Citation Nr: 20028052 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 13-30 780 DATE: April 22, 2020 ORDER Entitlement to a 70 percent for posttraumatic stress disorder (PTSD) prior to February 26, 2018 is granted. Entitlement to a rating in excess of 70 for posttraumatic stress disorder (PTSD) for the period following February 26, 2018 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period prior to February 26, 2018, the Veteran’s PTSD symptoms more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. For the period following February 26, 2018, the Veteran’s PTSD was not manifested by total social and occupational impairment. CONCLUSION OF LAW 1. The criteria for a 70 percent rating for PTSD prior to February 26, 2018 have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for a 70 percent rating for PTSD for the period following February 26, 2018 have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to August 1967, to include service in Vietnam from January 1966 to December 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing in December 2016 with the undersigned Veterans Law Judge and the transcript of the hearing is of record. 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 26, 2018, and in excess of 70 percent thereafter Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. The Veteran contends that a rating in excess of 30 percent for PTSD was warranted prior to February 26, 2018, and a rating in excess of 70 percent is warranted for the period thereafter. Under the General Formula for Mental Disorders (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 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. For the reasons stated below, the Board finds that a 70 percent rating, but no higher, is warranted for the Veteran’s PTSD for the entire period on appeal. The Veteran was afforded a VA examination in March 2014. He reported being married to his wife since 1971 and described the relationship as “sort of good”. He reported a good relationship with his 2 children. He also reported keeping in contact with a few close friends, fishing, and golfing. He reported retiring in 2000 from construction due to back pain. On clinical examination, the Veteran’s symptoms were noted as anxiety and chronic sleep impairment. He was noted to be capable of managing his own financial affairs. The examiner opined that the Veteran’s PTSD was manifested by 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. The Veteran’s VA and private treatment records prior to February 2018 show a history of impaired impulse control and social functioning. To that extent, a September 2015 private treatment record showed irritability and a short temper with others, with the Veteran reporting he had one friend. A separate September 2015 entry showed a history of angry outbursts towards his family. In a December 2016 private treatment record, the Veteran described a near physical altercation a couple days prior, he reported his daughter moving out of home due to his anger and temper, and his appearance was noted as disheveled. The Veteran’s private and VA treatment records also collectively show that he denies suicidal or homicidal ideation, that he denies having panic attacks, and that there is no evidence of delusions or hallucination. The Veteran’s claims file also contains a March 2016 medical opinion from K. Z., the Veteran’s readjustment counselor. The Veteran was noted to not have slept in the same bed with wife since 1990, that he did not attend social functions, and that he struggles with getting out of bed and personal hygiene. K. Z. indicated that the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran’s impairment was also noted to result in unprovoked irritability and anger, difficulty in adapting to stressful circumstances, and near-continuous panic or depression affecting the ability to function independently. The Veteran submitted a lay statement from his wife dated November 2016. She indicated that the Veteran often displayed inappropriate behavior in public, became easily irritated over minor unprovoked things, and suffered from nightmares. She stated that the Veteran would yell if his clothes were not folded and put away the way that he liked. She also stated that the Veteran was withdrawn socially and started many projects, but would not complete them. The Veteran also submitted a lay statement from a long-time friend, C. H., dated January 2016. C. H. indicated that she often witnessed the Veteran lose his temper with his wife and son; stating that he became verbally abusive without any provocation. She indicated that the frequency of his outbursts had increased over the years and he had become more socially withdrawn. The Veteran testified at a hearing in December 2016. He reported nightmares, inability to get along with family, and worsening depression. He testified that he had friends, but that his confrontational and obsessive behavior caused issues. The Veteran also testified that he was unable to work due to symptoms of PTSD. Finally, he stated that he did not care whether he lived or died, but that he didn’t think that he could commit suicide. The Veteran was also afforded a VA examination in February 2018. The Veteran reported that his wife describes him as miserable and short tempered. He indicated that he is very argumentative and easily angered by his wife. The Veteran reported that he preferred to be alone and keep his distance from others. He reported being in the truck driving business for 