Citation Nr: 18159368 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 13-26 631 DATE: December 19, 2018 ORDER Entitlement to a rating of 50 percent for posttraumatic stress disorder (PTSD) prior to May 22, 2012 is granted. Entitlement to a rating of 70 percent after May 22, 2012, for PTSD is granted. Entitlement to a total disability rating due to individual unemployability is denied. FINDINGS OF FACT 1. Prior to May 22, 2012, the Veteran’s PTSD symptoms were productive of no more than occupational and social impairment with reduced reliability and productivity. 2. After May 22, 2012, the Veteran’s PTSD symptoms were productive of no more than occupational and social impairment with deficiencies in most areas. 3. By a June 15, 2016 letter, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940; more than 2 years have lapsed since the request, and he has not submitted the requested evidence and information. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no more have been met prior to May 22, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a disability rating of 70 percent, but no more have been met after May 22, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, DC 9411. 3. By failing to submit requested information and/or forms for critical evidence needed to properly adjudicate his claim of TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 5107, 7105(d)(5); 38 C.F.R. § 3.158(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1969 to January 1972 with service in Vietnam from December 1969 to July 1971. The Veteran received the Bronze Star Medal with “V” device. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded in August 2015 for additional development. PTSD The Veteran seeks a higher rating for his service-connected PTSD. As of March 31, 2010, he was awarded a 30 percent rating for PTSD, which was increased to 50 percent disabling effective February 5, 2016. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). The rating criteria includes a non-exhaustive list of symptoms, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Bankhead, 29 Vet. App. at 18 (quoting Vazquez-Claudio, 713 F.3d at 116-17) (quotations omitted). Thus, a veteran may qualify for a given disability rating by demonstrating that he or she suffers from the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms caused the level of occupational and social impairment associated with a particular disability evaluation. Bankhead, 29 Vet. App. at 18; Vazquez-Claudio, 713 F.3d at 116-17 (quotations omitted). In sum, “VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Bankhead, 29 Vet. App. at 22 (internal citations omitted). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board finds that for the period prior to May 22, 2012, a rating of no more than 50 percent is warranted for PTSD. A 50 percent rating will be assigned for PTSD which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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. During this period the Veteran's PTSD was productive of symptoms such as flashbacks, suspiciousness, difficulty sleeping, nightmares, hypervigilance, depression, anxiety, obsessive compulsive rituals not affecting routine activities, mild memory impairment, night sweats, anger, sporadic panic attacks. At the August 2010 VA examination, he reported sleep disturbances to include nightmares, isolation, and hypervigilance that was of moderate severity but continuous frequency. He also reported obsessive compulsive behavior of checking the windows in his home every night before bed. The August 2010 examiner opined that this obsessive-compulsive behavior did not interfere with routine activities. In early 2011, the Veteran reported ongoing PTSD symptoms, including thrashing in bed at night. The Board finds that these symptoms and their impairments warrant a 50 percent rating. The Board finds that a 70 percent rating is not warranted for the period prior to May 22, 2012. A 70 percent rating will be assigned for 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; intermittently illogical, obscure, or irrelevant speech; 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); and an inability to establish and maintain effective relationships. Here, the evidence does not show that the Veteran's PTSD symptoms were severe enough to result in occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood) prior to May 2012. There is no evidence that the Veteran was unable to complete tasks. He also reported positive relationships with his wife, although he did note increased irritability after his stepdaughter and her family moved into their home. However, there was no evidence of impaired impulse control (such as unprovoked irritability with periods of violence) or a persistent danger of hurting others. There is no evidence that the Veteran suffered from any deficiencies or impairment in his thinking or thought processes, judgment, spatial orientation, or ability to concentrate prior to May 2012. He exhibited no suicidal ideation, homicidal ideation, obsessional rituals, near continuous panic or depression, spatial disorientation, difficulty in adapting to stressful circumstances, persistent delusions or hallucinations or grossly inappropriate behavior. He was always noted to be well groomed during his VA examinations and medical appointments and was found to be able to perform activities of daily living. Thus, as the evidence of record shows that the Veteran did not exhibit deficiencies in most areas, the Board finds that a rating in excess of 50 percent is not warranted during this period. The Board finds that a 70 percent schedular rating is warranted for the period beginning May 22, 2012. The May 2012 private doctor noted that the Veteran