Citation Nr: 20021371 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-25 260 DATE: March 25, 2020 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder is granted. REMANDED Entitlement to a rating in excess of 10 percent for ischemic heart disease, status post myocardial infarction, is remanded. Entitlement to a rating in excess of 70 percent rating for PTSD with major depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD with major depressive disorder has more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as near continual panic or depression, repeated suicidal ideation, chronic sleep impairment, impaired impulse control, and difficulty in adapting to stressful circumstances reflective of the 70 percent rating criteria. CONCLUSION OF LAW The criteria for entitlement to a 70 percent rating for PTSD with major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411, 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1967 to April 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of March and April 2017 rating decisions by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). In a May 2018 Form 9, the Veteran’s representative indicated that the Veteran requested a travel board hearing before a Veterans Law Judge at a local VA office. In December 2019 correspondence, the Veteran’s representative stated that after consultation with the Veteran, the Veteran wished to withdraw his request for a hearing and have the case decided by the Board on the evidence of record. The Veteran also submitted a December 2019 signed letter reiterating the withdrawal request. Therefore, the Board considers the request for a hearing waived. Entitlement to a 70 percent rating for PTSD with major depressive disorder The Veteran contends the symptoms of his service-connected PTSD with major depressive disorder should be afforded a higher evaluation. The AOJ initially rated his psychiatric conditions as 50 percent disabling under the general Rating Schedule for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9211. Notably, the claim on appeal was originally certified to the Board in January 2017. As such, the nomenclature employed in this portion of VA’s Rating Schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (“DSM-V”). 38 C.F.R. § 4.130. See 80 Fed. Reg. 14308 (Mar. 19, 2015). Under the Rating Schedule, a 50 percent evaluation is warranted where the evidence shows 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 evaluation is warranted where the evidence shows 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 an inability to establish and maintain effective relationships. A 100 percent rating is warranted when 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; disorientation to time and place, memory loss for names of close relatives, own occupation, or own name. Symptoms listed in VA’s Rating Schedule for mental disorders 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. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms, and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). After a review of the lay and medical evidence, the Board finds that the Veteran’s psychiatric disability has more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as near continual panic or depression, repeated suicidal ideation, chronic sleep impairment, impaired impulse control, and difficulty in adapting to stressful circumstances. In May 2016, the Veteran reported to treating VA clinicians that he had difficulty falling and staying asleep and experienced difficulty concentrating as well as feelings of guilt about his time in Vietnam. He indicated in June 2016 he was having problems with motivation and consistently feeling stressed as well as experiencing continued nightmares related to events in Vietnam. In December 2016, the Veteran endorsed feelings of increasing anxiety and stated he “shuts down” during these periods. October 2018 VA treatment records indicate the Veteran stated that depression ruled his life and was his biggest problem along with his PTSD. He indicated he was having a hard time functioning and frequently “shut down” due to feeling overwhelmed. In November 2018 he told a VA clinician that he was feeling overwhelmed and anxious, having difficulty prioritizing concerns and had stopped completing routine tasks like opening the mail. In December 2018 the Veteran stated he had “overreacted” at a car dealership, which was the second time in a month he “blew up.” The Veteran has consistently reported continued feelings of depression and anxiety throughout the period on appeal. In April 2019, the Veteran told a VA clinician that depression, anxiety, and nightmares were part of his daily experience. According to VA treatment records, the Veteran reported that during the 1980s he spent approximately a year and a half total in inpatient psychiatric units. He indicated that in 2007 he stockpiled pills and alcohol for a suicide attempt but could not go through with it and was hospitalized for psychiatric treatment. He stated during a November 2019 VA psychiatric consultation that he thinks of suicide every day, praying that he will not wake up in the morning but had no active plan or intent on acting on these thoughts. VA clinicians have consistently noted the Veteran’s suicidal ideation throughout the appeal period. In this regard, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Court specified that VA must not require “more than thought or thoughts to establish the symptom of suicidal ideation,” and may not require that the Veteran have “been hospitalized or treated on an inpatient basis” to establish suicidal ideation because that “imposes a higher standard than the criteria in the DC for mental disorders.” Id. Moreover, the Court cautioned VA not to conflate the risk of “suicidal ideation, which VA generally considers indicative of a 70 [percent] evaluation, and his risk of self-harm, the persistent danger of which VA generally considers indicative of a 100 [percent] evaluation.” Id. As applied, the passive but consistent suicidal ideation which VA clinicians have recorded at many of the Veteran’s psychological treatment sessions is sufficient to establish the suicidal ideation symptom consistent with a 70 percent rating in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Thus, the Board finds that the Veteran has displayed symptoms reflective of the 70 percent rating criteria since the beginning of the appeal period. As addressed in the remand below, the record reflects that there may be outstanding records related to the Veteran receiving disability benefits from the Social Security Administration (SSA). The Board defers consideration of a 100 percent rating pending an attempt to obtain these records. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for ischemic heart disease, post myocardial infarction, is remanded. The Veteran experienced a myocardial infarction in September 2018. A stent was inserted, and he was released from the hospital several days later with a prescription for blood thinning medication. The AOJ granted service connection for his heart condition from November 28, 2016, the date of his claim. The Veteran’s heart condition was rated as 100 percent disabling per regulation for the remainder of the 3-month period following his myocardial infarction ending January 1, 2017 and rated at 10 percent thereafter. The Veteran appealed this initial rating. December 2016 VA medical records indicate that the Veteran had reported “twinges” of chest pain on several occasions, but that his treating clinician believed he had failed to mention them to his cardiologist. The Veteran was afforded a February 2017 VA examination for his heart condition. The VA examiner did not conduct METs testing, instead noting the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity and stating that the Veteran was “doing well from a cardiac standpoint.” A February 2017 cardiology consult reported that the Veteran’s functional status was 4 METs, but that he was “able to climb flight of stairs without CP/Palp/SOB,” and it did not address any other workload METs. VA medical records indicate the Veteran reported shortness of breath in July 2017 and July, September and October 2018. He also reported in April 2017 that he had been taking nitroglycerin for twinges of chest pain, and in October 2019 noted that he had experienced chest pain “since early in the year.” VA records indicate that the Veteran continued to be prescribed nitroglycerin for his chest pain at least into November 2019. The Board finds that that the record detailed above could indicate a worsening of the Veteran’s heart condition. Therefore, the Board finds that further development, including a contemporaneous medical examination, is needed to determine the current nature and severity of the Veteran’s heart disability. The Board also acknowledges that particular symptoms during the period on appeal may be due to the Veteran’s service-connected pulmonary condition. On remand, the examiner should attempt to differentiate these symptoms for the purpose of properly rating the Veteran’s service-connected heart condition. Entitlement to a rating in excess of 70 percent for PTSD Entitlement to a TDIU is remanded. As the Veteran has been service-connected at 100 percent for his lung condition from October 25, 2019, but a less than 100 percent rating has been in effect since the inception of the appeal period. During a November 2019 VA psychiatric evaluation, the Veteran related that his last gainful employment was for Publix grocery store. He recalled having a “meltdown” with two customers leading to hospitalization and his diagnosis of PTSD. He stated that this made him unemployable and that he was in poverty for the following 10 years. He reported that prior to Publix, when he could find a job, he would often quit out of the blue during one of his depressive episodes. The Veteran indicated that he would usually be able to find a new job relatively soon thereafter, but that the cycle would invariably repeat itself and that his only steady income were his VA and social security benefits. Employment records from Publix confirm that the Veteran has not been employed there since May 2005. To this end, the AOJ should attempt to obtain the Veteran’s SSA records. The Board notes that the record is not clear regarding the extent to which the Veteran’s service-connected heart and psychiatric conditions affect his ability to obtain and follow gainful employment throughout the period on appeal. The record contains opinions from VA examiners that the Veteran is suited for sedentary work, but the April 2017 opinion as to whether his psychiatric conditions prevent him from pursuing this type of employment is unclear. In this opinion, the VA examiner stated that the Veteran’s psychiatric conditions would likely impair his occupational functioning to a mild or moderate degree, but then opined that his periods of depression would interfere with his ability to maintain consistent attendance at the workplace. Regardless, as a claim for a TDIU is part and parcel with a claim for an increased rating, the issues are inextricably intertwined inasmuch that a grant of increase could affect the outcome of this claim. See Parker v. Brown, 7 Vet. App. 116 (1994). Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, further consideration of this claim must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The matters are REMANDED for the following action: 1. Update the claims file with all relevant VA treatment records. 2. Obtain all medical and legal documents pertaining to any award of SSA disability benefits. 3. Schedule the Veteran for an examination to address the nature and etiology of his service-connected ischemic heart disease. The claims file must be made available to the examiner. In light of April and July 2016, as well as July, September and October 2018 lay reports of shortness of breath and chest pain, and February 2017 VA medical records indicating a METs level of 4, the examiner should provide an opinion as to the Veteran’s METs capacity since January 1, 2017. The examiner should provide the Veteran’s current METs capacity by exercise stress test unless medically contraindicated. If medically contraindicated, the examiner should state such fact in the examination report. If the examiner cannot preclude METS limitations between ischemic heart disease and other comorbid conditions, the examiner should attribute all METS limitations to ischemic heart disease. 4. Schedule the for a VA examination to determine, since January 1, 2017 to October 25, 2019, the impact his service-connected disabilities, either singly or cumulatively, have on his ability to obtain or retain employment, including to perform tasks such as physical labor, endurance to work a full work day, and ability to work in an occupation requiring public contact and/or cooperation with co-workers and supervisors. The examiner is to be provided access to the electronic claims file and must supply a full rationale for any opinion(s) offered. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.