Citation Nr: 20052385 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 14-39 044 DATE: August 6, 2020 ORDER Entitlement to an initial rating for posttraumatic stress disorder (PTSD) of 70 percent, but no higher, for the entire period on appeal is granted. REMANDED Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entirety of the appeal period, the severity, frequency, and duration of the Veteran’s symptoms most closely approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent, but no higher, for PTSD 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 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from April 2010 to August 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2019 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran’s appeal was remanded for further development by the Board in July 2018. The appeal has been returned to the Board for appellate review. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Here, the Veteran has expressly raised the claim in correspondence received from his attorney in September 2019. Therefore, the Board has jurisdiction over this issue as part and parcel of his claim for a higher rating and has listed such on the title page. Entitlement to the assignment of an initial rating for posttraumatic stress disorder (PTSD) of 70 percent, but no higher, for the entire period on appeal is granted. The Veteran contends that he is entitled to an initial rating of 100 percent for the entire period on appeal because he suffers from numerous severe psychiatric symptoms. He has used the VA Veterans Crisis Line repeatedly. See October 2014 Substantive Appeal, VA Form 9. Under the General Rating Formula for rating mental health disabilities, a 30 percent rating is warranted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation under the general rating formula, the primary consideration of the Board of Veterans’ Appeals (Board) is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). A Veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio, 713 F.3d at 117; 38 C.F.R. § 4.130. By way of background, the Veteran was originally granted entitlement to service connection for PTSD in a September 2013 rating decision, effective September 1, 2012. The Veteran disagreed with the initial 30 percent rating assigned and timely perfected his appeal. Following remand, the Veteran’s rating was increased to 70 percent, effective October 12, 2018, in a March 2019 rating decision. In a September 2019 letter, the Veteran’s attorney asserted that this 70 percent rating should be made effective throughout the appeal period. For the following reasons, the Board agrees. The Veteran was examined in September 2013. The 2013 VA examiner assessed the Veteran’s level of impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran’s September 2013 examination revealed that the Veteran experienced symptoms of a depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. This examiner also noted that the Veteran had called the VA Veterans Crisis Line three times prior to examination. The examiner stated that the Veteran had few friends, socialized only on occasion, was hypervigilant, and had experienced damage to his close personal relationships on account of his mental health symptoms. An October 2018 private examiner, referred to in the March 2019 rating decision, diagnosed the Veteran with PTSD and indicated that the level of occupational and social impairment facing the Veteran would be best characterized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Mental status examination showed the Veteran’s attention to be normal, with variable concentration and increased trouble with short and long-term memory. The Veteran’s rate of speech was normal, although the Veteran’s speech content was overly-brief. The private examiner reported that the Veteran’s thought content was appropriate for the circumstances, with thought organization directed toward goals. The Veteran reported experiencing hallucinations. His mood was anxious and nervous, and his affect was restricted. The additional symptoms that applied to the Veteran’s PTSD, as reported by the October 2018 examiner, included: suspiciousness, panic attacks that occur weekly or less often, panic attacks that occur more than once a week, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, persistent delusions or hallucinations, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The October 2018 private examiner also reported that the Veteran did not experience symptoms consistent with circumstantial, circumlocutory or stereotyped speech, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation, grossly inappropriate behavior, persistent danger of hurting self or others, or disorientation to time or place. The examiner noted that individuals with PTSD typically have an inability to keep a job; concerning the Veteran, in particular, the examiner stated that the Veteran had been working on a full-time basis with accommodations at a cable company for the past two years and would continue to face significant obstacles with employment in the future. Following this, the Veteran was examined in February 2019 by a VA contract examiner. This examiner also reported that the Veteran’s level of occupational and social impairment was best categorized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, 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, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. The February 2019 VA contract examiner observed that the Veteran’s behavior was pleasant and cooperative, but also that the Veteran appeared guarded and non-spontaneous. The examiner remarked that the Veteran was continuously anxious, angry and depressed, and reported that he had been served with two protection from abuse orders, secondary to his behaviors at home. The examiner also remarked that the Veteran’s wife had left him twice in the past six months, that he avoids socializing, does not leave home except for work, and that he has a pattern of unauthorized absenteeism at work. The examiner noted that the Veteran was aware of the VA Veterans Crisis Line and had used it often. The examiner also included the Veteran’s statement that he would not act on his thoughts of self-harm because he begins to think about his kids and moves on. As noted above, the AOJ increased the Veteran’s disability rating for PTSD from 30 to 70 percent effective October 12, 2018, which is the date of receipt of the October 2018 private assessment articulating a level of severity commensurate with the 70 percent rating. However, review of the evidence of record received prior to October 2018 demonstrates that the severity of PTSD throughout the appeal period was most akin to that contemplated by the 70 percent rating, notwithstanding the overall occupational and social impairment assessment provided by the September 2013 VA examiner, discussed above. Indeed, the Veteran’s treatment records from June 2014 document his struggles with anger management and interpersonal relationships. In various lay correspondence over the years, the Veteran has reported that he is unable to experience happiness, that he struggles with close personal relationships, that he has difficulty expressing anger in healthy ways, that he has seen faces of Taliban fighters in his camouflage bedsheets, that he is paranoid someone will attack him from behind, and that he was fired, arrested, and declined for a promotion at work. On his October 2014 VA Form 9, the Veteran specifically described a prior scenario where he asked his fiancé to hold a gun to his head and pull the trigger. He recalled fighting with people he loves for no reason. The Board acknowledges the competent and credible reports from the Veteran as to the nature and severity of his symptoms, and has factored these lay reports in determining that the Veteran’s condition has reflected a level of severity more consistent with a 70 percent rating than with a 30 percent rating, throughout the period on appeal. As such, an initial rating of 70 percent is granted. That stated, throughout the entire period on appeal, the evidence shows that the Veteran’s PTSD has not manifested in occupational and social impairment beyond that which is contemplated by the current 70 percent rating. As noted above, a 100 percent rating is warranted when PTSD manifests in total occupational and social impairment. In this case, the evidence demonstrates that the Veteran has been employed at times during the appeal period, maintains the ability to comprehend his treatment plans, articulate his concerns to physicians and to VA, and manage his financial affairs. Concerning social impairment, the Veteran has cited his relationship with his children as a protective influence; he has also sought out treatment in order to improve his relationship with his wife. While the evidence of record demonstrates that the Veteran’s PTSD causes severe impairment, the Veteran’s lay statements and treatment notes also demonstrate that the Veteran still retains a level functional capacity above total loss. The Board recognizes that the October 2018 examiner indicated that the Veteran experienced persistent hallucinations and delusions, a symptom listed as an example for consideration in the assignment of a 100 percent rating. Crucially, notwithstanding the presence of such symptoms at that time, it is not shown by the record that they were so frequent or severe to cause total occupational or social impairment. Indeed, both the October 2018 examiner who recognized symptoms of hallucinations and the February 2019 VA contract examiner were in agreement that the Veteran’s level of impairment was best categorized as occupational and social impairment with deficiencies in most areas, as opposed to total occupational and social impairment. As indicated above, symptoms noted in the rating schedule 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran’s extent of occupational and social impairment. That stated, the medical and lay evidence of record simply does not show that the Veteran’s PTSD is so severe as to cause total occupational and social impairment. As such, entitlement to an increased initial rating for PTSD of 70 percent, but no higher, for the entire period on appeal is granted. REASONS FOR REMAND Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. In correspondence received in September 2019, the Veteran’s attorney stated that “the evidence of record is also clear that this Veteran is unable to work as a result of his service-connected disabilities.” However, the evidence of record indicates that the Veteran has worked in several jobs throughout the period on appeal. Most recently, the Veteran’s February 2019 C&P examination documented that the Veteran was employed at the time and had recently been transferred from a cable technician to a desk job. The October 2018 DBQ provided by the Veteran indicates that this job was a full-time position and included accommodations. A June 2014 VA Psychology Note reported that the Veteran had quit his job with UPS due to lack of hours and was now working for a chip delivery company. The Veteran’s September 2013 VA Examination reported that the Veteran had been employed by a cabinet factory for the past few months, after leaving his position at a jail because he could not tolerate being around so many people. The issue of entitlement to TDIU is remanded to clarify the Veteran’s employment history for the period on appeal. The matters are REMANDED for the following action: 1. Request that the Veteran submit detailed information regarding employment and income history for the years in which he claims to have been precluded from maintaining gainful employment due to a service-connected disability or disabilities. Invite the Veteran to submit additional supporting documentation including tax returns or statements from his current or former employers. For any employment that the Veteran considers to be marginal as due to a protected work environment, request that the Veteran provide a detailed explanation as to what factors characterize the work environment as protected. 2. Thereafter, readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.