Citation Nr: 20030153 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 13-14 328 DATE: April 29, 2020 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with depression and traumatic brain injury (TBI) is denied. Entitlement to an effective date of January 24, 2016, but no earlier, for the award of a 70 percent rating for PTSD with depression and TBI is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD with depression and TBI has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; but not total occupational and social impairment. 2. In a December 2012 rating decision, the RO continued a 50 percent rating for the Veteran’s PTSD with depression and TBI. The Veteran was notified of the decision by letter in December 2012 but did not file a notice of disagreement; therefore, the decision became final. 3. There was no unadjudicated or informal claim pending prior to January 24, 2017 for an increased rating for PTSD with depression and TBI. 4. It is factually ascertainable that the severity of the Veteran’s PTSD with depression and TBI increased one year prior to his January 24, 2017 claim. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD with depression and TBI have not been met. 38 U.S.C. § 1101, 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.4, 4.7, 4.14, 4.124a, 4.126, 4.130, Diagnostic Code 8045-9411 (2019). 2. The criteria for an effective date of January 24, 2016, but no earlier, for the award of a 70 percent rating for PTSD with depression and TBI have been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to March 1976, from May 1987 to November 1987, and from November 2003 to September 2004, with additional service in the Army National Guard. This matter comes to the Board of Veterans’ Appeals (Board) from an April 2017 rating decision which, in pertinent part, granted an increased 70 percent evaluation for the Veteran’s PTSD with depression and TBI, effective January 24, 2017. In June 2018, the Board remanded the matter for additional development, to include obtaining outstanding private treatment records. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. As such, the Board has considered the Veteran’s claim from January 24, 2016 to the present. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder with depression and traumatic brain injury. The Veteran contends that a disability rating in excess of 70 percent is warranted for his posttraumatic stress disorder (PTSD) with depression and traumatic brain injury (TBI). The Board notes that the Veteran’s tinnitus has been attributed to his TBI. However, the Veteran is already in receipt of a separate evaluation for tinnitus associated with TBI, and the evaluation of this disability is not currently on appeal. As such, the issue before the Board is whether an evaluation in excess of 70 percent for PTSD with depression and TBI is warranted. 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). The Veteran’s PTSD with depression and TBI has been evaluated under Diagnostic Code (DC) 8045-9411. Thus, the issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms and resulting level of impairment are more closely approximated by the symptoms associated with a 70 percent rating. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 8045 provides evaluation for three main areas of dysfunction that may result from TBI and have profound effects on functioning: Cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is to be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI are evaluated, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified.” However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, may be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified” table. Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Each condition should be evaluated separately as long as the same signs and symptoms are not used to support more than one evaluation and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. should also be considered. Under DC 8045, the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” A 100 percent evaluation will be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated at “total,” the overall evaluation is based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. However, not every facet has every level of severity. The “subjective symptoms” facet, for example, provides for an impairment level of 0, 1, or 2, which corresponds to 0 percent; 10 percent; and 40 percent, respectively. Notes are included with DC 8045. Note (1) states that there may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of Traumatic Brain Injury Not Otherwise Classified” with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation is not to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, a separate evaluation for each condition will be assigned. Note (2) states that symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3) states that “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4) states that the terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under DC 8045. The Veteran’s PTSD with TBI is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides for a 70 percent rating for 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. A 100 percent rating is assigned 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; and memory loss for names of close relatives, or for the Veteran’s own occupation or name. In Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19, 2017), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. As this appeal was certified to the Board after August 4, 2014, the DSM-5 does apply. 80 Fed. Reg. 14, 308 (March 19, 2015). Therefore, GAF scores are inapplicable in this instance. Turning to the evidence of record, VA treatment records dated in September and December 2015 and early January 2016 reflect that the Veteran reported passive suicidal ideation. The Board notes that while treatment records are dated prior to the relevant temporal period beginning January 24, 2016, they are relevant to show the state of the Veteran’s disability at the beginning of the appeal period. From January 24, 2016, VA treatment records show reports of sleep disturbances due to racing thoughts, anxiety around large crowds, depressed mood, lethargy, poor concentration, and periodic hopelessness. In October 2016, the Veteran sought treatment from the Vet Center with complaints of depression, anger, anxiety, suicidal thoughts with plan, difficulty concentrating and recalling information, and disturbed sleep. In a February 2017 letter, the Veteran’s treating Vet Center clinician found that the Veteran had persistent symptoms of PTSD, including intrusive daytime thoughts about his traumatic experiences, hypervigilance, exaggerated startle response, social withdrawal, blunted affect, avoidance of others, episodes of poor anger control, emotional lability, severe difficulty concentrating, severe sleep disturbances, inability to connect with others and form lasting relationships, survivor’s guilt, rapidly changing mood, and chronic anxiety/depressive symptomatology to include panic attacks. The clinician stated that these symptoms had been continual, progressive, and pervasive since the Veteran’s return from Iraq and had clearly led to social dysfunction that impacted his ability to maintain a healthy day-to-day life. Additionally, the Veteran had scored 58 on the PTSD Symptom Checklist (PCL-5), indicating severe symptoms of PTSD. An April 2017 VA TBI examination report reflects that the examiner found no complaints of impairment of memory, attention, concentration, or executive functions; normal judgment; social interaction was routinely appropriate; always oriented to person, time, place, and situation; normal motor activity; normal visual spatial orientation; no subjective symptoms; no neurobehavioral effects; able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language; and normal consciousness. The examiner indicated that the Veteran did not have any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to TBI. The examiner explained that while the Veteran noticed a recent decline in cognitive problems, these could be due to the array of cognitive risk factors he had been experiencing, rather than due to TBI, as the nature of TBI is such that continued functional decline is not expected years after injury. The examiner provided a diagnosis of TBI without residuals. An April 2017 PTSD VA examination report reflects the Veteran reported seeing a therapist once a month and taking medication to treat his PTSD. Upon examination, the examiner found PTSD symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened effect, difficulty understanding complex commands, impaired judgment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and obsessional rituals, resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran denied suicidal ideation, but reported hyperarousal, avoidance, obsessive checking and orderliness, and problems with short-term memory and concentration. The examiner indicated that the Veteran did not have a separate depressive disorder, but that his depression was subsumed under his PTSD diagnosis. The examiner noted that the Veteran’s short-term memory and concentration appeared to have worsened. After examining the Veteran, the examiner noted that the Veteran had TBI without residuals, thus, his depressed moods, anxiety, sleep difficulties, obsessive checking and orderliness, hypervigilance, and irritability were due to his PTSD. As the Veteran had no TBI residuals, his TBI did not cause social or occupational impairment. VA and Vet Center mental status examinations throughout the appeal period show that the Veteran appeared well-groomed; his behavior ranged from slightly tense to friendly, calm and cooperative with appropriate eye contact; his speech ranged from hypo-verbal with prolonged latency and slowed rate and rhythm to spontaneous and fluent with normal rate and rhythm; his mood ranged from tired to good; his affect ranged from flat, blunted, constricted, worried, and depressed to full; his thought processes were linear, logical, and goal-directed; he denied suicidal and homicidal ideation and audiovisual hallucinations and delusions; his cognition was intact; he was alert and oriented; and his insight and judgment ranged from fair to good. In July 2019, the Veteran ended treatment at the Vet Center due to a move. His treating clinician indicated that the Veteran responded exceptionally well when in active treatment and could manage his symptoms by use of positive coping techniques. The Veteran further reported that his relationships had improved. An August 2019 treatment record shows that the Veteran reported he was doing well, feeling much happier and less depressed and anxious, and that his relationship with his children was much improved. While he continued to experience some symptoms, such