Citation Nr: 20011983 Decision Date: 02/12/20 Archive Date: 02/12/20 DOCKET NO. 18-08 337 DATE: February 12, 2020 ORDER Entitlement to a disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD symptoms most nearly approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an increased disability rating of 70 percent for PTSD have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.321, 4.3, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2002 to February 2010. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU is part of an increased rating claim when such claim is expressly raised by a Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, in a March 2016 Notice of Disagreement (NOD), the Veteran raised the issue that he was unable to keep employment for more than 3 years due to his disorder. Thus, the Board finds that the issue of TDIU has been raised by the record, and is within its jurisdiction, as noted on the title page of this decision. Entitlement to a disability rating of 70 percent for posttraumatic stress disorder (PTSD) Disability ratings are determined by evaluating the extent to which the Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. 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 the case of an initial rating, VA must consider staged ratings to account for variations in the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula For Mental Disorders, a 70 percent evaluation 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; 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is provided where there is 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Indeed, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). The Veteran’s PTSD is currently rated 50 percent, since November 21, 2013. The Veteran filed his service-connection claim for PTSD on November 21, 2013. A February 2015 rating decision granted service connection for PTSD, assigning a 50 percent rating, effective November 21, 2013. The Veteran received notification of this decision on March 18, 2015 and submitted a NOD on March 7, 2016. Therefore, review of the Veteran’s increased rating claim goes back to November 21, 2013. The Board finds that a 70 percent rating is warranted. In a December 2014 VA psychiatric examination, the examiner indicated that the Veteran’s PTSD symptoms included intrusive thoughts, nightmares, flashbacks, social isolation, obsessive compulsive rituals, suspiciousness and avoidance behaviors. His depressive symptoms were suicidal ideation. All symptomatology included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, impaired abstract thinking, 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 work-like setting, an inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence (criteria for a 70 percent disability rating under the General Rating Formula). The Veteran was afforded additional VA examination in March 2014. His symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, and suicidal ideation. The Veteran was fully alert, oriented to time, location, setting and situation. His appearance was unremarkable. There were no overt signs of perceptual or cognitive disturbances. The examiner indicated that he continually rubbed his head and looked down until spoken to directly. He was tangential and had difficulty focusing throughout the interview. He repeatedly focused on how much worse things were for him now and he repeated this throughout the interview; however, when asked to provide specifics in the past year, it was difficult for him to describe how his symptoms had worsened, even with assistance. He was cooperative and polite. He did indicate that he thought of suicide “all the time” with a plan to drive his truck into another car on the road, but he does not do it because of his family. The examiner concluded that the Veteran was at an increased risk for suicide due to his daily suicide ideation with a plan. His protective factors included the fact that he denied any previous attempts and his family support system, specifically, he indicated his 1-yr-old daughter. The examiner indicated that the Veteran should be considered an increased but not current imminent risk. In a November 2017 PTSD private evaluation, the evaluator noted that the Veteran had a decreased ability to recall the date, a tendency to repeat information, and misplacing personal belongings. He also forgot names of family members, such as his brother's name. The Veteran reported that he would go to his truck to pick up certain work items, but then forgot what he intended to do a few minutes later. He loses his train of thought as well. Word-finding difficulties and decreased ability to understand conversations were also endorsed. These deficits were described as progressively worsening. Regarding instrumental activities of daily living, the examiner noted that the Veteran continued to drive, but has been disoriented while conducting this activity. His wife manages the finances after he was forgetting to pay his bills. The Veteran also failed to recall when to take his medications. He also forgot to shave or get haircuts. He reported balance problems, which effected his ability to walk straight; and when he did not take Topamax, his balance problems worsened. His PTSD symptoms generally consisted of nightmares, flashbacks, being rather anxious in crowded places, and being easily startled by loud noises. He also admitted anger management problems, whereas he can raise his voice and needs to walk away to help him calm down. He endorsed depressive symptoms consisting of sadness, guilt, anhedonia, loss of interest, decreased appetite, and insomnia. He was frequently anxious during these moments, nervous, tremulous and experienced palpitations as well as shortness of breath. The examiner indicated that the Veteran appeared dysphoric, had somewhat flattened affective expression, appropriate judgment, appropriate insight, and cognitive deficits. He was minimally interactive, but his motor/sensory was normal, and he had minimal spontaneous speech. He had mild difficulties in understanding instructions. He was slow to complete testing tasks, occasionally distracted, and did not appear to exert optimal effort and had a tendency to easily discontinue tasks. The examiner concluded that, although the Veteran reported a past history of a concussion, he did not exhibit the risk factors associated with a poor prognosis such as prolonged loss of consciousness or posttraumatic amnesia. He presented a rather dysphoric and anxious individual who continued to experience daily life problems related to PTSD. Taking all factors into consideration with application of the approximating principles of 38 C.F.R. § 4.7, and the benefit-of-the-doubt doctrine, the Board finds that the Veteran’s PTSD most nearly approximated occupational and social impairment with deficiencies in most areas, warranting a 70 percent rating. The above-cited evidence reflects that PTSD symptomatology has primarily been manifested by near continuous depression affecting the ability to function independently, appropriately and effectively; suicidal ideation; and an inability to establish and maintain effective relationships. The Veteran has not exhibited all of the symptoms listed as examples for a 70 percent rating; however, the record does demonstrate the listed symptoms of continuous depression affecting the ability to establish and maintain effective relationships; suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; and inability to establish and maintain effective relationships. Indeed, his PTSD was manifested at times by suicidal thoughts, aggression, and difficulty in maintaining some relationships; he exhibits depression, sleep disturbance and decreased motivation; and has anxiety and flattened affect; however, the Board finds that a 100 percent schedular rating is not warranted. A total occupational and social impairment is not demonstrated by the record. While the Veteran argued a total rating should be awarded based on him not being able to work, this does not describe symptoms consistent with total impairment. Moreover, at no time since the appeal period has any examiner indicated that total occupational and social impairment exists. As noted above, a separate claim for TDIU has been raised by the record. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran claims that his “disorder” has affected his ability to “keep employment for more than 3 years.” Based on this note, it is unclear from the record whether the Veteran is in fact gainfully employed or was employed at times during this period under review, or whether any such employment was simply marginal. On remand, the Veteran should be requested to submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) outlining and describing all periods of employment since his increased rating appeal period. The matters are REMANDED for the following action: 1. Send the Veteran a copy of VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), and request that he complete this form and return it to VA. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Warren 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.