Citation Nr: 18143057 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 12-02 496 DATE: October 18, 2018 ORDER Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected PTSD, prior to June 6, 2016 is remanded. FINDING OF FACT The Veteran’s service-connected PTSD has been manifested by symptomatology demonstrating occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for service-connected PTSD have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to May 1970, to include service in the Republic of Vietnam. The Veteran was awarded a Purple Heart and Combat Infantryman Badge, among other decorations. In June 2013, the Veteran testified during a video conference hearing. A transcript of the hearing is of record. The Veterans Law Judge who conducted the June 2013 hearing is no longer available to decide the appeal. The Veteran was offered another hearing, but in April 2017 he declined an additional hearing. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The Veteran was assigned a temporary total evaluation for PTSD after it was shown he was hospitalized from March 22, 2012 through May 31, 2012 and March 4, 2013 through April 30, 2013. As those periods represent a full grant of the benefits sought, they are not under consideration for an increased rating. In an August 2017 decision, the Board denied the claim for a rating in excess of 50 percent for PTSD and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Joint Motion for Partial Remand (Joint Motion), the parties agreed that the Board failed to set forth adequate reasons or bases and properly consider the Veteran’s psychiatric symptoms of suicidal ideation and symptoms associated with “difficulty in adapting to stressful circumstances” and “impaired impulse control,” symptoms demonstrative of a 70 percent rating; and that the Board failed to address entitlement to a TDIU prior to June 6, 2016 as reasonably raised by the record. In a May 2018 Order the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. In January 2014 the Board remanded the issue of entitlement to a rating in excess of 50 percent for PTSD for additional development and a new VA examination. The issues have now been returned to the Board for appellate review. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s disability is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 50 percent rating is warranted when there is 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When there is an approximate balance of positive and negative evidence regarding the degree of disability, the benefit of the doubt shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran has been in receipt of a 50 percent rating for PTSD since August 31, 2010, the date VA received the Veteran’s claim for compensation. In September 2010 correspondence, the Veteran’s spouse stated that the Veteran had experienced feelings of alienation and depression after his time in service. She described how his symptoms developed over the course of the many years of their marriage and shared personal stories of how the Veteran’s depression and anxiety affected his day-to-day life. She noted that despite his symptoms he had several personal accomplishments, including running as a candidate for positions in public office. In October 2010 VA treatment records, the Veteran reported mild depression and anxiety. The examiner noted that the Veteran’s judgement was adequate and that the Veteran denied homicidal or suicidal ideations. The Veteran underwent VA examination in March 2011. The examiner described the severity of the Veteran’s psychiatric symptoms as severe. He reported that the Veteran indicated his symptoms affect total daily functioning which results in a history of problems keeping jobs and an ongoing pattern of social isolation. He reported a history of violent behavior described as many physical confrontations including with customers who owed him money. The Veteran reported his unemployment was primarily due to his PTSD. The Veteran stated that he was experiencing intrusive thoughts, flashbacks, hypervigilance, irritability, and sleep problems. The examiner noted that the Veteran did not indicate a history of suicide attempts and did not have difficulty performing activities of daily living. Orientation was within normal limits; appearance, hygiene and behavior appropriate; the Veteran’s affect and mood showed anxiety and his speech was within normal limits. There were no delusions or hallucinations. The examiner reported the Veteran has obsessive-compulsive behavior but not severe enough to interfere with routine activities. The examiner explained that the Veteran’s symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. He reported the Veteran experiences symptoms of anxiety, suspiciousness, panic attacks weekly or less often, and chronic sleep impairment. He reported that the Veteran has difficulty establishing and maintaining effective work/school and social relationships because of his temper. He reported the Veteran has an intermittent inability to perform recreation or leisure pursuits and occasional interference with physical health due to stress. VA treatment records reflect that the Veteran was admitted to a psychological rehabilitation program in March 2012 and 2013 and was discharged from those programs in May 2012 and 2013 respectively. During this period, including his period in rehabilitation, the Veteran reported depression, anxiety, irritability, and low motivation. In August 2012 VA treatment records, the psychologist noted that the Veteran was “mildly depressed with underlying anxiety.” The examiner noted that the Veteran was oriented to person, place, time, and situation and denied suicidal or homicidal ideations. In April 2013, the Veteran was discharged from rehabilitation. At that time, he reported no psychotic or manic symptoms, but stated that he had continuing anxiety and depressive symptoms. During the June 2013 Board hearing the Veteran testified that he had been hospitalized twice for his PTSD, referring to his rehabilitation programs. He testified that he regularly attended group therapy during and after his rehabilitation. The Veteran reported that he was depressed, anxious, and often isolated. He reported that he occasionally worked for charity, but that he did not often interact with people. He reported that his PTSD had worsened since his last examination in March 2011. He testified that since that time he had begun to cry more often, didn’t go to church, and was more isolated. During the March 2014 VA examination the examiner reported that the Veteran’s PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran reported that his marriage with his wife was “fair.” The Veteran denied any personal friends, but stated that he was involved in several social clubs and groups, including several volunteer and charity programs. He reported that he could complete most of his activities of daily living by himself. The Veteran endorsed symptoms of depression; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long- term memory; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and impaired impulse control such as unprovoked irritability with periods of violence. The Veteran reported that he assaulted an individual one-year prior. He reported social withdrawal, crying spells, and feelings of worthlessness and difficulty concentrating. The examiner noted that the Veteran had “fleeting thoughts of suicide, but denied plans, means, or intent.” In April 2014, the Veteran wrote that his PTSD symptoms had made it difficult for him in the work place, noting that his abrasive attitude often caused problems. In May 2015, the Veteran stated that his PTSD had worsened after participating in a program that was intended to help alleviate his PTSD symptoms by allowing him to return to Vietnam. In June 2016, the Veteran’s wife described how the Veteran’s PTSD had affected his ability to maintain full time employment. She reported that when the Veteran’s “emotions are intact, he works efficiently and happily and gets along with everyone.” During an October 2016 VA examination the examiner noted that the Veteran suffered from PTSD that was “often co-morbid with alcohol use disorder.” The examiner explained the Veteran’s psychiatric symptoms were manifested by occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran had been married for forty-five years and that he often listened to music for personal enjoyment. Socially, the Veteran described himself as a “loner” noting that he did not want to make friends. The Veteran reported that he worked 16 to 18 different jobs over the years before retiring. The examiner noted that the Veteran had recurrent, involuntary, and intrusive distressing memories of traumatic events. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting, and suicidal ideation. The Veteran described himself as “suicidal, to a point.” The examiner noted that he described experiencing only vague and transient ideation, much of this brought on by health issues. The examiner reported that the Veteran should be considered an increased but not current imminent risk. A rating in excess of 50 percent is not warranted when looking at the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. For example, VA examiners reported symptoms of depression; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long- term memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting; impaired impulse control; and suicidal ideation. The Veteran’s level of impairment has not been described as more than occupation and social impairment with reduced reliability and productivity. While the March 2011 examiner reported that the Veteran has some obsessive-compulsive behavior, the Veteran did not display or report problems with obsessional rituals which interfere with routine activities. The Veteran’s speech has not been intermittently illogical, obscure, or irrelevant; he has not demonstrated near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; spatial disorientation; or, neglect of personal appearance and hygiene. In fact, the Veteran was presentable at his examinations and was able to appropriately engage with the examiners. While he had some depression, there is no indication that this affected his ability to function independently, appropriately and effectively, evidenced by his ability to volunteer at social functions. VA examiners reported that the Veteran has difficulty in adapting to stressful circumstances including work or a work like setting, and impaired impulse control that included violence, and the Veteran did experience some suicidal ideation. With regard to suicidal ideation, “[s]uicidal ideation appears only in the 70 percent evaluation criteria and [t]here are no analogues at the lower evaluation levels.” Also, “[b]oth passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death.” Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017) (precedential panel decision). Evidence of more than thought or thoughts of ending one’s life to establish the symptom of suicidal ideation, is not required. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm in order to establish the criteria of suicidal ideation. “[T]he presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas.” Bankhead, No. 15-2404, slip op. at 11. Also, it may not be found that a claimant does not have suicidal ideation merely because he has not been hospitalized or treated on an inpatient basis, as this would impose a higher standard than the criteria in the Diagnostic Codes for mental disorders. Bankhead, slip op. at 12. However, in evaluating symptoms and signs to determine their effect on the level of occupational and social impairment in order to arrive at an appropriate disability rating, the Board will look to their severity, frequency and duration; consider their impact as a whole; and make a quantitative assessment accordingly. Bankhead at 26-27. As was noted in the October 2016 VA examination, the Veteran had only vague and transient ideation, much of which was brought on by health issues, the Veteran was not a current imminent risk for suicide. When taking into account all of the symptomatology as described in the medical and lay evidence, including suicidal ideation, social and occupational impairment was to a lesser degree than impairment in most areas. Thus, a rating in excess of 50 percent is not warranted. Id. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a higher rating, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND As previously noted, a claim for entitlement to a TDIU prior to June 6, 2016 has been raised by the record. As discussed in the Joint Motion, the Veteran’s wife reported in June 2016 the Veteran’s PTSD made it difficult to maintain employment for extended periods of time. In his June 2016 Application for TDIU the Veteran indicated that up until 2008 all jobs that he had were lost due to PTSD and he has been self-employed since. The record reveals that prior to June 6, 2016 the Veteran reported he had difficulty maintaining employment due to his PTSD. The matter is REMANDED for the following action: The issue of entitlement to a TDIU prior to June 6, 2016 must be adjudicated. If the benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel