Citation Nr: 21000312 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-15 025 DATE: January 5, 2021 ORDER Entitlement to an increased rating of 70 percent, but no higher for post-traumatic stress disorder (PTSD), prior to September 18, 2018, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 16, 2011 is remanded. FINDING OF FACT Prior to September 18, 2018, it is as likely as not that evidence indicates that the Veteran’s PTSD is manifested by 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. Total social and industrial impairment is not shown. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the requirements for an increased rating of 70 percent, but no higher, prior to September 18, 2018, for PTSD are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1985 to February 1993. He testified before the undersigned in a September 2017 hearing. A transcript is of record. The Veteran appealed the August 2019 Board’s decision to the Court of Appeals for Veterans Claims (CAVC), as to the issues pertaining to: entitlement to an increased rating in excess of 30 percent prior to July 15, 2015 and in excess of 50 percent from July 15, 2015 to September 18, 2018 for posttraumatic stress disorder; and entitlement to a total disability rating based on individual unemployability prior to December 16, 2011. In an April 2020 Order, CAVC issued a joint motion for partial remand JMPR. The Court in the remand first determined that the Board erred when it failed to address favorable evidence concerning the Veteran’s symptoms PTSD claim for the prior to July 15, 2015 and from July 15, 2015 to September 18, 2018. The Court also determined that the Board erred when it failed to address favorable evidence concerning whether the Veteran is entitled to TDIU prior to December 16, 2011. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. § Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. (2019). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. PTSD 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 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 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 disability rating will be 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; memory loss for names of close relatives, own occupation, or own name. Diagnostic Code 9411. Entitlement to an increased rating in excess of 30 percent prior to July 15, 2015, and in excess of 50 percent from July 15, 2015 to September 18, 2018. The Board concludes, with resolution of reasonable doubt in his favor, that prior to September 18, 2018, the Veteran’s symptoms as likely as not did cause the level of impairment required for a disability rating of 70 percent, but no higher as total social and industrial impairment was not demonstrated.. VA outpatient psychiatric treatment records reveal that the Veteran has a history of suicidal ideation as early as 1996 with diagnosed symptoms of hallucinations and paranoia. These symptoms and those of suicidal thoughts are periodically reported, as were periods of paranoia. While not consistently found, with the other symptoms of irritability and related findings as noted below, a 70 percent rating, but no higher, is found contemplated prior to September 18, 2018. In a July 2010 VA outpatient psychiatric treatment notes reveal that the examiner diagnosed the Veteran’s symptoms of angry outburst and irritability. The examiner also noted that the Veteran screams and is prone to cursing and throwing objects. The Veteran underwent a VA examination in January 2011. He reported depressed mood, decreased interest in all activities, lack of energy, and increased anger and irritability. The examiner also noted constricted affect, mild short term memory loss, sleep impairment, irritability, and anxiety. There was no evidence of hallucinations or delusions and the Veteran denied suicidal or homicidal ideations. An April 2011 rating decision granted service connection for PTSD and assigned a 30 percent rating. The Veteran disagreed with this decision in May 2011, contending that a higher rating was warranted. In an accompanying statement, the Veteran stated that he experiences panic attacks that increase in frequency around large groups of people and that he is unable to remember tasks. He further stated that he was unable to maintain employment due to his PTSD or joint pain. In a June 2011 treatment record, the clinician noted that the Veteran was unable to work due to chronic pain. An August 2011 treatment record shows the Veteran was being treated for PTSD, depression, and anxiety. He had trouble staying awake. A mental status examination showed he had a pleasant affect, good mood, and organized thought process. The examiner noted no suicidal or homicidal thoughts and no delusions or hallucinations. In a September 2012 VA outpatient psychiatric note, the Veteran reported hearing his own voice. In a July 2012 VA outpatient psychiatric note, the examiner listed the Veteran’s symptoms as paranoia, auditory hallucinations, and suicidal ideation. In a February 2011 VA outpatient treatment note, the examiner noted the symptom of paranoia. In a May 2011 lay statement, the Veteran reported the symptoms of daily panic attacks. Based on a review of the record, the Board finds, with resolution of doubt that, that a higher evaluation of 70 percent effective prior to September 18, 2018, but no higher is warranted. An examination of the findings of the record reveal that the Veteran suffered from irritable behavior and angry outburst with little or no provocation which is typically expressed by verbal or physical aggression directed towards people or objects. Similarly, the July 2010 and 2011 examiners diagnosed symptoms of increased angry outburst and irritability. Furthermore, sleep impairment, memory loss, paranoia, daily panic attacks, and auditory hallucinations have been diagnosed as increasing in severity off and on during this period. The Board has determined that the Veteran’s history of suicide ideation; moreover, the Veteran’s documented mood swings of rage and anger fall within the criteria of unprovoked irritability with periods of violence and more closely reflect the criteria contemplated by a 70 percent PTSD evaluation. The Veteran’s symptomology prior to September 18, 2018, does not meet the criteria that would warrant a schedular 100 percent evaluation. The evidence of records reveals that the Veteran does not currently suffer from gross impairment in thought processes or communication; 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. The Board acknowledges that the Veteran has been diagnosed with auditory hallucinations and periods of increased angry outburst and irritability. However, the frequency, severity and duration of these symptoms more approximate a 70 percent evaluation. Therefore, resolving all doubt in the Veteran’s favor, the Board finds that the level of severity of the Veteran’s PTSD satisfy the criteria for a higher disability evaluation under DC 9411 and the Veteran’s claim for an increased 70 percent rating prior to September 18, 2018, is granted. Further support for this finding includes that the Veteran was afforded a VA examination in July 2015. The examiner noted a diagnosis of PTSD and unspecified depression. The examiner characterized his PTSD as manifesting 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 symptoms included depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, mild memory loss, disturbance of motivation or mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner also diagnosed the PTSD symptoms of irritable behavior and angry outburst with little or no provocation which is typically expressed by verbal or physical aggression directed towards people or objects. Regarding social impairment, the Veteran reported that he lived with a girlfriend and got along with his kids and grandkids. He also went on motorcycle rides with other veterans. He reported conflict with prior supervisors. Regarding occupational impairment, the Veteran reported being unemployed. He stated that he retired due to back and leg pain and continues to experience pain in all his joints. The examiner opined the following, “given [the] Veteran’s history and presentation, his functioning level indicates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning (routine behavior, self-care, and conversation normal). Consequently, [the] Veteran appears able to work in a setting in which he worked alone with minimal contact with superiors and was able to take occasional breaks if needed.” The Veteran appeared at a Board hearing in September 2017. He testified that he last worked in 2008 doing general maintenance in a store. However, he experienced pain in his joints, including his back and shoulder. Additionally, he would get angry at himself and his supervisor and he quit because he was unable to manage his temper. He also stated that he went to college for architectural drafting but is unable to sit or stand or concentrate sufficiently to perform this work. The Veteran was afforded a VA PTSD examination in September 2018. The examiner noted a diagnosis of PTSD that manifested as occupational and social impairment with deficiencies in most areas, such as work, school family, judgment, thinking, and/or mood. Socially, the Veteran continues to maintain his relationships with his girlfriend and a few friends and family. Occupationally, he reported that he worked in a furniture store but had to leave after having conflict with his supervisor. The examiner stated that the Veteran’s mental health problems have worsened since his last evaluation. He experiences frequent nightmares and flashbacks and is triggered easily by loud noises. He also reported an exaggerated startle response, decreased enjoyment, detachment from others, irritability, hypervigilance, frequent panic attacks, chronic sleep disturbance, memory loss, impaired concentration, guilt, disorientation to time or place, intermittent inability to perform activities of daily living, obsessional rituals, and difficulty establishing and maintaining relationships. He denied any suicidal ideation or intent. However, the Veteran did report becoming angry “really fast” and being unable to control his reactions. In an April 2019 rating decision, the RO increased the Veteran’s PTSD evaluation to 100 percent, effective September 18, 2018, the date of his VA examination and granted the Veteran a TDIU, effective July 15, 2015. Based on a review of the record, the Board finds, with resolution of doubt that, that a higher evaluation of 70 percent effective prior to September 18, 2018, but no higher is warranted. An examination of the findings of the July 2015 examiner reveal that the Veteran suffered from irritable behavior and angry outburst with little or no provocation which is typically expressed by verbal or physical aggression directed towards people or objects. Moreover, the September 2018 examiner noted a diagnosis of PTSD that manifested as occupational and social impairment with deficiencies in most areas, such as work, school family, judgment, thinking, and/or mood. The examiner also diagnosed the symptoms of irritability, hypervigilance, frequent panic attacks, chronic sleep disturbance, memory loss, impaired concentration, guilt, disorientation to time or place, intermittent inability to perform activities of daily living, obsessional rituals, and difficulty establishing and maintaining relationships. Furthermore, the Veteran did report becoming angry “really fast” and being unable to control his reactions. Lastly, the Board acknowledges that the Veteran’s documented outburst with little or no provocation which are typically expressed by verbal or physical aggression directed towards people or objects places him in persistent danger of harming others or himself. The September 2018 examination showed a worsening, warranting the 100 percent rating as of that date. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability prior to December 16, 2011 is remanded. In the prior decision, the Board granted a TDIU as of December 16, 2011 as the date the schedular criteria were met. As indicated above, the Board granted a 70 percent rating prior to September 18, 2018, for the Veteran’s PTSD. The Board has determined that any decision with respect to an increased rating is part and parcel to the Veteran’s claim for a TDIU, and needs review by the regional office (RO). As such, adjudication of the TDIU claim is remanded. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture.   The matters are REMANDED for the following action: Develop all necessary evidence to consider entitlement to a TDIU prior to December 16, 2011. This should include promulgation of the rating for this determination. Thereafter, adjudicate that matter in accordance with applicable procedures. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, 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.