Citation Nr: 1827014 Decision Date: 05/04/18 Archive Date: 05/14/18 DOCKET NO. 14-37 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating higher than 30 percent prior to May 23, 2013, and 50 percent for the period from May 23, 2013, to August 9, 2016, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to August 10, 2016. ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2001 to February 2005. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta Georgia. In that decision, the RO granted service connection for PTSD and assigned a 30 percent rating, effective January 16, 2013. As will be explained below, the Veteran disagreed with the initial rating. In September 2013, the RO increased the rating for PTSD to a 50 percent, effective May 23, 2013. In July 2017, the RO increased the rating for PTSD to a 70 percent rating, effective August 10, 2016, creating a staged rating as indicated on the title page. In his October 2013 notice of disagreement (NOD), the Veteran disagreed with the September 2013 rating decision, indicating that he should be awarded a higher rating for his PTSD and expressed that a 70 percent rating would satisfy his claim. Thus, the Veteran's October 2013 NOD implicitly disagreed with the initial 30 percent rating assigned, as he expressed disaffection with the 50 percent rating. Furthermore, consistent with the Veteran's contention that he would be satisfied with the 70 percent rating for PTSD, the Board has recharacterized the issue as entitlement to initial higher ratings for PTSD prior to August 10, 2016. See AB v. Brown, 6 Vet. App. 35, 38 (1993). During the pendency of the appeal for an initial higher rating for PTSD, the Veteran filed a formal TDIU claim indicating that he has been unemployed since June 2012, due to his service-connected include PTSD. See Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated May 2013. In a July 2017 rating decision, the RO granted entitlement to TDIU effective August 10, 2016. The effective date assigned by the RO was based on the date that the Veteran met the schedular requirements under 38 C.F.R. § 4.16. However, the issue of entitlement to a TDIU is raised as part and parcel of an initial rating claim when the Veteran seeks the highest rating and there is evidence of unemployability due to the disability for which a higher initial rating is being sought. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, since the appeal period for the claim for a higher initial rating PTSD begins January 16, 2012, the issue of entitlement to TDIU prior to August 10, 2016, is before the Board. The issue of entitlement to a TDIU prior to August 20, 2016, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to August 9, 2016, the evidence is at least evenly balanced as to whether the Veteran's PTSD has been productive of occupational and social impairment which more nearly approximates deficiencies in most areas, including work, social relations, and mood, but has not more nearly approximated total social and occupational impairment. CONCLUSION OF LAW Prior to August 9, 2016, with reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 70 percent, but no higher, for PTSD, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument)." II. Initial Higher Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this case, the Veteran seeks an initial 70 percent rating for his PTSD. See Veteran's NOD dated October 2013. Currently, prior to May 23, 2013, the Veteran's PTSD is rated 30 percent disabling. For the period from May 23, 2013, to August 9, 2016, his PTSD is rated 50 percent disabling. Since August 10, 2016, the Veteran's PTSD is rated 70 percent disabling. As stated above, the Veteran has expressed satisfaction with the 70 percent rating and therefore, the period since August 10, 2016 is not for consideration. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under the general rating formula, a 50 percent rating is warranted for 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 for 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 an 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In January 2012, the Veteran filed a claim for service connection for PTSD. In December 2012, the Veteran was afforded a VA examination. He reported suspiciousness, panic attacks occurring more than once a week, and chronic sleep impairment. He stated that he is married with two children. He indicated that following his military service in 2005, he has had 5 unsuccessful job attempts. He explained that he has difficulties with obtaining and maintain employment due to his bad attitude and inability to get along with others, to include his supervisors. In December 2012 and May 2013 statements, the Veteran's spouse reported that the Veteran does want to be around others; he prefers social isolation. However, the Veteran's spouse indicated that the Veteran wants to be around his children. The Veteran's spouse also reported that that the Veteran threatened her with a weapon and that that the Veteran experiences suicidal ideation. The Veteran's spouse indicated that the Veteran has had difficulty obtaining and maintaining employment. The Veteran's spouse indicated that the Veteran lost his last job, working in a distribution company, due to lack of performance. In a May 2013 letter, a VA treatment provider reported that the Veteran was "considered a high risk for suicide ideation." In May 2013, the Veteran submitted a TDIU claim, indicating that he is unable to work due to his PTSD. In an October 2013 Benefits Questionnaire (DBQ) form, D.L.W., a, diagnosed the Veteran with moderate to severe PTSD and major depression. The Veteran reported depressed mood, anxiety, impairment of short and long term memory, difficulty in understanding complex commands, impaired judgment, gross impairment in thought process or communication, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, grossly inappropriate behavior, intermittent inability to perform activities of daily living, and disorientation as to time or place. The psychologist indicated that the Veteran's PTSD symptoms such as irritability anxiousness, aggressive, and "distorted perceptions and heightened reactivity have contributed to employment problems." The psychologist noted that since the Veteran's military service discharge, "he has not been able to adapt to work environment," as he is argumentative and inability to get along with others. The psychologist indicated that the Veteran exhibits poor judgement and aggressive behavior due to his PTSD and major depression. Furthermore, the psychologist concluded that the Veteran's PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school family relations, judgment, thinking and/or mood. For the reasons below, entitlement to an initial 70 percent rating throughout the appeal period for PTSD is warranted. Throughout the appeal period, the evidence reflects that the Veteran has difficulties maintaining and obtaining employment; difficulties getting along with others; social withdrawn; and suicidal ideation due to his PTSD. Specifically, the Veteran's VA examinations and his statement from his spouse reflect that the Veteran experiences social impairment, as he prefers not wanting to be around others. Additionally, the evidence shows that the Veteran exhibits occupational impairment. For example, the Veteran's spouse reported that the Veteran lost his last job, working in a distribution company, due to lack of performance. Moreover, in the October 2013 DBQ, the psychologist stated that the Veteran has not been able to adapt to work environment due to his PTSD symptoms," as he is argumentative and inability to get along with others. Lastly, the Veteran has indicated that he is unable to work due to his PTSD. As such, the Veteran has exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected PTSD. He had symptoms listed in the criteria for a 70 percent rating, including suicidal ideation, as well as deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (the language of the general rating formula 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). As noted above, the Veteran has indicated that he would be satisfied with an initial 70 percent rating for PTSD and the Board has thus granted the benefit sought in full. The Board notes that, to the extent that the issue of entitlement to an initial rating higher than 70 percent remains on appeal, the evidence does not reflect that the symptoms or overall impairment of the Veteran's PTSD more nearly approximates the criteria for the next higher rating of 100 percent. To this end, the evidence does not show or more nearly approximate total social impairment. For instance although the Veteran prefers social isolation, he remains married and wants to spend time with his children. The evidence is, thus, approximately evenly balanced as to whether the symptoms and overall impairment caused by the Veteran's PTSD more nearly approximates the criteria for a 70 percent rating. As such, the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, and entitlement to an initial rating of 70 percent is warranted for the entire period on appeal. 38 U.S.C. § 510 (b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). ORDER Entitlement to an initial rating of 70 percent, but no higher, for PTSD prior to August 9, 2016 is granted, subject to controlling regulations governing the payment of monetary awards. REMAND As indicated above, during the pendency of the appeal for an initial higher rating for PTSD, the Veteran filed a formal TDIU indicating that he has been unemployed since June 2012, due to his service-connected PTSD. See Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated May 2013. In a June 2013 rating decision, the RO denied entitlement to TDIU because he did not met the schedular requirements under 38 C.F.R. § 4.16. However, pursuant to the above decision, the Veteran now meets the schedular criteria for TDIU throughout the appeal period. See 38 C.F.R. § 4.16(a). To this end, prior to August 10, 2016, the Veteran has continuously reported that he has been unable to maintain and obtain employment due to his PTSD symptoms. For example, the Veteran's spouse reported that the Veteran lost his last job, working in a distribution company, due to lack of performance. Moreover, in the October 2013 DBQ, the psychologist stated that the Veteran has not been able to adapt to work environment due to his PTSD symptoms, as he is argumentative and inability to get along with others. Lastly, the Veteran has indicated that he is unable to work due to his PTSD. As the AOJ has not had an opportunity to develop and adjudicate this issue, since the Veteran now meets the schedular criteria for TDIU prior to August 10, 2016, a remand is warranted. Accordingly, the remaining claim is REMANDED for the following action: 1. Develop and adjudicate the issue of entitlement to a TDIU prior to August 10, 2016. 2. After undertaking any other development deemed appropriate, adjudicate the issue of entitlement to a TDIU prior to August 10, 2016. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs