Citation Nr: 20006409 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 19-26 642 DATE: January 28, 2020 ORDER Entitlement to revision of a March 3, 2014, rating decision that awarded service connection for posttraumatic stress disorder (PTSD) and assigned a noncompensable evaluation, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is denied. Entitlement to revision of a November 9, 2015, rating decision that continued a noncompensable evaluation for PTSD, on the basis of CUE pursuant to 38 C.F.R. § 3.105, is denied. Entitlement to an effective date prior to February 1, 2018 for the assignment of a 30 percent disability rating for PTSD is denied. Entitlement to a 70 percent rating for PTSD is granted. REMANDED Entitlement to a finding of total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The March 3, 2014, rating decision that awarded service connection for posttraumatic stress disorder (PTSD) and assigned a noncompensable evaluation became final because the Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. 2. The RO considered the facts shown in the evidence of record and applied the correct law at the time of the March 3, 2014, rating decision, and there is no error that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different. 3. The Veteran has not alleged an error of fact or law in the March 3, 2014, rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. 4. The November 9, 2015, rating decision that continued a noncompensable evaluation for PTSD became final because the Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. 5. The RO considered the facts shown in the evidence of record and applied the correct law at the time of the November 9, 2015, rating decision, and there is no error that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different. 6. The Veteran has not alleged an error of fact or law in the November 9, 2015, rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. 7. A claim for an increased rating for PTSD was received by VA on February 1, 2018. There were no prior unadjudicated claims, nor was an increased rating shown within a year prior to the claim. 8. The Veteran’s PTSD is manifested by social and occupational impairment in most areas with symptoms such as near-continuous panic or depression, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships; total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. The March 3, 2014, rating decision that awarded service connection for posttraumatic stress disorder (PTSD) and assigned a noncompensable evaluation was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105(a) (2019). 2. The November 9, 2015, rating decision that continued a noncompensable evaluation for PTSD was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105(a) (2019). 3. The criteria for an effective date prior to February 1, 2018, for the grant of a 30 percent disability rating for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 4. The criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1990 to June 1994 and in the U.S. Army from March 1997 to December 2000. These matters come to the Board of Veterans’ Appeals (Board) on appeal from March 2018 and May 2018 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The issue of entitlement to TDIU due to service-connected disabilities has been raised by the record during the course of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Clear and Unmistakable Error The Veteran asserts CUE in the March 3, 2014 rating decision that awarded service connection for PTSD with a noncompensable evaluation, effective May 7, 2013, and a November 9, 2015 rating decision that confirmed and continued the noncompensable evaluation. The Veteran’s representative contends that the June 2013 VA examiner did not check any PTSD symptoms in Item 5 of the examination report. While the VA examiner indicated that the Veteran’s subjective symptoms did not rise to the level of chronicity required for inclusion in Item 5 and or were not objectively identified on mental status examination, the representative directs attention to VA treatment records dated November to December 2010. The Veteran’s representative highlights that the Veteran was referred to the PTSD Clinic Treatment Program, was seen by a psychologist, and his enrollment in the PTSD Treatment Program included Axis I diagnoses of PTSD and depression. Thus, the representative argues that the Veteran had symptoms over a period of three months, which is sufficient to establish chronicity of PTSD symptoms under the DSM-4. The representative asserts that this error resulted in the assignment of an improper rating by the VA adjudicator in the March 2014 rating decision. Regarding the October 2015 VA examination report, the Veteran’s representative similarly contends that the VA examiner (who also performed the June 2013 examination) did not identify the Veteran’s mental health symptoms in Item 4 of the report. Although the Veteran’s lay complaints of PTSD symptoms were included in the examination report, the VA examiner reported that those symptoms did not rise to the level of chronicity required for Item 4 and or were transient, or were not objectively identified on mental status examination. As with the June 2013 VA examiner, the representative asserts that this error resulted in the assignment of an improper rating by the VA adjudicator in the November 2015 rating decision. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The Veteran was awarded entitlement to service connection for PTSD in a March 2014 rating decision, evaluated as noncompensable from May 7, 2013. The Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new and material evidence within one year of its promulgation. Thus, the March 2014 rating decision became final. In a November 2015 rating decision, the RO continued the evaluation of PTSD as noncompensable. The Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new and material evidence within one year of its promulgation. Thus, the November 2015 rating decision also became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). At the time of the March 2014 rating decision, the claims file included the Veteran’s May 2013 informal claim of service connection for PTSD, service treatment records, VA outpatient treatment records, and a June 2013 VA examination report. At the time of the November 2015 rating decision, the claims file subsequently included the Veteran’s August 2015 Supplemental Claim (VA 21-526b) for an increased rating for PTSD, VA outpatient treatment records, and an October 2015 VA examination report. Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). As discussed above, the Veteran and his representative contend that the VA examinations he was afforded in June 2013 and October 2015 were inadequate. However, an argument regarding whether the Veteran is afforded a VA examination or if such an examination was inadequate, is an argument that the VA failed in its duty to assist the Veteran, which does not apply in CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001). To the extent that the Veteran contends that the VA adjudicators did not appropriately consider his lay statements regarding the manifestation of his PTSD symptoms, the Veteran’s arguments are essentially a disagreement as to how the facts were weighed or evaluated by the adjudicators in the in the March 2014 and November 2015 rating decisions. Moreover, “[i]t is the prerogative of the factfinder... to interpret the evidence and draw reasonable inferences from it.” Evans v. McDonald, 27 Vet. App. 180, 185, 187 (2014) (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). While the VA examiner did not include a list of PTSD symptoms in Items 5 and 4 of his June 2013 and October 2015 VA examination reports, respectively, the reports included the Veteran’s subjective complaints related to his PTSD. The Federal Circuit has held that, “absent specific evidence indicating otherwise, all evidence contained in the record at the time of the [AOJ’s] determination . . . must be presumed ot have been reviewed by the Department of Veterans Affairs, and no further proof of such review of such review is needed.” Gonzalez v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). Based upon the reasoning contained within the March 2014 and November 2015 rating decisions, the RO did not commit clear and mistakable error based upon the record and the law that existed when the decisions were made. In summary, the Board finds that the record does not support that the RO misapplied the appropriate law or did not have the correct facts before it at the time of its March 2014 or November 2015 rating decisions and, therefore, the Veteran’s motions for revision of those decisions are denied. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C. § 5110(b)(1). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). The Veteran contends he is entitled to an effective date prior to February 1, 2018, for the 30 percent evaluation for his service-connected PTSD. The Veteran submitted a request for an earlier effective date in a Notice of Disagreement received on June 14, 2018. The record reflects that the Veteran submitted his initial claim for service connection for PTSD in May 2013. There were no prior formal or informal claims of record. The claim was granted by the RO in a rating decision dated March 2014 with a noncompensable evaluation, effective May 7, 2013. The Veteran did not submit a notice of disagreement or otherwise express disagreement with that determination within one year and, as such, the decision is final. The Veteran subsequently filed a Supplemental Claim for an increased rating for PTSD in August 2015. In a November 2015 rating decision, the RO confirmed and continued the noncompensable evaluation for PTSD. The Veteran did not submit a notice of disagreement or otherwise express disagreement with that determination within one year and, as such, the decision is also final. As discussed above, the Board finds that there is no showing of clear and unmistakable error in those denials. The Veteran submitted a claim for an increased rating for PTSD on February 1, 2018. A rating decision dated March 2018 increased the evaluation of PTSD to 30 percent disabling, effective February 1, 2018. There is no contention or evidence to suggest a factually ascertainable increase in disability in the year preceding the claim for an increased rating. Increased Schedular Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Effective March 19, 2015, VA adopted without change an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders. The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-5. Specifically, the rulemaking amended 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130. The Veteran’s PTSD is rated under Diagnostic Code 9411 and evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.30. The General Rating Formula for Mental Disorders provides that a 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is 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. A 70 percent rating is warranted where there is 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); and inability to establish and maintain effective relationships. Id. The Federal Circuit has found that § 4.130 requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for a 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). A 100 percent 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; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, 4.30. 