Citation Nr: 20004819 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 19-36 523 DATE: January 23, 2020 ORDER An initial rating higher of 70 percent, but no higher, for PTSD is granted. REMANDED Entitlement to a total disability rating due to individual unemployability is remanded. FINDINGS OF FACT 1. Across the appeal period, the Veteran’s PTSD has manifested in symptoms of hypervigilance and near-continuous panic, social difficulties affecting relationships, difficulties concentrating and remembering, obsessional rituals interfering with routine activities, difficulty adapting to stressful circumstances including work, and a history of suicidal thoughts, altogether reflecting a disability picture more nearly approximating occupational and social impairment with deficiencies in most areas. 2. Across the appeal period, the Veteran’s PTSD has not manifested in symptoms of a severity, frequency, and duration more nearly approximating total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1964 to August 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for PTSD and assigning an initial rating of 50 percent. The Veteran seeks an initial rating higher than 50 percent. The Veteran’s PTSD is rated under Diagnostic Code (DC) 9411, which in turn is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130. 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. Id. 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. Id. A 100-percent rating, the highest schedular rating, is warranted for 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; and, memory loss for names of close relatives, own occupation, or own name. Id. Turning to the evidence, at a VA examination on February 1, 2016, the Veteran reported suspiciousness, hypervigilance, and feeling detached and estranged from others. On the day of the examination, he was cognitively oriented, paid attention throughout the evaluation, and his memory for recent and remote events was intact. His insight and judgment were fair. He was well groomed. He was recorded to have “remote, fleeting, brief thoughts of self-harm” but no recent occurrence. He denied homicidal intent, hallucinations, or psychosis. The Veteran’s private treatment provider submitted a March 24, 2016 letter describing the Veteran’s symptoms. He was hypervigilant, easily startled, avoided crowds, and could not tolerate having anyone behind him. He had sleeping problems, including getting up at night to check the locks and to look out the window to make sure nobody was in the yard. He reported problems with concentration and difficulty focusing long enough to finish tasks. He reported that he did not socialize. At his most recent treatment session in November 2015, the Veteran was reported to be cognitively oriented, with normal speech and dressed appropriately, and at that time he did not have any suicidal ideations or homicidal ideations. In a statement received in April 2016, the Veteran reported that he frequently suffered from nightmares. The Veteran was provided another VA examination on October 23, 2018. He felt depressed “most of the time,” anxious and on edge “a lot,” and reported at least one panic attack daily. He was recorded to be hypervigilant, bothered by loud noises and easily startled, and he did not like to be in crowds or enclosed places. He was found to have mild memory loss, stating that he forgot the tasks he was supposed to complete and would get lost while driving because he “zones out.” Nightmares and sleep problems were worsening. The examiner found that he had disturbances in motivation and mood and difficulty adapting to stressful circumstances including work. On the day of the October 2018 VA examination, the Veteran had normal speech, was calm and cooperative, and appeared logical and goal-directed. He was casually dressed and well groomed. He denied suicidal ideations, mentioning suicidal thoughts “a few years ago but not recently.” He denied homicidal ideations and denied psychotic symptoms. The Veteran’s private treatment provider submitted another letter on October 26, 2019, stating that the Veteran still had nightmares, was “constantly looking over his shoulder,” had “more problems with his memory and concentration,” and reported that his family members “do not understand him.” Based on the evidence of record, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD has manifested in symptoms creating a disability picture more nearly approximating occupational and social impairment with deficiencies in most areas. Throughout the appeal period, the Veteran has been found to be hypervigilant, which in October 2018 was accompanied by daily panic attacks, and he in general has reported anxiety and depression with high frequency. The Veteran recounted having difficulty being in public spaces, and across the appeal period he has reported a feeling of detachment from other people. The Veteran has also expressed trouble connecting with his family, as they “do not understand him.” Cognitively, the Veteran has reported difficulty concentrating and focusing, and memory deficiencies such as forgetting his tasks. The evidence also shows continuous sleeping impairment, including waking up during the night and engaging in obsessional rituals. He also has been found to have disturbances in mood and motivation. After considering these symptoms, the October 2018 VA examiner opined that the Veteran had difficulty adapting to stressful circumstances including work or a worklike setting. Finally, while the Veteran generally denied suicidal ideation during the appeal period, he mentioned “remote, fleeting, brief” thoughts in February 2016, and then referred to them again at the October 2018 VA examination. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Given these symptoms of hypervigilance and near-continuous panic, social difficulties affecting relationships, difficulties concentrating and remembering, obsessional rituals interfering with routine activities, difficulty adapting to stressful circumstances including work, and a history of suicidal thoughts, the Board finds that across the appeal period the Veteran’s disability picture has more nearly approximated occupational and social impairment with deficiencies in most areas, thereby warranting a 70-percent rating. 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, DC 9411. The Board further finds, however, that across the appeal period the Veteran’s psychiatric disorder has not manifested in symptoms of a severity, frequency, and duration more nearly approximating total occupational and social impairment. Cognitively, across the appeal period the Veteran was always found to be oriented and speaking normally. Though he reported memory problems, the evidence does not establish that the deficiencies have ever approached a severity, frequency, or duration similar to memory loss for names of close relatives, his own occupation, or his own name. The Veteran’s hypervigilance, panic, anxiety, and related symptoms have never been found to create an intermittent ability to perform activities of daily living; across the appeal period, the Veteran was always found to be well groomed and in good hygiene. Though the Veteran referred to a history of suicidal ideations, he was never found to be a persistent danger of hurting himself. The Board finds that the evidence does not show symptoms of a severity, frequency, and duration more nearly approximating total occupational and social impairment. Accordingly, a rating higher than 70 percent is not warranted at any point during the appeal period. 38 C.F.R. §§ 4.126, 4.130, DC 9411. An initial rating of 70 percent, but no higher, for PTSD is granted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS FOR REMAND In the private provider’s March 2016 letter, the provider, after considering the Veteran’s PTSD symptoms “cause significant disturbances in all areas of his life,” opined that the Veteran is permanently disabled. This evidence reasonably raises the issue of whether the Veteran’s service-connected PTSD renders him unable to secure or maintain substantially gainful employment. Thus, entitlement to a total disability rating due to individual unemployability (TDIU) is reasonably raised by the record in this increased-rating claim. Rice v. Shinseki, 22 Vet. App. 447, 448, 449 (2009). The record as stands, however, does not currently contain enough information to allow the Board to soundly adjudicate entitlement to a TDIU. Therefore, the Board will remand the claim for development. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information. Give the Veteran the appropriate VCAA notice regarding what is needed to substantiate a claim for a TDIU. 2. After the above development and any other development deemed necessary is completed, adjudicate entitlement to a TDIU. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.