suffered from symptoms including: nightmares (3-4 times per week), daily flashbacks, sporadic panic attacks, sleep disturbances, night sweats, isolation, recent and working memory impairment, anger, sadness, concentration issues, auditory and visual hallucinations (to include hearing his name being called, cars driving up at his home, seeing shadows out the corner of his eye, and hearing footsteps in his home), low energy, decreased interest, crying spells, and irritability. The May 2012 private doctor concluded that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas. The February 2016 VA examiner also noted that the Veteran had intrusive daily thoughts, panic attacks occurring more than once a week, chronic sleep impairment, anxiety, isolation, nightmares and flashbacks 2-3 times weekly, irritability, lost interest in activities, and is triggered by watching television. Considering the evidence regarding severity and frequency of the Veteran symptoms, the resulting impairment more nearly approximates occupational and social impairment with deficiencies in most area. The Board finds that a rating of 100 is not warranted at any point during the appeal period because the Veteran’s PTSD symptoms have not been productive of total occupational and social impairment due to severe symptoms. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The Board finds the Veteran’s symptoms have not resulted in total occupational or social impairment. Although, the Veteran experienced delusions and hallucinations, the evidence of record does not support that they were persistent. Further, there is no evidence supporting a conclusion that the Veteran’s memory loss includes the inability to recall personal facts like his own name or names of close relatives. Although the evidence shows that the Veteran’s ability to engage in an occupation has been compromised, the evidence does not show that the Veteran has suffered from total social impairment during the appeal period. The Board notes the May 2012 private physician opinion that the Veteran is severely compromised in his ability to sustain social relationships. However, the Veteran has been married for 15 years and reports his relationship with his wife is improving, although at times it could be better. See February 2016 VA examination; January 2012 VA treatment record. He also reports that his ability to connect with others has improved in recent years. See January 2012 VA treatment record. This finding is further supported by the August 2013 private examination concluding that the Veteran’s symptoms result in social impairment with deficiencies in most areas. At the February 2016 VA examination, the Veteran noted that he does not have much of a social life but that he does have a close relationship with his daughter. Although he was found to have difficulty in establishing and maintaining effective relationships, the examiner did not find that the Veteran had an inability to establish or maintain relationships. During a December 2016 VA mental health appointment, the Veteran reported being involved with a Vietnam Veterans chapter in the community and receiving strong support from them. The Veteran also identified having relationships with a few family members. Thus, the level of both occupational and social impairment necessary for the assignment of a 100 percent rating for PTSD has not been more nearly approximated during the appeal period. TDIU When evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158 (a). In its August 2015 decision, the Board found that there was insufficient evidence of record concerning the Veteran's TDIU claim and thus remanded the issue of entitlement to a TDIU, in part, for the Veteran to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (Form 21-8940). See August 2015 Board Remand. In a June 2016 notice letter, the RO informed the Veteran that he may be entitled to compensation at the 100 percent rate if he is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. The letter further directed the Veteran that “[i]f you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.” The letter also included a section entitled “What the Evidence Must Show for Total Disability Rating Based on Individual Unemployability” detailing the legal and evidentiary requirements for a TDIU. To date, the Veteran has not submitted a VA Form 21-8940 or comparable statement containing the requested information. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him or her from securing or following a substantially gainful occupation, and the treatment he or she has received for the disability(ies). The veteran is further asked to supply information about his or her employment, including dates when his or her disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. VA Form 21-8940 also requests information regarding the veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his or her last job, and whether the veteran has attempted to obtain employment since he or she became too disabled to work. The critical facts at this stage are clear. The Veteran has not provided the information or VA form necessary for VA to adjudicate a claim of entitlement to a TDIU rating. Although the record contains some information regarding his employment history, the Veteran has not provided all of the information necessary to adjudicate a claim for a TDIU rating. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158 (a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158; Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158 (a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim. As such, the Board finds that entitlement to a TDIU must be denied. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Ijitimehin, Associate Counsel