Citation Nr: 1805739 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-30 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1968 to January 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for PTSD and assigned an initial rating of 10 percent, effective July 21, 2005. In an October 2012 rating decision, the Veteran's PTSD rating was increased to 30 percent, effective July 21, 2005. In October 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire appeal period, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial 70 percent rating, but no higher, for PTSD are met since July 21, 2005. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veteran's Contentions The Veteran maintains that a higher rating is warranted for his PTSD based on his symptomatology such as flashbacks, triggers, anxiety, social isolation, difficulty dealing with authority figures, drug and alcohol abuse, suicidal thoughts, short term memory loss, suspiciousness, exaggerated startle response, obsessional rituals, irritability, and outbursts of anger. See February 2009 Board Hearing Transcript at 3, 7-8 and October 2017 Board Hearing Transcript at 9-12. II. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Fenderson, 12 Vet. App. 119. 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 Secretary, VA, determined DSM-5 applies to claims certified to the Board on and after August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14308 (March 19, 2015). Here, the RO first certified the Veteran's appeal to the Board in January 2017; thus, this claim is governed by the DSM-5. Notably, the DSM-5 does not employ Global Assessment of Functioning (GAF) scores to identify levels of disability. III. Rating Criteria Under 38 C.F.R. § 4.130, DC 9411, a 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where the disorder is manifested by 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 and maintaining effective work and social relationships. A 70 percent rating is warranted where the disorder is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where the disorder is manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130; DC 9411. The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). IV. Analysis As noted above, the Veteran is currently in receipt of a 30 percent rating from July 21, 2005, for his service-connected PTSD. The appeal period is from July 21, 2005, the date of the award of service connection for his PTSD. The Board finds that a 70 percent rating, but no higher, is warranted from July 21, 2005, based on occupational and social impairment, with deficiencies in most areas, due to such symptoms as suicidal and homicidal ideation; isolative behaviors; impaired impulse control (such as unprovoked irritability with periods of violence); hypervigilance; exaggerated startle response; difficulty in adapting to stressful circumstances (including work or a work-like setting); and difficulty establishing and maintaining effective relationships. Specifically, VA treatment records dated after his initial service connection claim for PTSD document the Veteran's increased irritability with others, increased arousal, suicidal thoughts beginning in 2001, homicidal thoughts, depressed mood, violent outbursts, isolative behaviors, suspiciousness, and exaggerated startle response. He reported fleeting thoughts of suicide and homicide. See December 2005, March 2007, June 2007, March 2008, November 2008, and September 2009 VA treatment records. The September 2009 VA examiner notes the Veteran's angry and erratic behavior, his report of past homicidal ideation, and his lack of socialization. The March 2012 VA examiner notes the Veteran's markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affect, difficulty staying asleep, and difficulty concentrating. He reported anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and passive suicidal and homicidal thoughts. The January 2016 VA examiner noted daily suicidal ideation, social isolation, persistent exaggerated beliefs or expectations about oneself, others, or the world, persistent inability to experience positive emotions, hypervigilance, depressed mood, and suspiciousness. During the examination, the Veteran reported diminished interest in activities and isolative behaviors. During his October 2017 Board hearing, the Veteran competently and credibly reported wanting to kill himself all the time and keeping a loaded rifle near him. See October 2017 Board Hearing Transcript at 9. Additionally, he reported short term memory loss, exaggerated startle response, suspiciousness, obsessional rituals, irritability, anger, anxiety, problems with authority, and not liking like crowds. Id. at 4, 9-12. Throughout the appeal period, the Veteran has reported fleeting suicidal and homicidal ideation, which recently has progressed to daily suicidal ideation. The Court of Appeals for Veterans Claims (Court) has recently held that "...the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Thus, given the medical and lay evidence of record, the Veteran's psychiatric symptoms including his suicidal and homicidal ideation, obsessional rituals, isolative behaviors, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances (including work or a work-like setting), have resulted in occupational and social impairment with deficiencies in most areas supporting a 70 percent rating beginning July 21, 2005. The Veteran's symptoms, however, do not approximate a rating of 100 percent as they are not of such a severity, frequency or duration to result in total occupational and social impairment. In this regard, while there is a persistent danger of hurting self or others, there is no evidence in the record of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; 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; or any other symptoms of a similar severity, frequency or duration. Thus, his symptoms and disability picture more nearly approximate the criteria of a 70 percent rating. 38 C.F.R. § 4.7. ORDER From July 21, 2005, an initial rating of 70 percent, but no higher, for PTSD is granted. REMAND The Veteran asserted during his February 2009 and October 2017 Board hearings that he is unable to work due to symptoms of his service-connected PTSD. Therefore, the issue of entitlement to a TDIU has been raised by the record and is within the jurisdiction of the Board. Rice v. Shinseki, 22 Vet. App. 447, 452. Thus, on remand the Veteran's TDIU claim should be developed. Updated VA treatment records should also be secured. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, as well as appropriate notice of how to substantiate a claim for a TDIU. 2. Obtain all outstanding VA treatment records. 3. Then, after taking any additional development deemed necessary, readjudicate the Veteran's claim for entitlement to a TDIU. The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs