Citation Nr: 1760297
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-21 980 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUES

1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to March 2, 2006.

2. Entitlement to a disability rating in excess of 50 percent for PTSD from May 1, 2006 to May 16, 2006.

3. Entitlement to a disability rating in excess of 30 percent for PTSD from September 1, 2006 to September 4, 2008.

4. Entitlement to a disability rating in excess of 30 percent for PTSD from November 1, 2008 to September 12, 2011.

5. Entitlement to a disability rating in excess of 50 percent for PTSD from September 13, 2011 to March 5, 2017.

6. Entitlement to a disability rating in excess of 70 percent for PTSD from March 6, 2017.

7. Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Veteran represented by: Adam G. Werner, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

S. Delhauer, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1980 to March 1988.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

In July 2017, the Veteran presented testimony at a hearing in Washington, D.C. before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record.

In the July 2009 rating decision, the RO granted entitlement to service connection for posttraumatic stress disorder (PTSD), and assigned multiple staged ratings. The Board is aware that the RO has characterized the Veteran’s claims for increased disability ratings for her PTSD as being on appeal from a November 2011 rating decision. However, the Board finds the Veteran’s July 2010 notice of disagreement indicated she disagreed with the July 2009 rating decision, not just the final 30 percent staged rating assigned. In the November 2011 rating decision, the RO granted a 50 percent disability rating, effective September 13, 2011. In a March 2017 rating decision, the RO granted a 70 percent disability rating, effective March 6, 2017. As the Veteran has not been granted the maximum benefit allowed for the entire appeal period, the claims are still active as characterized on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran has indicated that she cannot work due to her service-connected PTSD. Accordingly, the Board has characterized the issues on appeal so as to include a claim for entitlement to a TDIU.

As will be discussed in detail below, the Board finds entitlement to a 100 percent disability rating for PTSD is warranted as of March 6, 2017, and accordingly, the issue of entitlement to a TDIU on or after March 6, 2017 is moot.

Since the issuance of the March 2017 supplemental statement of the case, the Veteran’s attorney submitted July 2017 evaluations and opinions from psychologist J.A., and waived consideration of this additional evidence by the RO during the July 2017 hearing before the Board.

FINDINGS OF FACT

1. Throughout the appeal period prior to March 6, 2017, there is an approximate balance of positive and negative evidence as to whether the Veteran’s PTSD was manifested by symptoms resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. However, total occupational and social impairment was not shown.

2. As of March 6, 2017 there is an approximate balance of positive and negative evidence as to whether it was factually ascertainable the Veteran’s PTSD was manifested by symptoms resulting in total occupational and social impairment.

3. The Veteran’s PTSD is rated at least 60 percent disabling, and the Veteran is unable to secure and follow substantially gainful employment as a result of her service-connected disability.

CONCLUSIONS OF LAW

1. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial 70 percent disability rating, but no higher, for PTSD prior to March 2, 2006 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130 (2017).

2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 70 percent disability rating, but no higher, for PTSD from May 1, 2006 to May 16, 2006 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130 (2017).

3. Resolving reasonable doubt in favor of the Veteran, the criteria for a 70 percent disability rating, but no higher, for PTSD from September 1, 2006 to September 4, 2008 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130 (2017).

4. Resolving reasonable doubt in favor of the Veteran, the criteria for a 70 percent disability rating, but no higher, for PTSD from November 1, 2008 to September 12, 2011 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130 (2017).

5. Resolving reasonable doubt in favor of the Veteran, the criteria for a 70 percent disability rating, but no higher, for PTSD from September 13, 2011 to March 5, 2017 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130 (2017).

6. Resolving reasonable doubt in favor of the Veteran, the criteria for a 100 percent disability rating for PTSD from March 6, 2017 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130 (2017).

7. The criteria for entitlement to a TDIU have been met prior to March 6, 2017. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA’s duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims.

Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board…to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Increased Ratings for PTSD

Rating Principles

A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126.

PTSD (Diagnostic Code 9411) is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. In relevant part, the rating criteria are as follows:

A 50 percent rating is warranted 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; difficulty in establishing 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 that 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 worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating 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 minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).

In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to the DSM. See 38 C.F.R. § 4.125(a).

Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the Fourth Edition of the DSM (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Because the RO certified the Veteran’s appeal to the Board in March 2017, this claim is governed by the DSM-5.

Analysis

In the July 2009 rating decision, the RO granted entitlement to service connection for PTSD. The RO’s initial assignment of staged ratings included periods of 100 percent disability ratings from March 2, 2006 to April 30, 2006, May 16, 2006 to August 31, 2006, and September 4, 2008 to October 31, 2008 due to in-patient treatment. As the Veteran received the maximum benefit allowed, those periods are not before the Board.

The Board initially notes that, in addition to PTSD, diagnoses of other nonservice-connected mental disorders are of record. The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Notably, in this case, the medical evidence of record is unclear in distinguishing between symptoms caused by the Veteran’s nonservice-connected mental disorders and those caused by her service-connected PTSD. Resolving all reasonable doubt in the Veteran’s favor, for the purposes of this decision, the Board will consider all of the Veteran’s mental health symptoms to be related to her service-connected PTSD in the adjudication of these claims.

Prior to March 6, 2017

Following careful review of all the evidence of record, to include the Veteran’s VA treatment records, VA examination reports, VA vocational rehabilitation records, private psychological opinions, and the competent and credible lay statements and testimony of record, the Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran’s psychiatric symptoms prior to March 6, 2017 more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as contemplated by a 70 percent disability rating. However, the Board finds that total occupational and social impairment, as contemplated by a 100 percent disability rating, was not shown. See 38 C.F.R. §§ 4.7, 4.130.

First, the evidence of record indicates the Veteran worked as a hairdresser throughout the majority of the appeal period prior to March 6, 2017. However, the Board finds the totality of the evidence of record is in equipoise as to whether the Veteran’s PTSD was manifested by symptoms prior to March 6, 2017 which more nearly approximated total occupational impairment. Accordingly, the Board will afford the Veteran the benefit of reasonable doubt, and finds these symptoms resulted in what more nearly approximated total occupational impairment.

The Veteran’s service-connected PTSD due to military sexual trauma has manifested in symptoms such as depression, anxiety, panic attacks, sleep impairment, nightmares, flashbacks, intrusive thoughts, hypervigilence, suspiciousness, anger, irritability, lack of concentration, dissociation, and social withdrawal. The Veteran’s testimony, VA treatment records, and VA vocational rehabilitation records indicate that because she worked as a hairstylist in barber shops, most of the Veteran’s clients, co-workers, and supervisors were male, and she worked in a crowded, noisy workstation. These working conditions would trigger and exacerbate her PTSD symptoms. The evidence of record indicates the Veteran’s PTSD symptoms impaired her ability to establish and maintain effective relationships with her co-workers and clients. The Veteran has reported conflicts with co-workers and her supervisors, including a verbal altercation with a female co-worker, a male co-worker stealing the Veteran’s clients while they waited for her, and sexual harassment by her boss, including his attempts to kiss the Veteran. Further, the Veteran’s nightmares, sleep impairment, and side effects from prescribed medications caused difficulty with the Veteran’s ability to arrive at work on time in the morning. The medical evidence of record indicates the Veteran’s PTSD symptoms also impaired her ability to adapt to stressful circumstances including a work-like setting. The Veteran was working up to 38 hours per week for a time during the appeal period, and cutting hair for private clients in their homes, but ultimately had to reduce her hours back down to part time as the stress of a nearly full time schedule started to exacerbate her PTSD symptoms including panic attacks, feeling overwhelmed, and depression.

The evidence of record indicates that the Veteran experienced periods during which the severity of her PTSD symptoms lessened and she was functioning well at work, following her inpatient treatment periods and while abstinent from alcohol and substance use. However, the Board finds the totality of the evidence of record indicates these periods of remission were temporary. The Veteran’s VA treatment records indicate that in 2009 and again around 2010 or 2011 the Veteran resumed using alcohol, and receive two charges of driving under the influence (DUI), causing her to lose her driver’s license. See November 2012 VA PCT individual psychotherapy note. VA treatment records also indicate the Veteran attempted suicide around 2012, but did not report the attempt until years later. The Veteran indicated that despite her work in the barbershop triggering and exacerbating her PTSD symptoms, she did not think she could find a hairdressing job at a different location because of her DUI charges. Further, as will be discussed in more detail below regarding the Veteran’s claim for a TDIU, the Veteran was unable to find employment in an administrative line of work.