17 years and retiring from the restaurant industry in 2008, after attempting to run a restaurant for 5 years. He denied a history of suicide attempts, engagement in self-injurious behavior, or ever being hospitalized for a psychiatric condition. On clinical examination, the Veteran’s symptoms were noted as depressed mood, anxiety, chronic sleep impairment, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and impaired impulse control. The Veteran denied any suicidal and homicidal ideations. His hygiene, thought process, and orientation were noted to be normal. His affect was noted as angry/irritable with congruent mood. There was no evidence of psychotic symptoms. The examiner opined that the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity. The examiner added that the Veteran did not pose any threat of danger or injury to self or others and due to symptoms of PTSD he may at times have difficulty navigating relationships in the workplace. The claims file also includes an October 2019 correspondence from K. R., the Veteran’s clinical counselor. The Veteran reported that he was unable to continue working in the construction industry in the mid-to-late 2000’s due to some physical issues, but mostly due to mental health. He also reported some impairment in short and long-term memory and an inability to control verbal impulses. The Veteran also reported difficulty maintaining employment in the real estate and restaurant industry due to communication skills and being anxious and irritable around people. In this case, the Board finds that the symptoms of the Veteran’s PTSD are more closely approximated by a 70 percent rating prior to February 26, 2018, and for the entire period on appeal. The medical and lay evidence of record shows deficiencies in most areas such as work, family relations, judgment, thinking, or mood. This finding is supported by the March 2016 medical opinion from K. Z., who also opined that the Veteran’s PTSD caused unprovoked irritability and anger, difficulty in adapting to stressful circumstances, and near-continuous panic or depression affecting the ability to function independently. The lay and medical evidence of record dating back to September 2015 also overwhelmingly shows a history of impaired impulse control; as evidenced by the Veteran’s angry outbursts toward family, reports of near physical altercations, the lay statements from the Veteran’s wife and his friend, and the findings of the February 2018 examiner. Further, the evidence shows neglect of personal appearance and hygiene; as demonstrated by reports of the Veteran appearing disheveled, as well as his reports of struggling with getting out of bed and personal hygiene. Finally, the February 2018 examiner also found that the Veteran had difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The Board has considered whether a higher 100 percent rating is warranted for any portion of the period on appeal, but finds that it is not. With regard to the criteria for a 100 percent rating listed under Diagnostic Code 9411, the Board points out that the evidence does not show that the Veteran’s PTSD has been manifested by gross impairment in thought processes or communication; persistent delusions or hallucinations; 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. Moreover, no VA or private medical opinion of record has found the Veteran’s PTSD to be manifested by total social and occupational impairment. The Board has not overlooked the Veteran’s assertion that his PTSD results in total occupational impairment; however, no VA or private medical opinion of record supports such a finding. Additionally, the Veteran himself has stated that he is unable to work, due in large part, to a back condition. The Board finds that this evidence is suggestive of the Veteran’s symptoms being more closely approximated by the criteria contemplated under a 70 percent rating. For the reasons stated above, the Veteran’s claim is granted in part, as the Board finds that a 70 percent rating is warranted prior to February 26, 2018. The Veteran’s claim is denied in part, as a rating in excess of 70 percent is not warranted for the period following February 26, 2018. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The evidence of record is unclear as to the Veteran’s employment history. On the Veteran’s January 2018 VA Form 21-8940 he listed being the owner of an Italian restaurant as his last employment from 2003 to 2008. VA treatment records also indicate that the Veteran has reported that he last worked as a truck driver in 2010. The Veteran also reported in April 2011 that he currently worked as a general contractor. An October 2013 record shows that the Veteran reported starting his own construction business. The Veteran was informed of the conflicting employment history in September 2018 and was requested to complete an updated VA Form 21-8940. To date, no response has been received. On remand, the Veteran should be afforded another opportunity to complete the VA Form 21-8940. The Veteran is reminded that it is imperative that he cooperates with the development of his claim. The matters are REMANDED for the following action: (Continued on the next page)   1. The RO must contact the Veteran and ask him to provide a complete history of his education and occupational experience, to include a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Any other development deemed necessary should be completed. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.