Citation Nr: 18146941 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-31 226 DATE: November 2, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depression and cannabis abuse is denied. REMAND Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s service-connected posttraumatic stress disorder with depression and cannabis abuse has been manifested by symptoms productive of functional impairment comparable to no worse than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Army from September 1989 to February 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board notes that the Veteran filed a claim for TDIU resulting from his service-connected PTSD in January 2011. The RO deferred a decision on entitlement to a TDIU, but never issued a rating decision adjudicating the claim. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In certain instances, bifurcation and separate adjudication of an increased rating claim and a TDIU claim is permitted. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that “it was not inappropriate” for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-ratings claim). Moreover, in Locklear v. Shinseki, 24 Vet. App. 311 (2011), the Court acknowledged the Rice decision and held that it is permissive for VA to address a claim for a TDIU independently of other claims, including increased rating and service connection claims. In this case, the Veteran applied for TDIU in January 2011, during his appeal of the initial rating for PTSD. Thus, the claim for TDIU is part and parcel to the increased rating claim, and TDIU is properly included in the list of issues before the Board. However, the RO never adjudicated the issue. The Board finds that bifurcation is permissible under the circumstances of this appeal, and the issue of TDIU must be remanded to afford the Veteran required due process. See Manlincon v. West, 12 Vet. App. 238 (1999); Locklear, 24 Vet. App. at 317-18 (noting “the criteria for entitlement to TDIU benefits differs from schedular rating entitlement”); Rice, 22 Vet. App. at 452. Therefore, the issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below. Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015), Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, a disability rating may require re-evaluation in accordance with changes in a veteran’s condition. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Specific Rating Criteria for Mental Disorders The Veteran’s service-connected PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9411. The VA General Rating Formula for Mental Disorders reads in pertinent part as follows: 50 percent - 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; and difficulty in establishing and maintaining effective work and social relationships. 70 percent - 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. 100 percent rating - 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). Accordingly, consideration is given to all symptoms of the Veteran’s disability that affect the level of occupational and social impairment. Increased Rating – PTSD with Depression and Cannabis Abuse The Veteran seeks a higher initial rating for his service-connected PTSD, currently rated at 50 percent disabling. The December 2009 rating decision on appeal granted service-connection for PTSD, and assigned a 30 percent initial disability rating effective October 21, 2008. During the pendency of the appeal, a July 2015 rating decision assigned a 50 percent initial rating, effective October 21, 2008. As the maximum benefit has not been granted, the appeal remains before the Board. The rating period on appeal is from October 21, 2008, the effective date of the award of service connection for the disability at issue. 38 C.F.R. § 3.400. The Veteran had a VA mental health evaluation in September 2008. The Veteran reported recurring nightmares of injury sustained from a fall while on active duty service. The Veteran stated that he fell from a 45-foot cliff in full gear, and lost consciousness. He reported experiencing nightmares, inability to tolerate crowds, feelings of detachment, difficulty sleeping, angry outbursts, hypervigilance, heavy drinking while in the army, and currently using marijuana 3-4 times per week. The examiner diagnosed PTSD and depression. The Veteran reported having a good relationship with his wife and stepdaughter, and two close friends. The Veteran was unemployed, but attending vocational rehabilitation. His educational history was a high school diploma, with some college, but no degree. An October 2008 VA psychiatric care note indicated that the Veteran presented with complaints of irritability, anger, difficulty with crowds, anxiety without panic attacks, nightmares and insomnia. He was going to school full time, but was worried about working because he thought he could not handle people. The Veteran was cooperative, casually dressed, restless and anxious, spoke in a rapid manner without flight of ideas, and had a goal-directed thought process. He did not exhibit suicidal or homicidal ideation, or psychotic symptoms. The Veteran had a VA examination in March 2009. The examiner remarked that the Veteran arrived in casual attire, appeared well-groomed, and was noticeably anxious and restless throughout the interview. The Veteran was a fair historian, who demonstrated symptoms of anxiety and pressured speech secondary to anxiety. The Veteran’s speech volume was normal, with concrete thought processes appropriately directed to topic. There was no indication of psychotic symptoms, delusions, or loosened associations. The Veteran’s affect was guarded and rigid. He reported studying at a community college, having a 3.9 grade point average, and expecting to graduate with an associate degree in 2009. The Veteran was currently unemployed, having last worked as a security guard. He alleged that he was terminated for “an incident” attributable to his PTSD. The Veteran reported being married since 2000, with two prior marriages. The Veteran reported having financial stress due to accumulated debt, near daily intrusive thoughts about his in-service fall, moderately severe sleep disturbance, abstinence from alcohol, and curtailed marijuana usage. The Veteran reported difficulty with authority figures, struggling with social interaction, having limited friends, but overall functioning fairly well as a husband and father. The Veteran had a VA examination in November 2009. The Veteran reported anger, anxiety, and depression since his in-service accident, having fewer friends, and losing his job in 2007. He indicated good relationships with his sister and children, and a very good relationship with his wife. The Veteran displayed: orientation within normal limits; appropriate appearance and hygiene; communication, speech, concentration, and memory within normal limits; and