Citation Nr: 18145102 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-32 481 DATE: October 26, 2018 ORDER Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted for the entire appeal period. REMANDED Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD are met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1966 to May 1969, including service in the Republic of Vietnam for which he was awarded the Combat Infantry Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s August 2013 notice of disagreement (NOD) was timely to this initial rating action. In February 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The Board has bifurcated the increased rating claim as reflected on the title page, as a favorable decision is warranted on the evidence currently of record. 1. Entitlement to an initial 70 percent rating for PTSD is granted. The Veteran seeks a 70 percent rating for his PTSD for the entire appeal period. See August 2013 NOD. 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 DCs 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). 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. 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. 38 C.F.R. § 4.126(a). The Veteran’s PTSD is rated pursuant to DC 9411. 38 C.F.R. § 4.130; DC 9411. Under DC 9411, 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 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 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. The Veteran is currently in receipt of a 50 percent rating from the effective date of service connection, or January 24, 2012, for his service-connected PTSD. To the extent the Veteran has also been diagnosed with major depressive disorder (see January 2013 VA treatment record) and alcohol use disorder (February 2016 VA examination report), the record does not adequate distinguish symptomatology of these disabilities from his PTSD; thus, all psychiatric symptomatology will be considered in rating his disability. The Board finds that a 70 percent rating is warranted from January 24, 2012, based on occupational and social impairment with deficiencies in most areas due to symptoms such as: suicidal and homicidal ideation, obsessional rituals which interfere with routine activities, isolative behaviors, hypervigilance, depressed mood, suspiciousness, chronic sleep impairment, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), and difficulty establishing and maintaining effective relationships. Specifically, VA treatment records and VA examination reports dated throughout the appeal period document the Veteran’s increased irritability with others, passive suicidal ideation, severe depression and anxiety, isolative behaviors (withdrawing from therapy and other people), avoidance behaviors (avoiding groups and previous hobbies), difficulty in adapting to stressful circumstances and difficulty establishing and maintaining effective relationships (taking care of things at work, home, and getting along with other people is difficult), emotional distress when exposed to reminders of combat, and hypervigilance. See August 2012, September 2012, December 2012, January 2013, October 2016, and November 2016 VA treatment records; August 2012 and February 2016 VA examination reports; June 2016 assessment of B.M.B., Psy.D. Additionally, an August 2013 lay statement from the Veteran’s spouse competent and credibly reports her observations of the Veteran’s nervousness, unprovoked incidents of violence (impaired impulse control), obsessional rituals that interfere with sleep, inability to concentrate/focus, difficulty in adapting to stressful circumstances, lack of close friends, and isolative behaviors. In an August 2013 statement, the Veteran endorsed panic attacks every night and obsessional rituals interfering with routine activities (cannot sit in the same place in restaurants and church on consecutive visits). See August 2013 “Notice of Disagreement” (NOD). During the February 2017 hearing, the Veteran and his spouse testified about the Veteran’s irregular behaviors which can be categorized as obsessional rituals that interfere with routine activities (cannot have lights on in the house once it is dark outside or tolerate having cars traveling behind him on the roadway), passive suicidal ideation, mild memory loss, and occasional neglect of his personal appearance and hygiene. Throughout the appeal period, the Veteran has consistently reported suicidal ideation. The Court of Appeals for Veterans Claims 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). Given the Veteran’s passive suicidal ideation throughout the appeal period, along with evidence of mood deficiencies, obsessional rituals, isolative behaviors, mild memory loss, occasional neglect of personal appearance and hygiene; difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances (including work or a work-like setting), his PTSD has resulted in occupational and social impairment with deficiencies in most areas (judgment, thinking, and mood) supporting a 70 percent rating from January 24, 2012. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. In a February 2017 statement, VA psychologist T.K.K. noted that the Veteran has been actively involved in psychological assessment and treatment services in the Ann Arbor PTSD clinic since November 2016. These relevant records must be secured on remand. 3. Entitlement to a TDIU is remanded. A June 2016 privat psychiatric assessment notes that the Veteran’s psychiatric disorder negatively impacts and impairs his ability to maintain gainful employment. Thus, the issue of entitlement to a TDIU has been reasonably raised by the record and must be developed on remand. The matter is REMANDED for the following action: 1. Send the Veteran a Veterans Claims Assistance Act (VCAA) notice advising him of the requirements for substantiating a TDIU. 2. Ask the Veteran to complete a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) to provide relevant information concerning his work and educational history. 3. Associate with the claims file any outstanding VA treatment records dated since October 2016, including all records from the Ann Arbor PTSD clinic dated since November 2016. 4. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 5. Ask the Veteran to complete release forms with the names and addresses of all employers or potential employers post service that have information regarding his service-connected disabilities. After securing the appropriate release forms, any relevant records identified should be requested. If any requested records cannot be obtained, the Veteran should be notified of such. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.Rouse, Associate Counsel