Citation Nr: A24042011 Decision Date: 07/30/24 Archive Date: 07/30/24 DOCKET NO. 210303-139370 DATE: July 30, 2024 ORDER Entitlement to a disability rating in excess of 70 percent for a service-connected acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), secondary to military sexual trauma (MST), is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of symptoms of the Veteran's service-connected acquired psychiatric disability, to include PTSD due to MST, did not more closely approximate total occupational and social impairment. 2. The Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased 100 percent disability rating for a service-connected acquired psychiatric disorder, to include PTSD secondary to MST, 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 criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2003 to February 2004, with additional service in the Army Reserve. Among other awards and decorations, the Veteran received the Joint Service Commendation Medal. This matter is on appeal from a September 2020 higher level review rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has recharacterized the Veteran's claim as entitlement to service connection for an acquired psychiatric disability, to include PTSD due to MST. Procedural Background The Veteran filed a VA 21-0966 intent to file form that was received on October 24, 2018. Within one year thereof, the Veteran submitted an October 17, 2019, VA 21-526 EZ fully developed claim for entitlement to service connection for PTSD as secondary to MST. A February 2020 rating decision denied the Veteran's service connection claim finding that the Veteran did not have a current mental health diagnosis. In March 2020, the Veteran filed a VA 20-0996 Request for Higher Level Review seeking higher level review of the February 2020 rating decision. A July 2020 higher level review rating decision found a duty to assist error in the February 2020 rating decision, namely that the Veteran had a diagnosed mental health disorder. Although the Veteran initially requested higher level review when submitting the March 2020 VA Form 20-0996, Decision Review Request: Higher-Level Review, the higher-level reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. A subsequent September 2020 rating decision granted entitlement to service connection for PTSD, secondary to MST. The rating decision assigned a 70 percent disability rating effective October 24, 2018, the date the Veteran submitted an intent to file form. In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. As an appeal in which the appellant requested, on the Notice of Disagreement, direct review by the Board without submission of additional evidence and without a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the September 2020 decision on the issues on appeal. 38 C.F.R. § 20.301. Due to an identified error, additional development occurred between the original rating decision and the September 2020 rating decision on appeal. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to a disability rating in excess of 70 percent for a service-connected acquired psychiatric disorder, to include PTSD due to MST The Veteran maintains that she is entitled to a higher, 100 percent disability rating for her service-connected acquired psychiatric disorder, to include PTSD secondary to MST. For the reasons outlined below, the Board finds that the Veteran is not entitled to a disability rating in excess of 70 percent for her service-connected acquired psychiatric disability throughout the period on appeal. Legal Criteria The Veteran's acquired psychiatric disorder is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the General rating formula, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. This includes symptoms such 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 an 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. A total schedular rating of 100 percent is warranted 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Factual Background The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of an acquired psychiatric disability. In October 2019, the Veteran submitted a letter from a treating licensed clinical psychologist at a VA outpatient mental health clinic. The provider noted that the Veteran has been seeking services from the VA for mental health problems since approximately 2009. She confirmed the Veteran's diagnosis of PTSD due to MST. The provider wrote that the Veteran has discussed her specific trauma in detail in 2003 when a direct supervisor sexually harassed and assaulted the Veteran on multiple occasions. As a result of the in-service trauma, in addition to significant depressive symptoms, the private provider found that the Veteran reported symptoms that were consistent with a diagnosis of PTSD to include recurrent and distressing memories of the MST experience, heightened reactivity to stimuli that remind her of the MST incident, prolonged hyperarousal manifesting in agitation and restlessness, significant feelings of guilt and extremely low self-esteem, and pervasive avoidant behavior that has severely impaired her ability to function in society and to form lasting and fulfilling relationships with others. The Veteran underwent a VA PTSD examination in November 2019. The examiner diagnosed the Veteran with PTSD due to MST. The examiner also noted symptoms of depression and anxiety which did not meet the diagnosis for a separate diagnosis but were found to be directly related to the diagnosis of PTSD. The Veteran was noted to have symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances and impaired impulse control such as unprovoked irritability with periods of violence. The Veteran was noted to have occupational and social impairment with deficiencies in most areas. The Veteran was noted as functionally impaired