normal abstract thinking. The Veteran did not indicate panic attacks, impaired judgment, suspiciousness, abnormal though processes, difficulty understanding directions, suicidal or homicidal ideation, or hallucinations (or any history thereof). The Veteran reported sleep impairment, and persistent irritability with angry outbursts. The examiner described the Veteran’s functional impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactorily with routine behavior, self-care and conversation. The Veteran had a VA examination in June 2015. The examiner reviewed the claims file and interviewed the Veteran. The Veteran reported working in information technology since 2014, and having overall good relationships with supervisors and coworkers. The Veteran displayed: orientation to time, place and purpose; appropriate hygiene and grooming; regular speech rate and rhythm; organized thoughts; appropriate thought content; moderately depressed mood; and moderately restricted affect. The Veteran did not indicate psychotic symptoms, delusions, loosened associations, suicidal or homicidal ideation. The examiner noted the following symptoms: depressed mood, anxiety, chronic sleep impairment, flattened affect, 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 worklike setting. He described the Veteran’s overall level of functional impairment as occupational and social impairment with reduced reliability and productivity. The Veteran had another VA examination in January 2017. The examiner reviewed the claims file and interviewed the Veteran. The Veteran displayed appropriate orientation, mild dysphoric mood, and congruent affect. There was no indication of disturbances of thought content, abnormal thought process, or problems associated with perception, cognition, speech, or appetite. The examiner noted the following symptoms: depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, 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 worklike setting, and suicidal ideation. The Veteran reported a history of “fleeting” suicide ideation, but denied past, recent, or current ideation/plans related to parasuicidal and aggressive/homicidal behaviors. The Veteran had positive relationships with his parents, siblings, spouse, and children, and reported earning two associate degrees. The examiner noted that the Veteran’s occupational history included security work and computer network administration. The examiner described the Veteran’s overall level of functional impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactorily with routine behavior, self-care and conversation. In November 2017, VA received records of the Veteran’s participation in VA vocational rehabilitation. A closure report from August 2012 documented that the Veteran had completed his training and found work as a computer technician since May 2012. The veteran reported being very satisfied with his position. An August 2012 letter congratulated the Veteran on completing rehabilitation, based on maintaining employment as a computer technician for at least 60 days. After considering the evidence of record, the Board finds that the Veteran’s PTSD manifestations are productive of functional impairment more comparable to occupational and social impairment with reduced reliability and productivity, and do not rise to the level of severity contemplated by a higher rating. The medical evidence of record does not suggest that the Veteran displays symptomatology consistent with functional impairment more approximating a higher rating. For example, the Veteran consistently displayed depressed mood, anxiety, chronic sleep impairment, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. These symptoms are contemplated by a 50 percent rating. 38 C.F.R. § 4.130. The duration, frequency, and severity of the Veteran’s symptoms was mild and transient. 38 C.F.R. § 4.126. The Veteran did not display obsessional rituals, illogical, obscure, or irrelevant speech, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The Veteran displayed difficulty in adapting to stressful circumstances, including work or a worklike setting, but nevertheless, the totality of his symptomatic picture is more consistent with a 50 percent rating. Although the Veteran reported suicidal ideation at the most recent VA examination, the examiner described such reports as “fleeting” and noted that the Veteran denied current ideation/plans related to parasuicidal behaviors. Such symptomatology best approximates a 50 percent rating. See id. The Veteran reported working as a computer programmer in 2012, and enjoying his position. He told the July 2015 VA examiner that he worked in information technology and had good relationships with his supervisor and coworkers. Socially, the Veteran reported doing “fairly well” as a husband and father. He described good relationships with his wife, children, siblings, parents, and supportive friends. He did well in school, earning at least one associate degree and maintaining a 3.9 grade point average. Such evidence does not suggest occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. §§ 4.126, 4.130. The preponderance of the evidence is also against entitlement to a 100 percent disability rating. The evidence of record does not demonstrate total occupational and social impairment due to his service-connected PTSD. The Veteran’s disability did not manifest in symptoms productive of functional impairment comparable to such a level of impairment. He was able to work, despite manifestations of the disability at issue, and reported good relationships with his coworkers and being satisfied with his employment. He reported positive relationships with his family and supportive friends. As the record does not reflect total occupational and social impairment, a 100 percent disability rating is not warranted. 38 C.F.R. § 4.130. The Board finds that the criteria for a higher initial rating for the Veteran’s PTSD have not been met at any time during the rating period. The preponderance of the evidence is against the claim, the benefit of the doubt does not apply, and the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND Remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim. In a July 2015 rating decision, the RO deferred the issue of entitlement to a TDIU. However, the RO never adjudicated the issue. Therefore, this issue must be remanded to the RO for adjudication. See generally 38 C.F.R. § 19.9 (a); Manlincon v. West, 12 Vet. App. 238 (1999). This matter is REMANDED for the following action: After undertaking all necessary development, adjudicate the issue of entitlement to TDIU. If the benefit sought is not granted, issue a supplemental statement of the case to the Veteran and his representative, and afford the appropriate period to respond. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel