilitation records documenting the Veteran's progress toward completion of her college education. It is noted that, as argued by the Veteran's representative, she did change her major area of study on several occasions; she was able to complete most of her work toward a degree in sociology. Treatment records on April 7, 2017, however, show that she had stopped going to school as it became 'too overwhelming", and she did not plan to return. May 2017 correspondence shows that there were repeated attempts by her VA vocational rehabilitation counselor to contact her for a program update and, in August 2017, it was noted that her program had been interrupted. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes her case outside of the norm. The sole fact that she is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). (Continued on the next page) In this case, the Board finds that the Veteran's left shoulder disorder does not contribute significantly toward her inability to work, particularly in consideration of her work history, which includes sedentary work as a paralegal and director of a nonprofit organization. Her PTSD does cause significant impairment, but she was making consistent progress toward her college degree until April 7, 2017, when it was noted that the classes triggered increased PTSD symptoms. This is found to take the Veteran's case outside the norm of similar veterans with similar disabilities. This also appears to be the earliest date that it can be determined that the increase in severity occurred. As such, a TDIU is found to be warranted from April 7, 2017, and thereafter, but not before. To this extent, the appeal is allowed. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.