as hyper-startle, he reported that he was not bothered by them and could manage them. As noted above, under Diagnostic Code 8045, emotional/behavioral dysfunction resulting from TBI is to be evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. Here, the Veteran has a clearly diagnosed mental disorder of PTSD. In addition, given the findings in a November 2012 VA examination that the symptoms of the Veteran’s service-connected PTSD and TBI could not be delineated from each other, the Veteran’s PTSD with depression and TBI have been evaluated together under DC 9411 since March 28, 2012, as it allows the better assessment of overall impaired functioning due to both conditions. See 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1). As the April 2017 VA examiner found that the Veteran did not have any current residuals from TBI, the Board has continued to evaluate the Veteran’s disability under DC 9411. Based on the evidence of record, including that specifically discussed above, the Board finds that the Veteran’s PTSD with depression and TBI did not, at any time, more nearly approximate total occupational and social impairment. Treatment records indicate that the Veteran did not experience any delusions or hallucinations, gross impairment in thought processes or communication, or grossly inappropriate behavior. While the Veteran reported trouble with memory and concentration, his memory was never so impaired that he forgot the names of close relatives, his occupation, or his own name, nor was he disoriented to time and place. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. Beyond a report of suicidal ideation with plan in October 2016, the Veteran regularly denied thoughts, intent, or a plan involving self-harm or harm to others in existing treatment records and during the April 2017 VA examination. Thus, the Board finds that a disability rating in excess of 70 percent is not warranted for the Veteran’s service-connected PTSD with depression and TBI in this case. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The preponderance of evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim must therefore be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an effective date prior to January 24, 2017 for an increased evaluation from 50 percent to 70 percent for posttraumatic stress disorder with depression and traumatic brain injury. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. U.S.C. §5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o); VAOPGCPREC 12-98 (1998). The Veteran contends that an earlier effective date is warranted for the award of a 70 percent rating for his PTSD with depression and TBI. As discussed above, the Veteran filed his increased rating claim for his PTSD with depression and TBI on January 24, 2017. Prior to the Veteran’s January 24, 2017 claim, a December 2012 rating decision continued a 50 percent rating each for PTSD with depression and TBI. The Veteran was notified of this decision by letter in December 2012 but did not file a notice of disagreement. Therefore, the December 2012 decision became final. The Veteran has not alleged CUE in any prior rating decision. A review of the record does not demonstrate that the Veteran filed a claim, formal or informal, for an increase in his service-connected PTSD with depression and TBI until January 24, 2017. As the receipt date of the increased rating claim was January 24, 2017, an effective date prior to January 24, 2017, cannot be granted unless the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of his claim. The next question for the Board is the date the Veteran’s increase in disability became factually ascertainable. As the Veteran’s PTSD with depression and TBI was rated at 50 percent, the Board must determine when the evidence indicates that the criteria for a 70 percent rating became manifest. Here, the Board finds that an effective date of January 24, 2016, for the award of a 70 percent rating is warranted for PTSD with depression and TBI, is warranted. As discussed above, from January 24, 2016, VA treatment records show reports of sleep disturbances due to racing thoughts, anxiety around large crowds, depressed mood, lethargy, poor concentration, and periodic hopelessness. In October 2016, the Veteran reported suicidal ideation with plan. While the Veteran at other times denied suicidal thoughts or ideation, the Veteran’s treating Vet Center clinician noted in a February 2017 letter that the Veteran was shown to minimize his symptoms. (Continued on the next page)   The Board notes that thoughts of suicidal ideation are only considered in a 70 percent disability evaluation. There are no analogues at the lower evaluation levels. See Bankhead v. Shulkin, 29 Vet. App. 10, 20-21 (2017). Thus, under the General Formula for Rating Mental Disorders at 38 C.F.R. § 4.130, “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. at 20 (2017). Evidence of more than thought or thoughts of ending one’s life to establish the symptom of suicidal ideation, is not required. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm in order to establish the criteria of suicidal ideation. Bankhead, 29 Vet. App. 20-21. Thus, affording the Veteran the benefit of the doubt, an effective date of January 24, 2016, but no earlier, is warranted for the award of a 70 percent rating for service connection PTSD with depression and TBI. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.