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 diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition of similar type and degree that affect the level of occupational and social impairment. Id. The Veteran contends that he is entitled to a rating in excess of 30 percent for his service-connected PTSD. The Veteran’s PTSD is rated as noncompensable, effective May 7, 2013, and as 30 percent disabling, effective February 1, 2018. The record reflects that the Veteran filed a claim for an increased rating for his PTSD on February 1, 2018. The Board, in consideration of 38 C.F.R. § 3.400(o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has considered the evidence in the one year prior to the date of receipt of the increased rating claim, but finds that it does not support a finding that the Veteran’s disability increased in severity, such as to warrant a higher rating, during that one year period. The evidence of record reflects that the Veteran was afforded a VA PTSD examination in March 2018. The Veteran reported that he had not received any mental health services since the previous VA examination in October 2015. He stated that he was not on any medications for sleep, anxiety, or mood. The Veteran indicated that he would wake up at night, not knowing whether he was asleep or awake, and looking for his rucksack in the closet. The Veteran reported that he gets about three and a half to four hours of sleep at night, and that his dreams at night have become more intense. The VA examiner indicated that the Veteran had symptoms of anxiety and chronic sleep impairment. Upon mental status examination, the Veteran appeared appropriately dressed and groomed, was not in distress, and was alert, well-oriented, and able to express himself in a relevant and coherent manner. The Veteran further displayed normal speech, and that he interacted in a cooperative and agreeable manner. The Veteran denied current or recent homicidal or suicidal ideation, bizarre or delusional beliefs, or morbid preoccupations. The VA examiner reported that there was no evidence of any significant impairment in basic cognitive functioning, and that the Veteran’s primary expressed concerns were chronic sleep impairment and anxiety. The VA examiner opined that the Veteran has an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The VA examiner indicated that there was no evidence of any significant increase in symptom severity or of heightened interference in social occupational functioning relative to the Veteran’s condition as described in the report of the most recent prior examination. In March 2018 correspondence, the Veteran endorsed symptoms of anger, anxiety, denial, drug abuse, flashbacks, guilt, heavy use of alcohol, isolation, problems at work, and an inability to share feelings. VA treatment records indicate that the Veteran was admitted from May 21, 2019 to May 24, 2019 for depression with suicidal ideation. The Veteran reported that he felt increasingly more depressed with no discernible trigger over the past several years, but felt it had intensified within the last year. He noted that the worsening depression was in the context of social isolation following the move to South Carolina and a demanding job as a truck company manager. The Veteran endorsed several months of worsening symptoms of depression, including insomnia, anorexia, anergy, and decreased focus, and that he had vague notions of suicidal ideation approximately one month ago. Treatment notes during this period also reference symptoms of poor concentration, low mood, fatigue, low appetite, and guilt problems. The Veteran reported that this culminated in him holding a gun to his head and considering suicide two weeks prior to his admission. He noted that he had never been longitudinally followed by a psychiatric provider nor hospitalized in a psychiatric facility. Subsequent VA outpatient treatment records dated June 2019 reflect that the Veteran quit his job in management after trying to return to work due to feeling overwhelmed and stressed. He noted that he felt like he could no longer meet the demands of the position. Thereafter, VA records dated September 2019 indicate that the Veteran endorsed had frequent panic attacks and a sense of impending doom in August, which he described as a “horrible month.” The Veteran reported an increase in hypervigilance, hyperstartle, intrusive memories, flashbacks, nightmares, irritability, insomnia, concentration issues, and memory complaints. He also reported fragmented sleep. Mental status examinations from June to November 2019 reflect that the Veteran appeared cooperative and polite, and presented in an adequately-groomed manner. The Veteran was alert and oriented, made good eye contact, demonstrated adequate interpersonal skills, displayed normal speech, had a depressed and anxious mood with congruent affect, and no motor abnormalities. He further exhibited intact memory, intact insight and judgment, intact associations, logical, linear, and goal-directed thought processes, no obvious indication of formal thought disorder, delusions, or visual or auditory hallucinations, and denied any recent or current suicidal or homicidal ideation, intent, or plan. In October 2019, the Veteran’s treating VA psychiatrist submitted an assessment on the Veteran’s behalf. The psychiatrist stated that he has treated the Veteran since May 2019 on a monthly basis. The psychiatrist opined that the Veteran has moderate limitations in his ability to remember locations and work-like procedures; understand and remember very short and simple instructions; and understand and remember detailed instructions. The psychiatrist opined that the Veteran has mild limitation in his ability to sustain an ordinary routine without special supervision; and moderate limitations in his ability to carry out very short and simple instructions and make simple work-related decisions. He further opined the Veteran has marked limitations in his ability to carry out detailed instructions; maintain attention concentration and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; work in coordination with or in proximity to others without being distracted by them; and complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number of and length of rest periods. Regarding social interaction, the psychiatrist opined that the Veteran has moderate limitations in his ability to ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; and maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; and marked limitations in his ability to interact appropriately with the general public; and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. He further opined that the Veteran has a mild limitation in his ability to be aware of normal hazards and take appropriate precautions, and moderate limitation in his ability to set realistic goals or make plans independently of others. The psychiatrist opined the Veteran has marked limitations in his ability to respond appropriately to changes in the work setting, and tolerate normal levels of stress, and has extreme limitations in his ability to travel in unfamiliar places or use public transportation. He further opined that the Veteran’s PTSD would substantially interfere with his ability to work on a regular and sustained basis at least 20 percent of the time, and that he would need to miss more than 75 percent of work each month because of his PTSD symptoms or for treatment of the disability. In November 2019, the Veteran’s wife submitted a letter on behalf of the Veteran. The Veteran’s wife reported that the Veteran’s PTSD symptoms have worsened over the years, such that he gets two to three hours of sleep per night, has vivid nightmares, is afraid to go to any public spaces, is unable to be in small spaces like hallways, does not want to be around people, and does not have any friends. She indicated that they have not celebrated the Fourth of July in many years due to the sound of the fireworks. The Veteran’s wife also stated that the Veteran has short-term memory problems, bad time perception, needs reminders, has poor navigation skills, panic attacks while driving, difficulty concentrating or following simple directions, and has become increasingly angry and withdrawn. She further noted that he has increased his alcohol consumption and chews tobacco as coping mechanisms. As such, based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows that his disability picture more nearly approximates the level of severity contemplated by a 70 percent rating for PTSD, which contemplates impairment in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. While the severity of the Veteran’s PTSD rises to the level envisioned by the 70 percent rating threshold, the Veteran did not display a manifestation of symptoms with the severity, frequency, and duration comparable of a 100 percent disability rating. Correspondence from the Veteran’s wife, the October 2019 assessment by a treating VA psychiatrist, and statements made by the Veteran to his treating VA clinicians and March 2018 VA examiner, and outpatient treatment records collectively did not note gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Therefore, a total occupational and social impairment has not been shown and a rating of 70 percent, but no higher, is warranted. REASONS FOR REMAND The Veteran has raised the issue of entitlement to TDIU as part and parcel of his increased rating claim, alleging that his PTSD prevents him from securing and following substantially gainful employment. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Further, while a formal application for TDIU is not required, a VA Form 21-8940 should be requested to ensure that all factors for consideration in such a claim have been addressed. The matters are REMANDED for the following action: 1. Contact the Veteran and request a properly executed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. (Continued on the next page)   2. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and then return the matter to the Board after an appropriate period to respond, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, Associate 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.