Accordingly, the Board finds the totality of the evidence of record indicates the Veteran’s PTSD symptoms impaired the Veteran’s ability to establish and maintain effective relationships at work with co-workers and clients, adapt to stressful circumstances including a work-like setting, and to obtain employment in another line of work which would not trigger and exacerbate her PTSD. The Board affords the Veteran the benefit of reasonable doubt, and finds her PTSD manifested in what more nearly approximated total occupational impairment.

However, the Board finds the totality of the evidence of record does not indicate the Veteran’s PTSD manifested in total social impairment prior to March 6, 2017.

First, the evidence of record indicates the Veteran maintained relationships with her family members, including her mother, nephew, daughter, and granddaughter. The Board acknowledges the evidence of record indicates the Veteran’s relationships with her mother, brother, sister, niece, and nephew could be very stressful and strained due to a variety of factors, which could include the Veteran’s PTSD symptoms such as dissociation and social withdrawal. However, the Veteran’s VA treatment records indicate the Veteran’s relationship with her nephew was overall a positive relationship for the Veteran, despite the nephew’s being “difficult” at times, she would take the nephew on outings when possible, and strove to nurture and maintain a stable, loving relationship for him. See, e.g., November 2012 VA SATP initial treatment plan; May 2011 VA individual psychotherapy note; April 2011 VA individual psychotherapy note; March 2011 VA individual psychotherapy note; December 2008 VA women survivors of abuse group note. Further, although the Veteran’s relationship with her mother could be contentious, especially regarding the Veteran’s childhood traumas, the totality of the evidence of record indicates the Veteran’s relationship with her mother could also be supportive and positive, especially as the Veteran gained skills through therapy on ways to more effectively communicate with her mother. See, e.g., March 2016 VA psychology general progress note; March 2013 VA PCT individual psychotherapy note; November 2012 VA SATP initial treatment plan; June 2012 VA PCT individual psychotherapy note; May 2011 VA individual psychotherapy note; December 2010 VA individual psychotherapy note.

Although the Veteran was unable to maintain a very close relationship with her daughter and granddaughter due to their geographical distance and the daughter’s active duty service, the totality of the evidence of record indicates that during the appeal period the Veteran’s visits with her daughter and granddaughter were mostly positive experiences for the Veteran, though they did trigger some depression and guilt in the Veteran regarding past circumstances and actions. The evidence of record indicates the Veteran sought to continue to make efforts to strengthen those relationships, and looked forward to the opportunities to visit with her daughter and granddaughter. See, e.g., December 2013 VA MHC-SWS individual note; September 2013 VA PCT medication management note; November 2012 VA SWS integrated biopsychosocial summary; November 2012 VA MHC provider follow-up note; February 2012 VA women survivors of abuse group therapy note; August 2011 individual psychotherapy note; June 2011 VA individual psychotherapy note; March 2011 VA women survivors of abuse group therapy note; October 2010 VA women survivors of abuse group note; November 2009 VA women survivors of abuse group note; April 23, 2009 VA women survivors of abuse group note; August 2006 VA group therapy progress note.

Finally, the totality of the evidence of record indicates the Veteran was also able to establish relationships outside her family members. The evidence of record indicates the Veteran dated some and was involved in romantic relationships, though her PTSD symptoms would affect her ability to maintain these relationships due to her struggles with seeking to control the relationships, and her concerns about intimacy and dependency due to her trauma history. See, e.g., August 2011 VA individual psychotherapy note; June 2011 VA individual psychotherapy note; May 2011 VA individual psychotherapy note; January 2010 VA individual psychotherapy note; September 2009 VA individual psychotherapy note; November 2007 VA individual psychotherapy note; May 31, 2007 VA women survivors of abuse group note; March 2005 VA psychiatric medication review. The evidence of record indicates that the Veteran did not maintain a lot of friendships, especially as she began treatment and did not have a lot of friends who did not use substances. However, the Veteran did establish a few friendships, including social interactions and support with women from her therapy groups outside of therapy sessions, including on weekends. See, e.g., June 2012 VA PCT individual psychotherapy note; October 2011 VA PCT individual psychotherapy note; September 2011 VA individual psychotherapy note; May 2011 VA individual psychotherapy note; May 31, 2007 VA women survivors of abuse group note; April 23, 2007 VA individual psychotherapy note.

The Board notes that in a July 2017 independent mental residual functional capacity case review, psychologist J.A. stated the Veteran’s social impairment is much worse than her occupational impairment, and opined the Veteran’s degree of impairment was consistent with a 100 percent disability rating socially dating back to her discharge from active duty service. However, J.A. did not provide a rationale for this opinion, besides noting the Veteran was quick to become anxious, irritable, and withdrawn, that she was wary of men, and that she was highly dependent upon “the system” to meet her dependency needs. J.A. did not specifically discuss the Veteran’s relationships with her family members, dating relationships, or her friendships throughout the appeal period. Accordingly, the Board finds J.A.’s opinion is outweighed by the other evidence of record, including the Veteran’s voluminous and detailed VA treatment records.

Accordingly, the Board finds the totality of the evidence of record indicates the Veteran’s PTSD symptoms caused deficiencies in her family relationships and impaired her ability to establish and maintain effective romantic relationships and friendships, but the preponderance of the competent and credible evidence of record is against finding total social impairment prior to March 6, 2017. Accordingly, the Board finds the Veteran’s social impairment prior to March 6, 2017 more closely approximated the social impairment contemplated by a 70 percent disability rating, but no higher.

Further, although the Veteran may have met some of the criteria for a 100 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board finds the Veteran’s PTSD symptoms, including their frequency, severity, and duration, more closely approximated those enumerated in the schedule of ratings for mental disorders for a 70 percent disability rating, not a 100 percent disability rating, prior to March 6, 2017. See 38 C.F.R. § 4.130.

During the February 2008 VA examination, and beginning about October 2012 in the Veteran’s VA treatment records, the Veteran reported suicidal ideation. In a March 2017 VA mental health clinic general progress note, the Veteran reported she had attempted suicide by overdose in 2012. As discussed above, the Veteran was charged with DUIs in 2010 and 2011. See, e.g., October 2012 SATP-IOP screening assessment note. Further, twice the Veteran reported accepting money in exchange for sex during the appeal period, once during a relapse of alcohol and substance abuse. See January 2012 VA PCT individual psychotherapy note; June 2006 Richmond VAMC discharge summary. The March 2013 VA examiner reported the Veteran had tried to kill herself six times, however except for the one instance in 2012 discussed above, the totality of the evidence of record does not indicate a suicide attempt during the appeal period. Further, the Veteran’s VA treatment records also indicate the Veteran repeatedly reported she would seek support from her therapy groups, and reported she would come to the VA hospital again and seek help if she felt overwhelmed or hopeless. See, e.g., November 21, 2016 VA MST individual note; July 2016 VA MST individual note; May 2016 VA MST individual note; October 2012 VA emergency care provider progress note; August 2012 VA MHC provider follow-up note; June 2006 Richmond VAMC discharge summary; March 2006 VA mental health nursing note (Veteran requested to be admitted to the hospital due to suicidal ideation, feeling helpless and hopeless). The Board finds the Veteran’s reports of suicidal ideation with sporadic, isolated reports of potentially self-injurious behavior were not of the frequency, severity, and duration of a persistent danger of hurting herself as enumerated in the schedule of ratings for mental disorders under a 100 percent disability rating, but are commensurate with the suicidal ideation enumerated under a 70 percent disability rating.

Similarly, the evidence of record indicates the Veteran was involved in a physical altercation with another driver regarding an incident for which she was charged with DUI. See March 2009 Va women survivors of abuse group note; March 2009 VA individual psychotherapy note. A June 2015 VA social worker note indicates the Veteran reported a neighbor was issued a protective order against the Veteran and her family, but that the Veteran also sought a protective order against the neighbor. However, throughout the appeal period the totality of the medical evidence indicates the Veteran repeatedly denied any homicidal ideation, reported she did not engage in corporal punishment of her nephew, and she reported that in verbal conflicts with co-workers she was able to handle the situations calmly and assertively. Further, the totality of the evidence of record did not indicate any concerns from the Veteran’s treating VA mental health professionals that she was considered a danger to others at any point during the appeal period. See, e.g., September 2015 VA MHC-SWS individual note; August 2014 VA MHC-SWS individual note; August 2012 VA MHC provider follow-up note; February 2012 VA PCT individual psychotherapy note; February 2012 VA women survivors of abuse group therapy note; November 2011 VA PCT individual psychotherapy note; October 2011 VA PCT individual psychotherapy note; September 2011 VA examination report; August 2011 VA women survivors of abuse group therapy note; June 2011 VA individual psychotherapy note; April 2011 VA individual psychotherapy note. Accordingly, the Board finds the Veteran’s one physical altercation was not of the frequency, severity, and duration of a persistent danger of hurting others as enumerated in the schedule of ratings for mental disorders under a 100 percent disability rating.

Further, the Veteran’s VA treatment records include a few reports that she would hear mumbling or someone calling her name when no one was around, sometimes saw things at night, and she would inappropriately laugh to herself at times. See, e.g., November 2012 VA MHC provider follow-up note; February 2007 VA MHC provider follow-up note; February 2005 VA biopsychosocial assessment. However, these symptoms were often intertwined with the Veteran’s alcohol or substance use, and most often throughout the appeal period the Veteran denied any hallucinations. See, e.g., July 2015 VA PCT medication management note; October 2014 VA PCT medication management note; February 2011 VA psychological evaluation (for vocational rehabilitation); October 2009 VA MHC provider follow-up note; December 2008 VA MHC provider follow-up note; May 2008 VA mental health physician note; June 2007 VA MHC provider follow-up note; August 2006 VA psychiatric medication review. Further, the Veteran’s treating VA providers and VA examiners have repeatedly described the Veteran as pleasant, and her behavior as appropriate. Accordingly, the Board finds the Veteran’s brief and isolated reports of hearing someone mumble or call her name, seeing things at night, and inappropriate laughing to herself were not of the frequency, severity, and duration of persistent hallucinations or grossly inappropriate behavior as enumerated in the schedule of ratings for mental disorders under a 100 percent disability rating.

The Veteran’s VA treatment records also include reports of some repetitive behaviors, such as changing her clothes several times a day without reason, compulsive cleaning and ordering, washing and checking her hair constantly, or compulsively checking door locks and whether the stove was left on. See, e.g., November 2012 VA MHC provider follow-up note; April 2012 VA PCT individual psychotherapy note; January 2010 VA individual psychotherapy note; February 2005 VA biopsychosocial assessment. However, throughout the appeal period reports of such behavior were isolated, and VA treatment records do not indicate that such behaviors, when present, affected the Veteran’s ability to perform her activities of daily living. During the July 2017 hearing before the Board the Veteran testified that at times her boss had made comments about her disheveled appearance. However, the Veteran’s VA treatment records do not include any reports or concerns about the Veteran’s hygiene, appearance, or ability to perform activities of daily living. Accordingly, the Board finds the Veteran’s intermittent repetitive behaviors, and any periodic disheveled appearance, were not of the frequency, severity, and duration of an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, as enumerated in the schedule of ratings for mental disorders under a 100 percent disability rating.

Finally, the Veteran has reported experiencing memory impairment due to her PTSD. In the July 2010 notice of disagreement the Veteran reported problems with her short- and long-term memory cause her to forget simple tasks which she constantly needed to write down. See also October 2010 vocational rehabilitation counseling record narrative report. A February 2011 VA psychological evaluation performed in conjunction with the Veteran’s VA vocational rehabilitation program noted the Veteran had some difficulty in remembering instructions throughout the testing. The March 2013 VA examiner reported the Veteran’s PTSD symptoms included mild memory loss. The Board finds the evidence of some memory impairment was not of the frequency, severity, and duration of memory loss for names of close relatives, own occupation, or own name as enumerated in the schedule of ratings for mental disorders under a 100 percent disability rating.

Therefore, the Board has considered the Veteran’s claim, and the lay and medical evidence of record, and concludes that based upon the totality of the evidence of record, the Veteran’s level of social and occupational impairment due to the symptoms of her service-connected PTSD warrants an initial rating and staged ratings of 70 percent, but no higher, prior to March 6, 2017. The Board finds total occupational and social impairment was not shown, and the evidence of record more closely approximates the criteria for a 70 percent rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, entitlement to an initial disability rating of 70 percent, but no higher, for PTSD prior to March 2, 2006 is granted. Further, entitlement to disability ratings of 70 percent, but no higher, for PTSD from May 1, 2006 to May 16, 2006, September 1, 2006 to September 4, 2008, and November 1, 2008 to March 5, 2017 are granted.

From March 6, 2017

Following the March 6, 2017 VA examination, the VA examiner noted the Veteran’s report that two weeks prior her mother had asked her to move out, as she commented that the Veteran experienced high levels of anger to the degree her mother thought the Veteran was intoxicated at the time, rather than solely from her PTSD symptoms. The Veteran reported having difficulty communicating and interacting with her family of origin, and that in the previous year she had experienced a high level of impairment in her relationship with her family members of origin. The Veteran reported she had not communicated with her adult daughter as much as should, and that she experienced a very depressed mood at times during previous year, and would not answer her daughter’s phone calls on those occasions. The Veteran further reported no dating relationship in previous year due to her PTSD symptoms, including her concerns regarding physical intimacy and her difficulty sleeping in same bed with someone. Finally, the Veteran also reported a low interest in developing and maintaining friendships, as well as a sense of disconnect and being emotionally flat when interacting with others, so she preferred to be alone most of the time. The Veteran stated she was becoming introverted and felt most safe in her home during recent years. The Veteran reported a low level of trust of others, irritability, impatience, and anxiety when interacting with others, and panic attacks more than daily, both at home and away from home. The Veteran stated that in the previous year she had not initiated any social outing with a friend, declined and made excuses to friends due in part to her discomfort in and desire to avoid large crowds, and that her friends had reduced how often they invited the Veteran for social outings.

Accordingly, the Board affords the Veteran the benefit of reasonable doubt, and finds her PTSD manifested in what more nearly approximated total social impairment. Although the VA examination report indicates the Veteran reported a decline in her social functioning over the year prior to the March 6, 2017 VA examination, the Board finds the Veteran’s VA treatment records in the year prior to the VA examination do not reflect similar reports to indicate total impairment of social functioning. Accordingly, the Board finds the date of the VA examination, March 6, 2017, is the date it became factually ascertainable that her PTSD symptoms have manifested in total social impairment.

Therefore, the Board has considered the Veteran’s claim, and the lay and medical evidence of record, and concludes that based upon the totality of the evidence of record, the Veteran’s level of social and occupational impairment due to the symptoms of her service-connected PTSD warrants a disability rating of 100 percent from March 6, 2017, as total occupational and social impairment has been shown. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, entitlement to a disability rating of 100 percent for PTSD from March 6, 2017 is granted.

TDIU

Legal Criteria

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. 38 C.F.R. § 4.16. A finding of total disability is appropriate “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)(1), 4.15.

“Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a).

In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

A total disability rating for compensation 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 as a result of service-connected disabilities, provided that, if there is only one such disability, this disability 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 the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a).

Analysis

The Veteran is currently service connected for PTSD, rated as 70 percent and then 100 percent disabling per this decision. Accordingly, the Veteran meets the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a).

The Veteran contends she is unable to secure and follow a substantially gainful occupation due to her service-connected PTSD. See July 2017 hearing testimony; March 2017 VA examination report.

As discussed above, the Board has found the Veteran’s PTSD symptoms impaired her ability to establish and maintain effective relationships with co-workers and clients, and adapt to stressful circumstances including a work-like setting, including her work in a barbershop triggering and exacerbating her PTSD. Further, the Board affords the Veteran the benefit of reasonable doubt, and finds the Veteran’s work as a hairdresser in barber shops during the appeal period did not equate to substantially gainful employment. As discussed above, the totality of the evidence of record indicates the Veteran was unable to work hours that approximated a full-time schedule without becoming overwhelmed and exacerbating her PTSD symptoms, and therefore had to reduce her schedule back to part time, and could not work multiple days in a row. The Veteran also reported consistently coming into work late because of her PTSD symptoms and side effects of her medication, and having to take multiple days off per month due to depression and PTSD symptoms. See also July 2017 Veteran affidavit; July 2017 hearing testimony.

The Veteran’s VA vocational rehabilitation records indicate she attempted to find a career path other than as a hairstylist in barber shops because it exacerbated her PTSD. The Veteran has a high school diploma, and at first attempted to complete an associate’s degree through a community college. However, a July 2014 VA vocational rehabilitation counseling record indicates the Veteran reported an increase in her panic attacks and feeling overwhelmed by the number of classes necessary to complete the associate’s degree program. Instead, in May 2015 she completed a certificate program for medical office assistance. However, the Veteran’s vocational rehabilitation records indicate the Veteran was unable to find a job in that field, indicating she was not competitive because many others who competed for such positions had college degrees. The Veteran also reported continuing problems due to her PTSD. See January 2016 employment coordinator memorandum. The Veteran did not continue with vocational rehabilitation services, and they were discontinued. See February 2017 special report of training.

During the March 2017 VA examination, the Veteran reported that during her schooling in 2015, her problems with concentration due to her PTSD affected her ability to complete reading and writing assignments, and impaired her ability to learn from professors’ course lectures. The Veteran reported her PTSD also impaired her ability to attend lectures and study at the library due to panic attacks when around large groups of people.

During the March 2017 VA examination, the Veteran also reported that three weeks prior to the examination her supervisor/owner of the salon where she worked stated that it would be better if the Veteran was not employed as a hairdresser, because the Veteran was displaying anger when interacting with co-workers and customers, and was having difficulties with concentration and panic attacks at work. The Veteran reported people at work would avoid interacting with her due to her irritability and anger, and that she continued to have difficulties with the many male customers, and would attend work late, call out sick, and leave early.

In a July 2017 mental assessment of ability to do work-related activities, psychologist J.A. opined the Veteran has marked limitations in her ability to follow work rules, relate to co-workers, deal with the public, interact with supervisors, and deal with work stresses due to her PTSD. He opined the Veteran has extreme difficulty behaving in an emotionally stable manner, and marked difficulty with relating predictably in social situations and her ability to complete a normal work day and week without interruptions from her psychiatric symptoms. Finally, J.A. also indicated the Veteran has moderate limitations in her ability to use judgment and maintain attention/concentration, and to understand, remember, and carry out complex job instructions.

Accordingly, the Board finds that the Veteran’s service-connected PTSD prevents her from obtaining and maintaining substantially gainful employment as a hairstylist due to the severity of her symptoms such as anger, irritability, social withdrawal, difficulties with male co-workers and clients, depression, and panic attacks. The totality of the evidence of record also indicates the severity of the Veteran’s PTSD symptoms prevents her from obtaining and maintaining other substantially gainful employment, as the Veteran’s vocational rehabilitation records indicate she is not competitive for an administrative job without a college degree, her reports regarding her difficulties in school indicate her PTSD symptoms would likely impair her ability to complete a college degree, and J.A.’s July 2017 opinions indicate the Veteran’s PTSD results in many moderate-to-extreme limitations in work settings. Accordingly, the Board affords the Veteran the benefit of reasonable doubt, and finds her service-connected PTSD renders her unable to secure and follow a substantially gainful occupation.

The Board notes that in the July 2017 independent mental residual functional capacity case review, J.A. opined a whole person disability due to PTSD should date back to the time the Veteran was discharged from active duty service. However, as the claim for a TDIU has been raised as part and parcel of the claim for increased initial disability ratings for PTSD under Rice, the Board cannot consider entitlement to a TDIU prior to the date of service connection for PTSD in February 2005. See 38 C.F.R. § 3.400.

The Board finds that the totality of the evidence of record indicates the functional impairments caused by the Veteran’s service-connected PTSD render her unable to secure or follow a substantially gainful occupation. Accordingly, based on the evidence of record and resolving reasonable doubt in the Veteran’s favor, the Board finds the functional effects of her service-connected PTSD have rendered her unable to secure and follow a substantially gainful occupation.

Finally, special monthly compensation (SMC) at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley v. Peake, 22 Vet. App. 280 (2008)).

Here, although the Veteran has been awarded entitlement to TDIU based solely on her service-connected PTSD, at this time she does not receive schedular disability ratings for other conditions. Therefore, the Board finds the issue of entitlement to SMC at the housebound rate has not been raised. Accordingly, the Board finds the Veteran’s benefits have been maximized as of March 6, 2017, the effective date for the grant of a 100 percent disability rating for PTSD, and entitlement to a TDIU on or after March 6, 2017 is rendered moot. The Board further finds that entitlement to a TDIU throughout the appeal period prior to March 6, 2017 is warranted.

ORDER

Entitlement to an initial disability rating of 70 percent for PTSD prior to March 2, 2006 is granted.

Entitlement to a disability rating of 70 percent for PTSD from May 1, 2006 to May 16, 2006 is granted.

Entitlement to a disability rating of 70 percent for PTSD from September 1, 2006 to September 4, 2008 is granted.

Entitlement to a disability rating of 70 percent for PTSD from November 1, 2008 to September 12, 2011 is granted.

Entitlement to a disability rating of 70 percent for PTSD from September 13, 2011 to March 5, 2017 is granted.

Entitlement to a disability rating of 100 percent for PTSD from March 6, 2017 is granted.

Entitlement to a TDIU prior to March 6, 2017 is granted.

____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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