Citation Nr: 20021667 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 15-40 557 DATE: March 26, 2020 ORDER A 70 percent rating is granted for posttraumatic stress disorder (PTSD) from August 30, 2013. Entitlement to a rating in excess of 70 percent for PTSD is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The evidence during the appeal period prior to July 10, 2019 shows PTSD with deficiencies in most areas due to symptoms such as impaired impulse control, such as unprovoked irritability with periods of violence, difficulty in adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. 2. The Veteran's PTSD has not been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. During the period prior to July 10, 2019, the criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating higher than 70 percent rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2004 to April 2005 and August 2007 to August 2010. These matters come before the Board of Veterans’ (Board) on appeal from a July 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The request for a TDIU has been added to this appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2018, the Veteran testified at a hearing before a Veterans Law Judge. The appeal was remanded for additional development in April 2019. In a February 2020 letter, the Board advised the Veteran that the judge who conducted the August 2018 hearing is no longer available to participate in his appeal. The Veteran was offered an opportunity to appear at another hearing before a Veterans Law Judge. The letter advised the Veteran that had had 30 days to submit a response, and if no response was received during time, the Board would proceed to decide the appeal. As the 30-day period has passed, the Board will proceed with adjudication of the appeal. 1. Entitlement to an increased rating for PTSD The Veteran seeks an increased rating for PTSD. He contends that the 50 percent rating assigned prior to July 2019 does not consider all his PTSD symptoms. The Veteran has been service-connected for PTSD since August 2010. The current claim for an increased rating for PTSD was received on August 30, 2013. In a January 2014 rating decision, the Veteran increased rating was denied. The Veteran appealed the decision in January 2014. He alleged he was manic depressed, suicidal, and his anger made him unpleasant and awkward to be around. A July 2019 rating decision increased the rating for PTSD to 70 percent, effective from July 10, 2019. Disability evaluations are governed by VA’s Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R., Part 4. The percentage ratings in the Rating Schedule represent the “average impairment in earning capacity” resulting from service-connected disabilities, and residuals thereof, in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. If there is a question as to which percentage rating should apply, the higher one will be assigned if the disability picture more nearly approximates the required criteria for that rating. 38 C.F.R. § 4.7. Posttraumatic stress disorder is evaluated pursuant to the General Rating Formula for Mental Disorders. A 50 percent rating is warranted when 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating applies if the veteran has 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating applies if the veteran has 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; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22; 38 C.F.R. § 4.130. A May 2013 VA emergency treatment note reflects that the Veteran reported worsening PTSD symptoms. He reported irritability, anxiety, intrusive thoughts, and violent fantasies. A mental status examination showed that the Veteran had normal speech, and his mood was euthymic. The Veteran denied suicidal thoughts but reported homicidal thoughts without plan or intent. He denied auditory, visual, or tactile hallucinations. No delusions were present. The Veteran had a linear thought process, fair insight, and fair judgment. He was oriented to time, place, and person. An October 2013 VA treatment record noted trouble sleeping at night, anger, constant tension and jumping at the slightest noise. The Veteran reported that he wanted to reduce his anxiety. The record noted that the Veteran was unemployed. The Veteran had a VA examination in December 2013. The Veteran symptoms included anxiety, outbursts of anger with impaired judgment, depressed mood, anhedonia, hopelessness, and flat affect. The VA examiner reported occupational and social impairment with reduced reliability and productivity. The examiner opined that the symptoms of PTSD and depressive disorder could not be differentiated, and both diagnoses contributed his impairment equally. The Veteran reported that he was socially isolated and kept his distance from others. He reported that he was recently separated from his girlfriend. The Veteran reported that they had frequent arguments, with him being angry to the point of being enraged. The Veteran reported that he had a part-time job in sales at a fitness facility. He was planning to take welding classes. The Veteran reported that he had been seen in the emergency room five months earlier after getting into a physical altercation with his friend. The examination noted that the Veteran’s PTSD symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. In December 2013, the Veteran submitted a statement from his friend. The Veteran’s friend stated the Veteran tends to get quiet, has mood changes, and is depressed. He also stated the Veteran gets irritated, angry, and he avoids talking about war. A VA treatment note dated in January 2015 reflects that the Veteran denied depressed symptoms, denied death wishes, delusions, and manic symptoms. The Veteran was afforded a VA examination in March 2015. The examiner determined the Veteran symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran symptoms were depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran was considered competent to manage his affairs. In November 2015, the Veteran stated during treatment that his posttraumatic stress was under control and he didn’t want to take medications because nothing worked. A VA examination was conducted in June 2019. The examiner reported the Veteran has difficulty attending to or is easily distracted from the task at hand. He had difficulty maintaining concentration and focus on work over a period of time and tended to skip from one task to another without completing the prior task. The Veteran had intrusive thoughts which interfered with his ability to stay focused on the task at hand. He had significant difficulty accepting supervision or receiving instructions without becoming angry and significant difficulty remembering instructions and details of work assignments. The examiner noted that the Veteran had significant difficulty functioning around people. His sleep was so disrupted as to be fatigued at work, making concentration and focus on work assignments difficult. He was so depressed that he had difficulty sustaining energy and motivation to complete assignments at work. With respect to social functioning, the Veteran reported that he did not have any close family relationships. He reported that he had been engaged three times. He had a daughter and stepdaughter and tried to maintain close relationships with them. The Veteran reported that he did not have close friends. In addressing the Veteran’s occupational status, the examination noted that the Veteran had worked for a utility district for 18 months but reported that he might be fired for disciplinary problems, such as taking too many days off and not getting along with people at work. Based on the Veteran symptoms the examiner determined the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. On review of the evidence of record the Board finds that while the Veteran’s posttraumatic stress disorder warrants a 70 percent rating for the period prior to July 10, 2019. The evidence during that period reflects that the Veteran’s disability was manifested by impaired impulse control, such as unprovoked irritability with periods of violence, difficulty in adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. Id. In consideration of the Veteran’s reported symptoms and the objective findings shown on the VA examinations, the Board finds that the severity of his PTSD more nearly approximated occupational and social impairment with deficiencies in most areas. The Board finds that the evidence of record does not support a rating of 100 percent at any point during the appeal, as the evidence does not reflect that his PTSD causes total social and occupational impairment. However, the overall evidence does not show that the frequency, severity, and duration of the Veteran's symptoms have more nearly approximated total social and occupational impairment. VA examiners have opined that the Veteran is able to manage his own affairs. The Veteran reported that he had good relationships with his daughter and stepdaughter. He reported that he had relationships with girlfriends and had been engaged. Accordingly, the Board finds that total social impairment is not shown. The evidence also does not reflect delusions, hallucinations, or disorientation to time or place. He does not have memory loss for names of close relatives, his occupation, or his own name. While the Veteran reported problems with anger, he was not a persistent danger to himself or others, as he did not have persistent suicidal or homicidal ideation. Therefore, the Board finds that the Veteran does not have total social and occupational impairment associated with PTSD due to symptoms associated with that percentage or other symptoms of similar frequency or duration. Thus, the criteria for a 100 percent rating for PTSD are not met. The Board has considered the benefit-of-the-doubt rule in making this decision. 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to a TDIU is remanded The June 2019 VA examination indicated that the Veteran was currently working but reported that he may be fired from his job. The examination report raises a claim for a TDIU rating in conjunction with his claim for an increased rating for PTSD. A remand for development of the TDIU claim is necessary. The matters are REMANDED for the following action: Send the Veteran a VA Form 21-8940 and ask the Veteran to list all his employment since August 2013. After the completed form is returned, adjudicate the claim for entitlement to a TDIU. CATHERINE CYKOWSKI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony L. Hines 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.