as it related to this diagnosis. The examiner linked the Veteran's diagnosis to her time in service and specifically MST she suffered during her time in service. The examiner opined that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Analysis The question for the Board is whether the evidence reflects that the Veteran's mental symptomatology and resulting functional impairment approximated the criteria for a 100 percent initial evaluation. While the Veteran's PTSD does result in significant disability, the Board finds that the criteria for a 100 percent schedular evaluation were not during the appeal period. The record does not reflect symptoms typically associated with a 100 percent evaluation for total occupational and social impairment. For example, there was no evidence of gross impairment in thought processes or a persistent danger of hurting others, she has not had an 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. The Veteran has not had gross impairment in thought processes. In available treatment records she presented as alert, oriented and cooperative and was observed as having logical and goal directed thought processes. There were no indications of issues with grooming or hygiene. There is no indication of any suicidal ideation. At no time during the entire period on appeal has the Veteran been observed as having any type of psychosis or any audio or visual hallucinations. The Board's grant of TDIU below recognizes that the Veteran has significant and total occupational impairment from her service-connected PTSD; however, the evidence does not support a finding of total social impairment, which is required for a 100 percent schedular rating. Regarding social impairment, the Veteran reported that she has a close relationship with her parents. She also indicated that she made friends with fellow MST survivors she met during treatment and has maintained contact even after the end of treatment. Based on a thorough review of the evidence, the Board concludes that the Veteran's PTSD symptomatology most nearly approximates the criteria for a 70 percent evaluation for the entirety of the period on appeal. Accordingly, the appeal seeking an evaluation in excess of 70 percent for a service-connected acquired psychiatric disability, to include PTSD due to MST, is denied. 38 U.S.C. § 5107. The Board acknowledges that the Veteran has gone through an incredibly difficult time during and after her period of service. However, the symptoms reported during the period on appeal more closely approximate those contemplated by a 70 percent rating. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence 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(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran has suffered from occupational and social impairment, with deficiencies in most areas but not total occupational and social impairment. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue. 2. Entitlement to a TDIU In February 2020, the Veteran submitted a VA Form 21-8940 for an Application for Increased Compensation Based on Unemployability. The Veteran claimed that her service-connected PTSD affected the Veteran's employment since February 1, 2019, that she last worked on April 19, 2019 and was too disabled to work from April 22, 2019. It is established VA policy 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. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a), 4.15. If the total rating is based on a disability or combination of disabilities for which the rating schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). A total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the conclusions of VA examiners are not dispositive. However, the observations of the examiners regarding functional impairment due to service-connected disability go to the question of physical or mental limitations that may impact the veteran's ability to obtain and maintain employment. The Veteran is service-connected for an acquired psychiatric disability with a 70 percent disability from October 24, 2018. Accordingly, the Veteran met the schedular criteria for a TDIU, effective October 24, 2018, based on her service-connected acquired psychiatric disability alone. Therefore, the question before the Board is whether the Veteran is precluded from obtaining or maintaining a substantially gainful occupation as a result of his service-connected acquired psychiatric disorder, to include PTSD due to MST. The Veteran has a college education and subsequent legal training although it is unclear whether she obtained a law degree. She has reported work experience in the human resources field. Additionally, she has reported attempting to seek employment in the summer of 2020 without success. Due to the specific nature, severity, and persistence of the Veteran's psychiatric PTSD symptoms, the Board finds she is unable to obtain and maintain substantially gainful employment. Although it is conceivable that there may be some occupations that the Veteran could have performed with accommodations, the totality of the evidence supports a finding that her service-connected acquired psychiatric disability rendered her unable to secure and maintain substantially gainful occupation even when her educational and work background are considered. (Continued on the next page) ? The Board notes, the evidentiary standard for TDIU opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific Veteran would be so precluded as a result of service-connected disabilities. Thus, when considering this specific Veteran's disabilities in connection with her employability, the evidence of record establishes entitlement to TDIU. Accordingly, the claim is granted. 38 U.S.C. § 5107(b). RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Woehlke, V. 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.